Exhibit 4
U.S. $1,000,000,000
TERM CREDIT AGREEMENT
Dated as of July 17, 2013
among
OHIO POWER COMPANY
AEP GENERATION RESOURCES INC.
APPALACHIAN POWER COMPANY
KENTUCKY POWER COMPANY
as the Borrowers
AMERICAN ELECTRIC POWER COMPANY, INC.
as the Guarantor
THE LENDERS NAMED HEREIN
as Initial Lenders
and
WELLS FARGO BANK, NATIONAL ASSOCIATION
as Administrative Agent
WELLS FARGO SECURITIES, LLC THE BANK OF TOKYO-MITSUBISHI UFJ, LTD. J.P. MORGAN SECURITIES LLC CITIGROUP GLOBAL MARKETS INC. KEYBANK NATIONAL ASSOCIATION RBS SECURITIES INC. |
Joint Lead Arrangers and Bookrunners
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD. Syndication Agent | JPMORGAN CHASE BANK, N.A. CITIBANK, N.A. KEYBANK NATIONAL ASSOCIATION THE ROYAL BANK OF SCOTLAND FINANCE (IRELAND) Documentation Agents |
| TABLE OF CONTENTS | ||
| Page | ||
| Article I DEFINITIONS AND ACCOUNTING TERMS | 1 | |
| Section 1.01. Certain Defined Terms. | 1 | |
| Section 1.02. Computation of Time Periods. | 20 | |
| Section 1.03. Accounting Terms. | 20 | |
| Section 1.04. Other Interpretive Provisions. | 20 | |
| Article II AMOUNTS AND TERMS OF THE ADVANCES | 20 | |
| Section 2.01. The Advances. | 20 | |
| Section 2.02. Making the Advances. | 21 | |
| Section 2.03. Fees. | 22 | |
| Section 2.04. Termination or Reduction of the Commitments. | 23 | |
| Section 2.05. Repayment of Advances. | 23 | |
| Section 2.06. Evidence of Indebtedness. | 23 | |
| Section 2.07. Interest on Advances. | 24 | |
| Section 2.08. Interest Rate Determination. | 25 | |
| Section 2.09. Optional Conversion of Advances. | 25 | |
| Section 2.10. Prepayments of Advances. | 26 | |
| Section 2.11. Increased Costs. | 27 | |
| Section 2.12. Illegality. | 28 | |
| Section 2.13. Payments and Computations. | 28 | |
| Section 2.14. Taxes. | 29 | |
| Section 2.15. Sharing of Payments, Etc. | 33 | |
| Section 2.16. Mitigation Obligations; Replacement of Lenders. | 34 | |
| Section 2.17. Assumption of Obligations. | 35 | |
| Article III CONDITIONS PRECEDENT | 36 | |
| Section 3.01. Conditions Precedent to Effectiveness of this Agreement and Initial Advance. | 36 | |
| Section 3.02. Conditions Precedent to each Advance. | 38 | |
| Article IV REPRESENTATIONS AND WARRANTIES | 38 | |
| Section 4.01. Representations and Warranties of the Loan Parties. | 38 | |
| Article V COVENANTS OF THE LOAN PARTIES | 41 | |
| Section 5.01. Affirmative Covenants. | 41 | |
| Section 5.02. Negative Covenants. | 44 | |
| Section 5.03. Financial Covenant. | 47 | |
| Article VI GUARANTY | 47 | |
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| Section 6.01. Guaranty. | 47 | |
| Section 6.02. Guaranty Absolute and Unconditional. | 47 | |
| Section 6.03. Authorization; Other Agreements. | 48 | |
| Section 6.04. Independent Obligations. | 48 | |
| Section 6.05. Waivers. | 48 | |
| Section 6.06. Limitation of Parent Guaranty. | 49 | |
| Section 6.07. Termination. | 50 | |
| Section 6.08. Reliance. | 50 | |
| Article VII EVENTS OF DEFAULT | 50 | |
| Section 7.01. Events of Default. | 50 | |
| Article VIII THE ADMINISTRATIVE AGENT | 53 | |
| Section 8.01. Authorization and Action. | 53 | |
| Section 8.02. Agent’s Reliance, Etc. | 53 | |
| Section 8.03. Wells Fargo and its Affiliates. | 54 | |
| Section 8.04. Lender Credit Decision. | 54 | |
| Section 8.05. Indemnification. | 54 | |
| Section 8.06. Successor Agent. | 55 | |
| Article IX MISCELLANEOUS | 56 | |
| Section 9.01. Amendments, Etc. | 56 | |
| Section 9.02. Notices, Etc. | 56 | |
| Section 9.03. No Waiver; Remedies. | 58 | |
| Section 9.04. Costs and Expenses. | 58 | |
| Section 9.05. Right of Set-off. | 60 | |
| Section 9.06. Binding Effect. | 61 | |
| Section 9.07. Assignments and Participations. | 61 | |
| Section 9.08. Confidentiality. | 65 | |
| Section 9.09. Governing Law. | 65 | |
| Section 9.10. Severability; Survival. | 66 | |
| Section 9.11. Execution in Counterparts. | 66 | |
| Section 9.12. Jurisdiction, Etc. | 66 | |
| Section 9.13. Waiver of Jury Trial. | 67 | |
| Section 9.14. USA Patriot Act. | 67 | |
| Section 9.15. No Fiduciary Duty. | 67 | |
| Section 9.16. Defaulting Lenders. | 68 | |
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EXHIBITS AND SCHEDULES
| EXHIBIT A ----------- | Form of Notice of Borrowing |
| EXHIBIT B ----------- | Form of Assignment and Assumption |
| EXHIBIT C ----------- | Form of Opinion of Counsel for the Loan Parties |
| EXHIBIT D ----------- | Form of Opinion of Counsel for the Administrative Agent |
| EXHIBIT E-1 ----------- | Form of U.S. Tax Compliance Certificate (For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes) |
| EXHIBIT E-2 ----------- | Form of U.S. Tax Compliance Certificate (For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes) |
| EXHIBIT E-3 ----------- | Form of U.S. Tax Compliance Certificate (For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes) |
| EXHIBIT E-4 ----------- | Form of U.S. Tax Compliance Certificate (For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes) |
| EXHIBIT F ----------- | Form of Borrower Assumption Agreement |
| SCHEDULE I ---------- | Schedule of Initial Lenders |
| SCHEDULE 4.01(m) --- | Schedule of Significant Subsidiaries |
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TERM CREDIT AGREEMENT
TERM CREDIT AGREEMENT, dated as of July 17, 2013 (this “Agreement”), among OHIO POWER COMPANY, an Ohio corporation (“OPCo”), AEP GENERATION RESOURCES INC., a Delaware corporation (“AGR”), APPALACHIAN POWER COMPANY, a Virginia corporation (“APCo”), KENTUCKY POWER COMPANY, a Kentucky corporation (“KPCo”, and collectively with OPCo, AGR and APCo, the “Borrowers” and each a “Borrower”), AMERICAN ELECTRIC POWER COMPANY, INC., a New York corporation (“AEP” or the “Guarantor”), the banks, financial institutions and other institutional lenders listed on the signatures pages hereof (the “Initial Lenders”) and WELLS FARGO BANK, NATIONAL ASSOCIATION (“Wells Fargo”), as administrative agent (in such capacity, the “Administrative Agent”) for the Lenders (as hereinafter defined).
PRELIMINARY STATEMENT:
The Borrowers have requested that the Lenders agree, on the terms and conditions set forth herein, to provide the Borrowers a $1,000,000,000 delayed draw term loan credit facility to be used for general corporate purposes, including, without limitation, the refinancing of existing Debt. The Lenders have indicated their willingness to provide such a facility on the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements contained herein, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms.
As used in this Agreement, the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined):
“Administrative Agent” has the meaning specified in the recital of parties to this Agreement.
“Administrative Questionnaire” means an administrative questionnaire in a form supplied by the Administrative Agent.
“Advance” means an advance by a Lender to OPCo as part of a Borrowing and refers to a Base Rate Advance or a Eurodollar Rate Advance, as such advance may be assumed by the other Borrowers from time to time pursuant to Section 2.17.
“AEP” has the meaning specified in the recital of parties to this Agreement.
“Affiliate” means, as to any Person, any other Person that, directly or indirectly, controls, is controlled by or is under common control with such Person or is a director or officer of such Person. For purposes of this definition, the term “control” (including the terms “controlling”, “controlled by” and “under common control with”) of a Person
“Agent Parties” has the meaning specified in Section 9.02(c).
“Agent’s Account” means the account of the Administrative Agent maintained by the Administrative Agent with Wells Fargo at its office located at 1525 West W.T. Harris Blvd, 1B1, Charlotte, North Carolina 28262, MAC D1109-019, ABA Number: 121000248, Account Name: AGENCY SERVICES CLEARING A/C, Account No. 01104331628807, Reference: Ohio Power Company, or such other account of the Administrative Agent as the Administrative Agent may from time to time designate in a written notice to the Lenders and the Borrowers.
“AGR” has the meaning specified in the recital of parties to this Agreement.
“AGR Assumption” has the meaning specified in Section 2.17(a).
“AGR Transfer” means the transfer from OPCo to AGR of certain generation assets with a generation capacity of approximately 9,200 MW, as described in FERC Docket No. EC13-26-000.
“APCo” has the meaning specified in the recital of parties to this Agreement.
“APCo Assumption” has the meaning specified in Section 2.17(b).
“APCo Transfer” means the transfer from AGR to APCo of (i) all AGR’s interest in the Amos Plant Unit 3 with a generation capacity of approximately 867 MW and (ii) 50% of its interest in Mitchell Plant with a generation capacity of approximately 780 MW.
“Applicable Law” means (i) all applicable common law and principles of equity and (ii) all applicable provisions of all (A) constitutions, statutes, rules, regulations and orders of governmental bodies, (B) Governmental Approvals and (C) orders, decisions, judgments and decrees of all courts (whether at law or in equity or admiralty) and arbitrators.
“Applicable Lending Office” means, with respect to each Lender, such Lender’s Domestic Lending Office in the case of a Base Rate Advance and such Lender’s Eurodollar Lending Office in the case of a Eurodollar Rate Advance.
“Applicable Margin” means, with respect to any Base Rate Advance and any Eurodollar Rate Advance owing by any Borrower, at all times during which any Applicable Rating Level of such Borrower set forth below is in effect, the rate per annum (except as provided below) for such Type of Advance set forth below next to such Applicable Rating Level of such Borrower:
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Applicable Rating Level | Applicable Margin for Eurodollar Rate Advances | Applicable Margin for Base Rate Advances |
| 1 | 0.875% | 0.000% |
| 2 | 0.875% | 0.000% |
| 3 | 1.000% | 0.000% |
| 4 | 1.250% | 0.250% |
| 5 | 1.500% | 0.500% |
| 6 | 1.875% | 0.875% |
provided, that the Applicable Margins set forth above shall be increased, for each Applicable Rating Level, upon the occurrence and during the continuance of any Event of Default by 2.00% per annum.
Any change in the Applicable Margin resulting from a change in the Applicable Rating Level shall become effective upon the date of announcement of any change in the Moody’s Rating or the S&P Rating that results in such change in the Applicable Rating Level.
“Applicable Rating Level” with respect to any Borrower at any time shall be determined in accordance with the then-applicable S&P Rating of such Borrower (other than with respect to AGR, whose Applicable Rating Level shall be determined in accordance with the then-applicable S&P Rating of AEP) and the then-applicable Moody’s Rating of such Borrower (other than with respect to AGR, whose Applicable Rating Level shall be determined in accordance with the then-applicable Moody’s Rating of AEP) as follows:
| S&P Rating/Moody’s Rating | Applicable Rating Level |
| S&P Rating A or higher or Moody’s Rating A2 or higher | 1 |
| S&P Rating A- or Moody’s Rating A3 | 2 |
| S&P Rating BBB+ or Moody’s Rating Baa1 | 3 |
| S&P Rating BBB or Moody’s Rating Baa2 | 4 |
| S&P Rating BBB- or Moody’s Rating Baa3 | 5 |
| S&P Rating BB+ or below or Moody’s Rating Ba1 or below, or no S&P Rating or Moody’s Rating | 6 |
The Applicable Rating Level for any day shall be determined based upon the higher of the S&P Rating and the Moody’s Rating in effect on such day. If the S&P Rating and the Moody’s Rating are not the same (i.e., a “split rating”), the higher of such ratings shall control, unless (i) the ratings differ by more than one level, in which case the rating one
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level below the higher of the two ratings shall control, or (ii) either rating is below BBB- or Baa3 (as applicable), in which case the lower of the two ratings shall control.
“Approval” means, with respect to each Borrower, the approvals of FERC, the Public Utilities Commission of Ohio, the Virginia State Corporation Commission, the Kentucky Public Service Commission and the West Virginia Public Service Commission, as applicable.
“Approved Fund” means any Fund that is administered or managed by (i) a Lender, (ii) an Affiliate of a Lender or (iii) an entity or an Affiliate of an entity that administers or manages a Lender.
“Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 9.07), and accepted by the Administrative Agent, in substantially the form of Exhibit B hereto or any other form approved by the Administrative Agent.
“Availability Termination Date” means the earliest of (i) the date all Commitments have been fully advanced pursuant to Section 2.02, (ii) the date all Commitments have been terminated pursuant to Section 2.04 or 7.01, (iii) the date of the AGR Assumption and (iv) February 13, 2014.
“Available Commitment” means, for each Lender at any time on any day, the unused portion of such Lender’s Commitment, computed after giving effect to all Advances made or to be made on such day and the application of proceeds therefrom.
“Available Commitments” means the aggregate of the Lenders’ Available Commitments hereunder.
“Bankruptcy Event” means, with respect to any Person, such Person becomes the subject of a proceeding under any Debtor Relief Law, or has had 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 Governmental Authority acting in a similar capacity) appointed for it, or, in the good faith determination of the Administrative Agent, has taken any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any such proceeding or appointment; provided that, a Bankruptcy Event shall not result solely by virtue of any ownership interest, or acquisition of any equity interest, in such Person by a Governmental Authority so long as such ownership interest does not result in or provide such Person with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Person (or such Governmental Authority) to reject, repudiate, disavow or disaffirm obligations under any agreement in which it commits to extend credit.
“Base Rate” means a fluctuating interest rate per annum in effect from time to time, which rate per annum shall at all times be equal to the highest of the following rates then in effect:
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| (i) | the rate of interest announced publicly by Wells Fargo in Charlotte, North Carolina, from time to time, as Wells Fargo’s prime commercial lending rate or corporate base rate; |
| (ii) | 1/2 of 1% per annum above the Federal Funds Rate; and |
| (iii) | the rate of interest per annum equal to the Eurodollar Rate as determined on such day (or if such day is not a Business Day, on the next preceding Business Day) that would be applicable to a Eurodollar Rate Advance having an Interest Period of one month, plus 1%. |
“Base Rate Advance” means an Advance that bears interest as provided in Section 2.07(a).
“Borrower Assumption Agreement” means an assumption agreement in substantially the form of Exhibit F hereto or any other form approved by the Administrative Agent.
“Borrowers” has the meaning specified in the recital of parties to this Agreement.
“Borrowing” means a borrowing by a Borrower consisting of simultaneous Advances of the same Type, having the same Interest Period and ratably made or Converted on the same day by each of the Lenders pursuant to Section 2.02 or 2.09, as the case may be. All Advances to a Borrower of the same Type, having the same Interest Period and made or Converted on the same day shall be deemed a single Borrowing hereunder until repaid or next Converted.
“Borrowing Date” means the date of any Borrowing.
“BTMU” means The Bank of Tokyo-Mitsubishi UFJ, Ltd.
“Business Day” means a day of the year on which banks are not required or authorized by law to close in New York City and, if the applicable Business Day relates to any Eurodollar Rate Advances, Business Day also includes a day on which dealings are carried out in the London interbank market.
“Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities,
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“Closing Date” means July 17, 2013.
“Commitment” means, for each Lender, the obligation of such Lender to make Advances to OPCo in an aggregate amount no greater than the amount set forth on Schedule I hereto or, if such Lender has entered into any Assignment and Assumption, set forth for such Lender in the Register maintained by the Administrative Agent pursuant to Section 9.07(c), in each such case as such amount may be reduced from time to time pursuant to Section 2.04.
“Commitment Fee Rate” means, at any time, the rate per annum set forth below next to the Applicable Rating Level of OPCo in effect at such time:
Applicable Rating Level | Commitment Fee Rate |
| 1 | 0.125% |
| 2 | 0.125% |
| 3 | 0.150% |
| 4 | 0.200% |
| 5 | 0.250% |
| 6 | 0.300% |
A change in the Commitment Fee Rate resulting from a change in the Applicable Rating Level of OPCo shall become effective upon the date of public announcement of a change in the Moody’s Rating of OPCo or the S&P Rating of OPCo that results in a change in the Applicable Rating Level.
“Commitment Percentage” means, as to any Lender as of any date of determination, the percentage describing such Lender’s pro rata share of the Commitments set forth in the Register from time to time; provided that in the case of Section 9.16 when a Defaulting Lender shall exist, “Commitment Percentage” means the percentage of the total Commitments (disregarding any Defaulting Lender’s Commitment) represented by such Lender’s Commitment. If the Commitments have terminated or expired, the Commitment Percentages shall be determined based upon the Commitments most recently in effect, giving effect to any assignments and to any Lender’s status as a Defaulting Lender at the time of determination.
“Commitments” means the aggregate of the Lenders’ Commitments hereunder.
“Communications” has the meaning specified in Section 9.02(b).
“Confidential Information” means information that a Loan Party furnishes to the Administrative Agent, the Joint Lead Arrangers or any Lender in a writing designated as confidential, but does not include any such information that is or becomes generally
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“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by overall gross receipts or income, or net income (however denominated) or that are franchise Taxes, privilege Taxes, license Taxes or branch profits Taxes.
“Consolidated Capital” means, with respect to any Loan Party at any date of determination, the sum of (i) Consolidated Debt of such Loan Party and (ii) the consolidated equity of all classes of stock (whether common, preferred, mandatorily convertible preferred or preference) of such Loan Party and its Consolidated Subsidiaries, in each case determined in accordance with GAAP, but including Equity-Preferred Securities issued by such Loan Party and its Consolidated Subsidiaries and excluding the funded pension and other postretirement benefit plans, net of tax, components of accumulated other comprehensive income (loss).
“Consolidated Debt” of any Loan Party means the total principal amount of all Debt described in clauses (i) through (v) of the definition of Debt and Guaranties of such Debt of such Loan Party and its Consolidated Subsidiaries, excluding, however, (i) Debt of AEP Credit, Inc. that is non-recourse to such Loan Party, (ii) Stranded Cost Recovery Bonds, and (iii) Equity-Preferred Securities not to exceed 10% of Consolidated Capital of such Loan Party and its Consolidated Subsidiaries (calculated for purposes of this clause without reference to any Equity-Preferred Securities); provided that Guaranties of Debt included in the total principal amount of Consolidated Debt shall not be added to such total principal amount.
“Consolidated Subsidiary” means, with respect to any Person at any time, any Subsidiary or other Person the accounts of which would be consolidated with those of such first Person in its consolidated financial statements in accordance with GAAP.
“Consolidated Tangible Net Assets” means, on any date of determination and with respect to any Person at any time, the total of all assets (including revaluations thereof as a result of commercial appraisals, price level restatement or otherwise) appearing on the consolidated balance sheet of such Person and its Consolidated Subsidiaries most recently delivered to the Lenders pursuant to Section 5.01(i) as of such date of determination, net of applicable reserves and deductions, but excluding goodwill, trade names, trademarks, patents, unamortized debt discount and all other like intangible assets (which term shall not be construed to include such revaluations), less the aggregate of the consolidated current liabilities of such Person and its Consolidated Subsidiaries appearing on such balance sheet.
“Convert”, “Conversion” and “Converted” each refers to a conversion of Advances of one Type into Advances of the other Type, or the selection of a new, or the renewal of the same, Interest Period for Eurodollar Rate Advances, pursuant to Section 2.08 or 2.09.
“Credit Party” means the Administrative Agent or any Lender.
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“CGMI” means Citigroup Global Markets Inc.
“Debt” of any Person means, without duplication, (i) all indebtedness of such Person for borrowed money, (ii) all obligations of such Person for the deferred purchase price of property or services (other than trade payables not overdue by more than 60 days incurred in the ordinary course of such Person’s business), (iii) all obligations of such Person evidenced by notes, bonds, debentures or other similar instruments, (iv) all obligations of such Person as lessee under leases that have been, in accordance with GAAP, recorded as capital leases, including, without limitation, the leases described in clause (iv) of Section 5.02(c), (v) all obligations of such Person in respect of reimbursement agreements with respect to acceptances, letters of credit (other than trade letters of credit) or similar extensions of credit, (vi) all Guaranties and (vii) all reasonably quantifiable obligations under indemnities or under support or capital contribution agreements, and other reasonably quantifiable obligations (contingent or otherwise) to purchase or otherwise to assure a creditor against loss in respect of, or to assure an obligee against loss in respect of, all Debt of others referred to in clauses (i) through (vi) above guaranteed directly or indirectly in any manner by such Person, or in effect guaranteed directly or indirectly by such Person through an agreement (A) to pay or purchase such Debt or to advance or supply funds for the payment or purchase of such Debt, (B) to purchase, sell or lease (as lessee or lessor) property, or to purchase or sell services, primarily for the purpose of enabling the debtor to make payment of such Debt or to assure the holder of such Debt against loss, (C) to supply funds to or in any other manner invest in the debtor (including any agreement to pay for property or services irrespective of whether such property is received or such services are rendered) or (D) otherwise to assure a creditor against loss.
“Debtor Relief Laws” means the Bankruptcy Code of the United States of America, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect.
“Default” means any Event of Default or any event that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
“Defaulting Lender” means, subject to Section 9.16(b), any Lender that (i) has failed to (A) fund all or any portion of its Advances within two Business Days of the date such Advances were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrowers in writing that such failure is the result of such Lender’s good faith determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable Default, shall be specifically identified in such writing) has not been satisfied, or (B) pay to any Credit Party any other amount required to be paid by it hereunder within two Business Days of the date when due, (ii) has notified any Borrower or any Credit Party in writing that it does not intend to comply with its funding obligations hereunder or generally under other agreements in which it commits to extend credit, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund an Advance
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“Disclosure Documents” means (i) with respect to AEP, OPCo and APCo, AEP’s Annual Report on Form 10-K, as filed with the SEC, for the fiscal year ended December 31, 2012, Quarterly Report on Form 10-Q, as filed with the SEC, for the period ended March 31, 2013, and Current Reports on Form 8-K, as filed with the SEC after the date of filing of the Quarterly Report on Form 10-Q for the period ended March 31, 2013 but prior to the date hereof, and (ii) with respect to KPCo, its Annual Report for the fiscal year ended December 31, 2012 and its Quarterly Report for the period ended March 31, 2013, with, in each case, any accompanying notes, all prepared in accordance with GAAP and as filed on AEP’s website.
“Dollars” and the symbol “$” mean lawful currency of the United States of America.
“Domestic Lending Office” means, with respect to any Lender, the office of such Lender specified as its “Domestic Lending Office” on such Lender’s Administrative Questionnaire or in the Assignment and Assumption pursuant to which it became a Lender, or such other office of such Lender as such Lender may from time to time specify in writing to the Borrowers and the Administrative Agent.
“Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 9.07(b)(iii), (v) and (vi) (subject to such consents, if any, as may be required under Section 9.07(b)(iii)).
“Environmental Action” means any action, suit, demand, demand letter, claim, notice of non-compliance or violation, notice of liability or potential liability, investigation, proceeding, consent order or consent agreement relating in any way to any Environmental Law, Environmental Permit or Hazardous Materials or arising from alleged injury or threat of injury to health, safety or the environment, including, without limitation, (i) by any Governmental Authority for enforcement, cleanup, removal, response, remedial or other actions or damages and (ii) by any Governmental Authority or any third party for damages, contribution, indemnification, cost recovery, compensation or injunctive relief.
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“Environmental Law” means any federal, state, local or foreign statute, law, ordinance, rule, regulation, code, order, judgment, decree or judicial or agency interpretation, policy or guidance relating to pollution or protection of the environment, health, safety or natural resources, including, without limitation, those relating to the use, handling, transportation, treatment, storage, disposal, release or discharge of Hazardous Materials.
“Environmental Permit” means any permit, approval, identification number, license or other authorization required under any Environmental Law.
“Equity-Preferred Securities” means (i) debt or preferred securities that are mandatorily convertible or mandatorily exchangeable into common shares of a Loan Party and (ii) any other securities, however denominated, including but not limited to hybrid capital and trust originated preferred securities, (A) issued by a Loan Party or any Consolidated Subsidiary of a Loan Party, (B) that are not subject to mandatory redemption or the underlying securities, if any, of which are not subject to mandatory redemption, (C) that are perpetual or mature no less than 30 years from the date of issuance, (D) the indebtedness issued in connection with which, including any guaranty, is subordinate in right of payment to the unsecured and unsubordinated indebtedness of the issuer of such indebtedness or guaranty, and (E) the terms of which permit the deferral of the payment of interest or distributions thereon to a date occurring after the Termination Date.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings issued thereunder.
“ERISA Affiliate” means, with respect to any Person, each trade or business (whether or not incorporated) that is considered to be a single employer with such entity within the meaning of Section 414(b), (c), (m) or (o) the Internal Revenue Code.
“ERISA Event” means (i) the termination of or withdrawal from any Plan by a Loan Party or any of its ERISA Affiliates, (ii) the failure by a Loan Party or any of its ERISA Affiliates to comply with ERISA or the related provisions of the Internal Revenue Code with respect to any Plan or (iii) the failure by a Loan Party or any of its Subsidiaries to comply with Applicable Law with respect to any Foreign Plan.
“Eurocurrency Liabilities” has the meaning assigned to that term in Regulation D of the Board of Governors of the Federal Reserve System, as in effect from time to time.
“Eurodollar Lending Office” means, with respect to any Lender, the office of such Lender specified as its “Eurodollar Lending Office” on such Lender’s Administrative Questionnaire or in the Assignment and Assumption pursuant to which it became a Lender (or, if no such office is specified, its Domestic Lending Office), or such other office of such Lender as such Lender may from time to time specify in writing to the Borrowers and the Administrative Agent.
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“Eurodollar Rate” means, for any Interest Period for each Eurodollar Rate Advance comprising part of the same Borrowing, an interest rate per annum equal to the rate of interest per annum (rounded upward to the nearest 1/16 of 1%) appearing on Reuters Screen LIBOR01 Page (or any successor page of such service, or any comparable page of another recognized interest rate reporting service then being used generally by the Administrative Agent to obtain such interest rate quotes) as the London interbank offered rate for deposits in Dollars at approximately 11:00 A.M. (London time) two Business Days before the first day of such Interest Period for a period equal to such Interest Period. If, for any reason, such rate is not available, the term “Eurodollar Rate” means an interest rate per annum equal to the average rate per annum (rounded upward to the nearest 1/16 of 1%) at which deposits in Dollars are offered by the Reference Banks to prime banks in the London interbank market at 11:00 A.M. (London time) two Business Days before the first day of such Interest Period in an amount substantially equal to the Reference Banks’ pro rata share of such Borrowing to be outstanding during such Interest Period and for a period equal to such Interest Period.
“Eurodollar Rate Advance” means an Advance that bears interest as provided in Section 2.07(b).
“Eurodollar Rate Reserve Percentage” of any Lender for any Interest Period for each Eurodollar Rate Advance 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 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 (or with respect to any other category of liabilities that includes deposits by reference to which the interest rate on Eurodollar Rate Advances is determined) having a term equal to such Interest Period.
“Event of Default” has the meaning specified in Section 7.01.
“Exchange Act” has the meaning specified in Section 7.01(f).
“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by overall gross receipts or income, or net income (however denominated), franchise Taxes, privilege Taxes, license Taxes or branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its Applicable Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in an Advance or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Advance
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“Existing Credit Agreement” means the Term Credit Agreement, dated as of February 13, 2013, among AEP, the lenders party thereto and Wells Fargo, as administrative agent.
“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, and any agreements entered into pursuant to Section 1471(b)(1) of the Internal Revenue Code.
“Federal Funds Rate” means, for any period, a fluctuating interest rate per annum equal for each day during such period to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average of the quotations for such day on such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.
“FERC” means the Federal Energy Regulatory Commission.
“Foreign Lender” means a Lender that is not a U.S. Person.
“Foreign Plan” has the meaning specified in Section 4.01(i).
“Fraction” means, for any Borrower at any time, a fraction, the numerator of which shall be the aggregate amount of outstanding Advances owing by such Borrower at such time, and the denominator of which shall be the sum of all outstanding Advances at such time.
“Fund” means any Person (other than a natural Person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities.
“GAAP” has the meaning specified in Section 1.03.
“Governmental Approval” means any authorization, consent, approval, license or exemption of, registration or filing with, or report or notice to, any Governmental Authority.
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“Governmental Authority” means the government of the United States of America or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).
“Guarantor” has the meaning specified in the recital of parties to this Agreement.
“Guaranty” of any Person means any obligation, contingent or otherwise, of such Person (i) to pay any Debt of any other Person or (ii) incurred in connection with the issuance by a third person of a Guaranty of Debt of any other Person (whether such obligation arises by agreement to reimburse or indemnify such third Person or otherwise).
“Guaranteed Obligations” shall have the meaning specified in Section 6.01.
“Hazardous Materials” means (i) petroleum and petroleum products, byproducts or breakdown products, radioactive materials, asbestos-containing materials, polychlorinated biphenyls and radon gas and (ii) any other chemicals, materials or substances designated, classified or regulated as hazardous or toxic or as a pollutant or contaminant under any Environmental Law.
“Indemnified Party” has the meaning specified in Section 9.04(b).
“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.
“Initial Lenders” has the meaning specified in the recital of parties to this Agreement.
“Interest Period” means, for each Eurodollar Rate Advance comprising part of the same Borrowing, the period commencing on the date of such Eurodollar Rate Advance or the date of the Conversion of any Base Rate Advance into such Eurodollar Rate Advance and ending on the last day of the period selected by the applicable Borrower pursuant to the provisions below and, thereafter, with respect to Eurodollar Rate Advances, each subsequent period commencing on the last day of the immediately preceding Interest Period and ending on the last day of the period selected by such Borrower pursuant to the provisions below. The duration of each such Interest Period shall be one, two, three or six months (or, for any Borrowing, any period specified by the applicable Borrower that is shorter than one month, if all Lenders agree), as the applicable Borrower may, upon notice received by the Administrative Agent not later than 11:00 A.M. on the third Business Day prior to the first day of such Interest Period, select; provided, however, that:
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| (i) | no Borrower may select any Interest Period that ends after the Termination Date; |
| (ii) | Interest Periods commencing on the same date for Eurodollar Rate Advances comprising part of the same Borrowing shall be of the same duration; |
| (iii) | whenever the last day of any Interest Period would otherwise occur on a day other than a Business Day, the last day of such Interest Period shall be extended to occur on the next succeeding Business Day, provided, however, that, if such extension would cause the last day of such Interest Period to occur in the next following calendar month, the last day of such Interest Period shall occur on the next preceding Business Day; and |
| (iv) | whenever the first day of any Interest Period occurs on a day of an initial calendar month for which there is no numerically corresponding day in the calendar month that succeeds such initial calendar month by the number of months equal to the number of months in such Interest Period, such Interest Period shall end on the last Business Day of such succeeding calendar month. |
“Internal Revenue Code” means the Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated and rulings issued thereunder.
“IRS” means the United States Internal Revenue Service.
“Joint Lead Arrangers” means Wells Fargo Securities, BTMU, JPMS, CGMI, KeyBank and RBSSI.
“JPMCB” means JPMorgan Chase Bank, N.A.
“JPMS” means J.P. Morgan Securities LLC.
“KeyBank” means KeyBank National Association.
“KPCo” has the meaning specified in the recital of parties to this Agreement.
“KPCo Assumption” has the meaning specified in Section 2.17(c).
“KPCO Transfer” means the transfer from AGR to KPCo of 50% of AGR’s interest in the Mitchell Plant with a generation capacity of approximately 780 MW.
“Lenders” means, at any time, collectively, (i) the Initial Lenders (other than any such Initial Lenders that have previously assigned all of their respective Advances and Commitments to other Persons in accordance with Section 9.07(b) at such time), and (ii) any other Persons that have become Lenders holding Advances and/or Commitments at such time in accordance with Section 9.07(b).
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“Lien” means any lien, security interest or other charge or encumbrance of any kind, or any other type of preferential arrangement, including, without limitation, the lien or retained security title of a conditional vendor and any easement, right of way or other encumbrance on title to real property.
“Loan Documents” means, collectively, (i) the Commitment Letter, dated as of June 27, 2013, among OPCo, Wells Fargo Securities and Wells Fargo, (ii) the Fee Letter, dated as of June 27, 2013, among OPCo, Wells Fargo Securities and Wells Fargo, (iii) this Agreement, (iv) each promissory note issued pursuant to Section 2.06(d) and (v) each Borrower Assumption Agreement executed pursuant to Section 2.17, in each case, as any of the foregoing may be amended, supplemented or modified from time to time.
“Loan Parties” means the Borrowers and the Guarantor.
“Margin Regulations” means Regulations T, U and X of the Board of Governors of the Federal Reserve System, as in effect from time to time.
“Margin Stock” has the meaning specified in the Margin Regulations.
“Material Adverse Change” means, with respect to any Loan Party, any material adverse change (i) in the business, condition (financial or otherwise) or operations of such Loan Party and its Subsidiaries, taken as a whole, or (ii) that is reasonably likely to affect the legality, validity or enforceability of this Agreement against such Loan Party or the ability of such Loan Party to perform its obligations under this Agreement.
“Material Adverse Effect” means, with respect to any Loan Party, a material adverse effect (i) on the business, condition (financial or otherwise) or operations of such Loan Party and its Subsidiaries, taken as a whole, or (ii) that is reasonably likely to affect the legality, validity or enforceability of this Agreement against such Loan Party or the ability of such Loan Party to perform its obligations under this Agreement.
“Moody’s” means Moody’s Investors Service, Inc.
“Moody’s Rating” means, with respect to any Borrower on any date of determination, the debt rating most recently announced by Moody’s with respect to the long-term senior unsecured debt issued by such Borrower.
“Multiemployer Plan” has the meaning specified in Section 4.01(i).
“Net Proceeds” means, with respect to any Specified Debt Issuance, the cash proceeds received therefrom, net of attorneys’ fees, underwriting discounts, commissions, and other customary fees and expenses actually incurred and paid in connection therewith.
“Non-Consenting Lender” means any Lender that does not approve any consent, waiver or amendment that (i) requires the approval of all Lenders in accordance with the terms of Section 9.01 and (ii) has been approved by the Required Lenders.
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“Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such time.
“Notice of Borrowing” has the meaning specified in Section 2.02(a).
“OPCo” has the meaning specified in the recital of parties to this Agreement.
“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Advance, Commitment or Loan Document).
“Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.16(b)).
“Parent Guaranty” shall have the meaning specified in Section 6.01.
“Participant” has the meaning specified in Section 9.07(d).
“Participant Register” has the meaning specified in Section 9.07(d).
“Patriot Act” has the meaning specified in Section 9.14.
“Permitted Liens” means, as to any Loan Party, such of the following as to which no enforcement, collection, execution, levy or foreclosure proceeding shall have been commenced: (i) Liens for taxes, assessments and governmental charges or levies to the extent not required to be paid under Section 5.01(g) hereof; (ii) Liens imposed by law, such as materialmen’s, mechanics’, carriers’, workmen’s and repairmen’s Liens, and other similar Liens arising in the ordinary course of business securing obligations that are not overdue for a period of more than 30 days or that are being contested in good faith by appropriate proceedings; (iii) Liens incurred or deposits made to secure obligations under workers’ compensation laws or similar legislation or to secure public or statutory obligations; (iv) easements, rights of way and other encumbrances on title to real property that do not render title to the property encumbered thereby unmarketable or materially adversely affect the use of such property for its present purposes; (v) any judgment Lien, unless an Event of Default under Section 7.01(g) shall have occurred and be continuing; (vi) any Lien on any asset of any Person existing at the time such Person is merged or consolidated with or into such Loan Party or any Significant Subsidiary thereof and not created in contemplation of such event; (vii) deposits made in the ordinary course of business to secure the performance of bids, trade contracts (other than for Debt), operating leases and surety bonds; (viii) Liens upon or in any real property or equipment
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“Person” means an individual, partnership, corporation (including a business trust), joint stock company, trust, unincorporated association, joint venture, limited liability company or other entity, or a government or any political subdivision or agency thereof.
“Plan” has the meaning specified in Section 4.01(i).
“Platform” has the meaning specified in Section 9.02(b).
“RBSFI” means The Royal Bank of Scotland Finance (Ireland).
“RBSSI” means RBS Securities Inc.
“Recipient” means (a) the Administrative Agent and (b) any Lender, as applicable.
“Reference Banks” means Wells Fargo and any other Lender as may be selected from time to time to act as a Reference Bank hereunder by the Administrative Agent and the Borrowers.
“Register” has the meaning specified in Section 9.07(c).
“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and of such Person’s Affiliates.
“Required Lenders” means at any time Lenders owed in excess of 50% of the then aggregate unpaid principal amount of the Advances owing to Lenders at such time, or, if no such principal amount is then outstanding, Lenders having in excess of 50% in interest of the Commitments in effect at such time. Subject to Section 9.01, the outstanding Advances and Commitments of any Defaulting Lender shall be disregarded in determining Required Lenders at any time.
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“Restructuring Law” means Texas Senate Bill 7, as enacted by the Legislature of the State of Texas and signed into law on June 18, 1999, Ohio Senate Bill No. 3, as enacted by the General Assembly of the State of Ohio and signed into law on July 6, 1999, or any similar law applicable to a Loan Party or any Subsidiary of a Loan Party governing the deregulation or restructuring of the electric power industry.
“RTO Transaction” means the transfer of transmission facilities to a regional transmission organization or equivalent organization as approved or ordered by the Federal Energy Regulatory Commission.
“S&P” means Standard & Poor’s Ratings Group, a division of The McGraw-Hill Companies, Inc.
“S&P Rating” means, with respect to any Borrower on any date of determination, the rating most recently announced by S&P with respect to the long-term senior unsecured debt issued by such Borrower.
“SEC” means the United States Securities and Exchange Commission.
“Significant Subsidiary” means, at any time, (i) with respect to AEP, any Subsidiary of AEP that constitutes at such time a “significant subsidiary” of AEP, as such term is defined in Regulation S-X of the SEC as in effect on the date hereof (17 C.F.R. Part 210) (other than AGR and any other Subsidiary of AEP (other than the Existing Utility Subsidiaries (as defined below)) to which generation assets are being transferred in connection with the corporate separation of OPCo’s generation assets); provided, however, that if AGR and the other Subsidiaries of AEP (excluding, solely for purposes of this calculation, the Existing Utility Subsidiaries) own, on an aggregate basis, generation assets exceeding 20% of AEP’s “total assets” as used in Regulation S-X, AGR and each such Subsidiary that otherwise constitutes a “significant subsidiary” of AEP under Regulation S-X will be considered Significant Subsidiaries, and (ii) with respect to any Borrower, any Subsidiary of such Borrower that constitutes at such time a “significant subsidiary” of such Borrower, as such term is defined in Regulation S-X of the SEC as in effect on the date hereof (17 C.F.R. Part 210); provided, however, in each case of clauses (i) and (ii) above, that “total assets” as used in Regulation S-X shall not include securitization transition assets, phase-in cost assets or similar assets on the balance sheet of any Subsidiary resulting from the issuance of transition bonds or other asset backed securities of a similar nature. As used in this definition, “Existing Utility Subsidiaries” means each of AEP Generating Company, APCo, Indiana Michigan Power Company, KPCo, Kingsport Power Company, OPCo, Public Service Company of Oklahoma, Southwestern Electric Power Company, Wheeling Power Company, AEP Texas North Company and AEP Texas Central Company.
“Specified Debt Issuance” means any issuance or sale of any debt securities or issuance, sale or incurrence of any other Debt, whether in capital markets transactions, bank or other commercial lending transactions, or similar transactions with any banks or other financial institutions or institutional lenders, in each case issued, sold or incurred by any Loan Party, and the proceeds of which are to be used to finance any portion of the
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“Stranded Cost Recovery Bonds” means securities, however denominated, that are issued by a Loan Party or any Consolidated Subsidiary thereof that are (i) non-recourse to such Loan Party and its Significant Subsidiaries (other than for failure to collect and pay over the charges referred to in clause (ii) below) and (ii) payable solely from transition or similar charges authorized by law (including, without limitation, any “financing order”, as such term is defined in the Texas Utilities Code, the Ohio Revised Code or the West Virginia Code) to be invoiced to customers of such Loan Party or any Subsidiary of such Loan Party or to retail electric providers.
“Subsidiary” of any Person means any corporation, partnership, joint venture, limited liability company, trust or estate of which (or in which) more than 50% of (i) the issued and outstanding capital stock having ordinary voting power to elect a majority of the board of directors of such corporation (irrespective of whether at the time capital stock of any other class or classes of such corporation shall or might have voting power upon the occurrence of any contingency), (ii) the interest in the capital or profits of such limited liability company, partnership or joint venture or (iii) the beneficial interest in such trust or estate is at the time directly or indirectly owned or controlled by such Person, by such Person and one or more of its other Subsidiaries or by one or more of such Person’s other Subsidiaries.
“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Termination Date” means the earlier to occur of (i) May 13, 2015, and (ii) the date of termination of the Commitments and/or declaration of all outstanding Advances to be due and payable (or automatically becoming due and payable) pursuant to Section 7.01.
“Type” refers to the distinction between Advances bearing interest at the Base Rate and Advances bearing interest at the Eurodollar Rate.
“U.S. Person” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Internal Revenue Code.
“U.S. Tax Compliance Certificate” has the meaning assigned to such term in Section 2.14(g)(ii)(B)(iii).
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“Voting Stock” means capital stock issued by a corporation, or equivalent interests in any other Person, the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or Persons performing similar functions) of such Person, even if the right so to vote has been suspended by the happening of such a contingency.
“Wells Fargo” has the meaning specified in the recital of parties to this Agreement.
“Wells Securities” means Wells Fargo Securities, LLC.
“Withholding Agent” means any Loan Party and the Administrative Agent.
SECTION 1.02. Computation of Time Periods.
In this Agreement in the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including” and the words “to” and “until” each mean “to but excluding”.
SECTION 1.03. Accounting Terms.
All accounting terms not specifically defined herein shall be construed in accordance with generally accepted accounting principles consistent with those applied in the preparation of the financial statements referred to in Section 4.01(f) (“GAAP”).
SECTION 1.04. Other Interpretive Provisions.
As used herein, except as otherwise specified herein, (i) references to any Person include its successors and assigns and, in the case of any Governmental Authority, any Person succeeding to its functions and capacities; (ii) references to any Applicable Law include amendments, supplements and successors thereto; (iii) references to specific sections, articles, annexes, schedules and exhibits are to this Agreement; (iv) words importing any gender include the other gender; (v) the singular includes the plural and the plural includes the singular; (vi) the words “including”, “include” and “includes” shall be deemed to be followed by the words “without limitation”; (vii) captions and headings are for ease of reference only and shall not affect the construction hereof; and (viii) references to any time of day shall be to New York City time unless otherwise specified.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Advances.
(a) Each Lender severally agrees, on the terms and conditions hereinafter set forth, to make Advances to OPCo from time to time on any Business Day during the period from the date hereof until the Availability Termination Date in an aggregate outstanding amount not to exceed at any time such Lender’s Available Commitment at such time. Within the limits of each Lender’s Commitment and as hereinabove and hereinafter provided, OPCo may request
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(b) In no event shall OPCo be entitled to request or receive any Borrowing that would cause the aggregate principal amount of all Borrowings (including such requested Borrowing) to exceed the Commitments.
(c) All Advances made by the Lenders under the Facility shall be made to OPCo, and the other Borrowers shall assume such Advances as set forth in Section 2.17.
SECTION 2.02. Making the Advances.
(a) Each Borrowing shall be in an amount not less than $10,000,000 (or, if less, the Available Commitments at such time) or an integral multiple of $1,000,000 in excess thereof and shall consist of Advances of the same Type made on the same day by the Lenders ratably according to their respective Commitment Percentages. Each Borrowing shall be made on notice, given not later than 11:00 A.M. on the third Business Day prior to the date of the proposed Borrowing in the case of a Borrowing consisting of Eurodollar Rate Advances, or not later than 9:30 A.M. on the date of the proposed Borrowing in the case of a Borrowing consisting of Base Rate Advances, by OPCo to the Administrative Agent, which shall give to each Lender prompt written notice. Each such notice of a Borrowing under this Section 2.02 (a “Notice of Borrowing”) shall be by telephone, confirmed immediately in writing, or fax in substantially the form of Exhibit A hereto, specifying therein the requested (i) Borrowing Date for such Borrowing, (ii) Type of Advances comprising such Borrowing, (iii) aggregate amount of such Borrowing, and (iv) in the case of a Borrowing consisting of Eurodollar Rate Advances, the initial Interest Period for each such Advance. Each Lender shall, before 12:00 noon on the applicable Borrowing Date, make available for the account of its Applicable Lending Office to the Administrative Agent at the Agent’s Account, in same day funds, such Lender’s ratable portion of the Borrowing to be made on such Borrowing Date. After the Administrative Agent’s receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Administrative Agent will promptly make such funds available to OPCo in such manner as the OPCo shall have specified in the applicable Notice of Borrowing and as shall be reasonably acceptable to the Administrative Agent.
(b) Anything in subsection (a) above to the contrary notwithstanding, OPCo may not select Eurodollar Rate Advances for any Borrowing if the aggregate amount of such Borrowing is less than $10,000,000 or if the obligation of the Lenders to make Eurodollar Rate Advances shall then be suspended pursuant to Section 2.08(c), 2.08(f) or 2.12.
(c) Each Notice of Borrowing shall be irrevocable and binding on OPCo. In the case of any Borrowing that the related Notice of Borrowing specifies is to comprise of Eurodollar Rate Advances, OPCo shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of any failure to fulfill on or before the date specified in such Notice of Borrowing for such Borrowing the applicable conditions set forth in Article III, including, without limitation, any loss (including loss of anticipated profits), cost or expense incurred by
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reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the Advance to be made by such Lender as part of such Borrowing when such Advance, as a result of such failure, is not made on such date.
(d) Unless the Administrative Agent shall have received notice by courier or fax from a Lender prior to any Borrowing Date or, in the case of a Base Rate Advance, prior to the time of Borrowing, that such Lender will not make available to the Administrative Agent such Lender’s Advance as part of the Borrowing to be made on such Borrowing Date, the Administrative Agent may assume that such Lender has made such portion available to the Administrative Agent on such Borrowing Date in accordance with subsection (a) of this Section 2.02, and the Administrative Agent may (but it shall not be required to), in reliance upon such assumption, make available to OPCo on such date a corresponding amount. If and to the extent that such Lender shall not have so made such Advance available to the Administrative Agent, such Lender and OPCo 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 OPCo until the date such amount is repaid to the Administrative Agent, at (i) in the case of OPCo, the interest rate applicable at the time to Advances comprising such Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall repay to the Administrative Agent such corresponding amount, such amount so repaid shall constitute such Lender’s Advance as part of such Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the Advance to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Advance on the date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on the date of any Borrowing.
SECTION 2.03. Fees.
(a) OPCo agrees to pay to the Administrative Agent for the account of each Lender a commitment fee equal to the Commitment Fee Rate in effect from time to time, multiplied by the amount of such Lender’s Available Commitment (i) from the date hereof, in the case of each Initial Lender, and (ii) from the effective date specified in the Assignment and Assumption pursuant to which it became a Lender, in the case of each other Lender, in each case until the earlier to occur of the Termination Date and the Availability Termination Date, payable quarterly in arrears on the last day of each March, June, September and December, commencing September 30, 2013, and on the earlier to occur of the Termination Date and the Availability Termination Date.
(b) The Borrowers shall pay to the Administrative Agent such fees as may from time to time be agreed between the Borrowers and the Administrative Agent. After the Closing Date, such fees will be payable by OPCo and, after the AGR Assumption, APCo Assumption or KPCo Assumption, as the case may be, OPCo and the other Borrowers on a pro rata basis, determined on the basis of such Borrower’s Fraction.
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SECTION 2.04. Termination or Reduction of the Commitments.
(a) OPCo shall have the right, upon at least three Business Days’ notice to the Administrative Agent, to terminate in whole or reduce ratably in part the Available Commitments, provided that each partial reduction shall be in a minimum amount of $5,000,000 or an integral multiple of $1,000,000 in excess thereof.
(b) OPCo may terminate the Available Commitment of any Lender that is a Defaulting Lender in accordance with Section 9.16(a)(iv).
(c) The Commitments shall automatically reduce by an amount equal to (i) the principal amount of all Advances made pursuant to Section 2.02, and (ii) without duplication, the Net Proceeds received in respect of all Specified Debt Issuances to the extent such Net Proceeds were not required to effect a mandatory prepayment of outstanding Advances pursuant to Section 2.10(b).
(d) Once terminated or reduced pursuant to this Section 2.04, none of the Commitments or any portions thereof may be reinstated.
(e) The Commitments shall automatically terminate on the Availability Termination Date or, if earlier, the Termination Date.
SECTION 2.05. Repayment of Advances.
(a) Each Borrower shall repay to the Administrative Agent for the account of each Lender on the Termination Date the aggregate principal amount of all Advances owing by such Borrower to such Lender then outstanding.
(b) If at any time the aggregate principal amount of all Advances owed at such time exceeds the aggregate Commitments then in effect, the Borrowers shall pay or prepay so much of the Borrowings as shall be necessary in order that the principal amount of all such Advances will not exceed such Commitments.
SECTION 2.06. Evidence of Indebtedness.
(a) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of each Borrower to such Lender resulting from each Advance made by such Lender from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time under this Agreement.
(b) The Administrative Agent shall maintain accounts in which it will record (i) the amount of each Advance made hereunder, the Borrower thereof, the Type of each Advance made and the Interest Period applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from such Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder from each Borrower and each Lender’s share thereof.
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(c) The entries made in the accounts maintained pursuant to subsections (a) and (b) of this Section 2.06 shall, to the extent permitted by Applicable Law, be prima facie evidence of the existence and amounts of the obligations therein recorded; provided, however, that the failure of any Lender or the Administrative Agent to maintain such accounts or any error therein shall not in any manner affect the obligations of each Borrower to repay the Advances and interest thereon in accordance with their terms.
(d) Any Lender may request that any Advances made by it be evidenced by one or more promissory notes. In such event, each applicable Borrower shall prepare, execute and deliver to such Lender one or more promissory notes payable to such Lender (or, if requested by such Lender, to such Lender and its assignees) and in a form approved by the Administrative Agent. Thereafter, the Advances evidenced by such promissory notes and interest thereon shall at all times (including after assignment pursuant to Section 9.07) be represented by one or more promissory notes in such form payable to the payee named therein.
SECTION 2.07. Interest on Advances.
Each Borrower shall pay interest on the unpaid principal amount of each Advance owing by such Borrower to each Lender from the date of such Advance until such principal amount shall be paid in full, at the following rates per annum:
(a) Base Rate Advances. During such periods as such Advance is a Base Rate Advance, a rate per annum equal at all times to the sum of (x) the Base Rate plus (y) the Applicable Margin for Base Rate Advances in effect from time to time, payable in arrears quarterly on the last day of each March, June, September and December during such periods and on the date such Base Rate Advance shall be Converted or paid in full.
(b) Eurodollar Rate Advances. During such periods as such Advance is a Eurodollar Rate Advance, a rate per annum equal at all times during each Interest Period for such Advance to the sum of (x) the Eurodollar Rate for such Interest Period for such Advance plus (y) the Applicable Margin for Eurodollar Rate Advances in effect from time to time, payable in arrears on the last day of such Interest Period and, if such Interest Period has a duration of more than three months, on each day that occurs during such Interest Period every three months from the first day of such Interest Period and on the date such Eurodollar Rate Advance shall be Converted or paid in full.
(c) Additional Interest on Eurodollar Rate Advances. Each Borrower shall pay to each Lender, so long as such Lender shall be required under regulations of the Board of Governors of the Federal Reserve System to maintain reserves with respect to liabilities or assets consisting of or including Eurocurrency Liabilities, additional interest on the unpaid principal amount of each Eurodollar Rate Advance owing by such Borrower to such Lender, from the date of such Advance until such principal amount is paid in full, at an interest rate per annum equal at all times to the remainder obtained by subtracting (i) the Eurodollar Rate for the Interest Period for such Advance from (ii) the rate obtained by dividing such Eurodollar Rate by a percentage equal to 100% minus the Eurodollar Rate Reserve Percentage of such Lender for such Interest Period, payable on each date on which interest is payable on such Advance. Such additional interest shall be
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determined by such Lender and notified to the applicable Borrower through the Administrative Agent.
SECTION 2.08. Interest Rate Determination.
(a) To the extent required hereunder, each Reference Bank agrees to furnish to the Administrative Agent timely information for the purpose of determining each Eurodollar Rate. If fewer than two Reference Banks furnish such timely information to the Administrative Agent for the purpose of determining any such rate, the Administrative Agent shall determine such interest rate on the basis of timely information furnished by the remaining Reference Bank.
(b) The Administrative Agent shall give prompt notice to the applicable Borrower and the Lenders of the applicable interest rate determined by the Administrative Agent for purposes of Section 2.07(a) or (b), and the applicable rate, if any, furnished by each Reference Bank for the purpose of determining the applicable interest rate under Section 2.07(b).
(c) If, with respect to any Eurodollar Rate Advances, (i) the Required Lenders notify the Administrative Agent that the Eurodollar Rate for any Interest Period for such Advances will not adequately reflect the cost to such Required Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such Interest Period, or (ii) the Reference Banks notify the Administrative Agent that adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of Eurodollar Rate, the Administrative Agent shall forthwith so notify the Borrowers and the Lenders, whereupon (A) each Eurodollar Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert into a Base Rate Advance, and (B) the obligation of the Lenders to make, or to Convert Advances into, Eurodollar Rate Advances shall be suspended until the Administrative Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist.
(d) If the applicable Borrower shall fail to select the duration of any Interest Period for any Eurodollar Rate Advances in accordance with the provisions contained in the definition of “Interest Period” in Section 1.01, the Administrative Agent will forthwith so notify such Borrower and the Lenders and such Advances will automatically, on the last day of the then existing Interest Period therefor, Convert into Base Rate Advances.
(e) On the date on which the aggregate unpaid principal amount of Eurodollar Rate Advances comprising any Borrowing shall be reduced, by payment or prepayment or otherwise, to less than $10,000,000, such Advances shall automatically Convert into Base Rate Advances.
(f) Upon the occurrence and during the continuance of any Event of Default, (i) each Eurodollar Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert into a Base Rate Advance and (ii) the obligation of the Lenders to make, or to Convert Advances into, Eurodollar Rate Advances shall be suspended.
SECTION 2.09. Optional Conversion of Advances.
Any Borrower may on any Business Day, upon notice given to the Administrative Agent not later than 12:00 noon on the third Business Day prior to the date of the proposed Conversion
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SECTION 2.10. Prepayments of Advances.
(a) Optional Prepayments of Advances. Any Borrower may, upon at least two Business Days’ notice, in the case of Eurodollar Rate Advances, and upon notice not later than 11:00 A.M. (New York time) on the date of prepayment, in the case of Base Rate Advances, to the Administrative Agent stating the proposed date and aggregate principal amount of the prepayment, and, if such notice is given, such Borrower shall prepay the outstanding principal amount of the Advances owing by such Borrower comprising part of the same Borrowing in whole or ratably in part, together with accrued interest to the date of such prepayment on the principal amount prepaid; provided, however, that (x) each partial prepayment shall be in a minimum amount of $5,000,000 or an integral multiple of $1,000,000 in excess thereof and (y) in the event of any such prepayment of a Eurodollar Rate Advance, such Borrower shall be obligated to reimburse the Lenders in respect thereof pursuant to Section 9.04(c).
(b) Mandatory Prepayments of Advances. (i) If AEP shall cease to own, directly or indirectly, 100% of the Voting Stock of AGR, AGR shall prepay all Advances, unpaid interest and other amounts owing by AGR under this Agreement and (ii) with respect to each Specified Debt Issuance, promptly after the later of (A) the date of receipt of the Net Proceeds from such Specified Debt Issuance and (B) the date any power generation assets owned as of the Closing Date by OPCo are transferred to another Borrower in connection with such Specified Debt Issuance, and in any event within 30 days following such later date (or, if such asset transfer will be accompanied by the AGR Assumption, the APCo Assumption or the KPCo Assumption, in any event prior to the applicable assumption of Advances to occur on such date), each applicable Loan Party shall prepay Advances owing by such Loan Party (or, in the case of AEP, Advances owing by AGR) in an amount equal to the Net Proceeds of such Specified Debt Issuance. All such prepayments shall be applied ratably to the outstanding Advances of such Loan Party (or, in the case of AEP, Advances owing by AGR), first, to all outstanding Base Rate Advances, and second, to all outstanding Eurodollar Rate Advances in the direct order of Interest Period maturity dates applicable to such Eurodollar Rate Advances, in each case together with accrued interest to the date of such prepayment on the principal amount prepaid and, in the case of any Eurodollar Rate Advances, any amounts due in respect thereof pursuant to Section 9.04(c).
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SECTION 2.11. Increased Costs.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any reserve requirement reflected in the Eurodollar Rate Reserve Percentage, in the case of Eurodollar Rate Advances);
(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii) impose on any Lender or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Advances made by such Lender;
and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient of making, converting to, continuing or maintaining any Advance or of maintaining its obligation to make any such Advance, or to reduce the amount of any sum received or receivable by such Lender or other Recipient hereunder (whether of principal, interest or any other amount) then, upon request of such Lender or other Recipient, each Borrower will pay to such Lender or other Recipient, as the case may be, such additional amount or amounts as will compensate such Lender or other Recipient, as the case may be, for such additional costs incurred or reduction suffered.
(b) Capital Requirements. If any Lender determines that any Change in Law affecting such Lender or any Applicable Lending Office of such Lender or such Lender’s holding company, if any, regarding capital or liquidity requirements, has or would have the effect of reducing the rate of return on such Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Advances made by such Lender, to a level below that which such Lender or such Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s policies and the policies of such Lender’s holding company with respect to capital adequacy and liquidity), then from time to time each Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender or such Lender’s holding company for any such reduction suffered.
(c) Certificates for Reimbursement. A certificate of a Lender setting forth the amount or amounts necessary to compensate such Lender or its holding company, as the case may be, as specified in subsection (a) or (b) of this Section and delivered to each Borrower, shall be conclusive absent manifest error. Each Borrower shall pay such Lender the amount shown as due on any such certificate within ten days after receipt thereof.
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(d) Delay in Requests. Failure or delay on the part of any Lender to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s right to demand such compensation; provided that the Borrowers shall not be required to compensate a Lender pursuant to this Section for any increased costs incurred or reductions suffered more than six months prior to the date that such Lender notifies the Borrowers of the Change in Law giving rise to such increased costs or reductions, and of such Lender’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the six-month period referred to above shall be extended to include the period of retroactive effect thereof).
(e) Pro Rata Sharing of Payments. Each Borrower shall be liable for its pro rata share of each payment to be made by the Borrowers under subsections (a) and (b) of this Section 2.11, determined on the basis of such Borrower’s Fraction; provided, however, that if and to the extent that any such liabilities are reasonably determined by the Borrowers (subject to the approval of the Administrative Agent, which approval shall not be unreasonably withheld) to be directly attributable to Advances owing by a specific Borrower, then only such Borrower shall be liable for such payments.
SECTION 2.12. Illegality.
If due to any Change in Law it shall become unlawful or impossible for any Credit Party (or its Eurodollar Lending Office) to make, maintain or fund its Eurodollar Rate Advances, and such Credit Party shall so notify the Administrative Agent, the Administrative Agent shall forthwith give notice thereof to the other Credit Parties and the Borrowers, whereupon, until such Credit Party notifies the Borrowers and the Administrative Agent that the circumstances giving rise to such suspension no longer exist, the obligation of such Credit Party to make Eurodollar Rate Advances, or to Convert outstanding Advances into Eurodollar Rate Advances, shall be suspended. Before giving any notice to the Administrative Agent pursuant to this Section 2.12, such Credit Party shall use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions applicable to such Credit Party) to designate a different Eurodollar Lending Office if such designation would avoid the need for giving such notice and would not, in the judgment of such Credit Party, be otherwise disadvantageous to such Credit Party. If such notice is given, each Eurodollar Rate Advance of such Credit Party then outstanding shall be converted to a Base Rate Advance either (i) on the last day of the then current Interest Period applicable to such Eurodollar Rate Advance if such Credit Party may lawfully continue to maintain and fund such Advance to such day or (ii) immediately if such Credit Party shall determine that it may not lawfully continue to maintain and fund such Advance to such day.
SECTION 2.13. Payments and Computations.
(a) Each Borrower shall make each payment to be made by it hereunder not later than 1:00 P.M. on the day when due in Dollars to the Administrative Agent at the Agent’s Account in same day funds without condition or deduction for any counterclaim, defense, recoupment or setoff. The Administrative Agent will promptly thereafter cause to be distributed like funds relating to the payment of principal or interest or commitment fees ratably (other than amounts payable pursuant to Section 2.07(c), 2.11, 2.14 or 9.04(c)) to the Lenders for the account of their respective Applicable Lending Offices, and like funds relating to the payment of any other
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(b) Each Borrower hereby authorizes each Lender, if and to the extent payment owed to such Lender is not made when due hereunder, after any applicable grace period, to charge from time to time against any or all of such Borrower’s accounts with such Lender any amount so due.
(c) All computations of interest based on the rate referred to in clause (i) of the definition of the “Base Rate” contained in Section 1.01 shall be made by the Administrative Agent on the basis of a year of 365 or 366 days, as the case may be, and all computations of interest based on the Eurodollar Rate or the Federal Funds Rate and of commitment fees shall be made by the Administrative Agent on the basis of a year of 360 days, in each case for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest or commitment fees are payable. Each determination by the Administrative Agent of an interest rate hereunder shall be conclusive and binding for all purposes, absent manifest error.
(d) Whenever any payment hereunder shall be stated to be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of payment of interest or commitment fees, as the case may be; provided, however, that, if such extension would cause payment of interest on or principal of Eurodollar Rate Advances to be made in the next following calendar month or on a date after the Termination Date, such payment shall be made on the next preceding Business Day.
(e) Unless the Administrative Agent shall have received notice from any Borrower prior to the date on which any payment is due to a Lender hereunder that such Borrower will not make such payment in full, the Administrative Agent may assume that each 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 a Borrower shall not have so made such payment in full to the Administrative Agent, 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 2.14. Taxes.
(a) Defined Terms. For purposes of this Section 2.14, the term “Applicable Law” includes FATCA.
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(b) Payments Free of Taxes. Any and all payments by or on account of any obligation of any Loan Party under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by Applicable Law. If any Applicable Law (as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with Applicable Law and, if such Tax is an Indemnified Tax, then the sum payable by each applicable Loan Party shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.
(c) Payment of Other Taxes by the Loan Parties. Each Loan Party shall timely pay to the relevant Governmental Authority in accordance with Applicable Law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.
(d) Indemnification by the Loan Parties. Each Loan Party shall indemnify each Recipient, within 10 days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Loan Party by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.
(e) Indemnification by the Lenders. Each Lender shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that a Loan Party has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Loan Parties to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 9.07(d) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this subsection (e).
(f) Evidence of Payments. As soon as practicable after any payment of Taxes by any Loan Party to a Governmental Authority pursuant to this Section 2.14, such Loan Party shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such
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Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.
(g) Status of Lenders. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Loan Parties and the Administrative Agent, at the time or times reasonably requested by the Loan Parties or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Loan Parties or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Loan Parties or the Administrative Agent, shall deliver such other documentation prescribed by Applicable Law or reasonably requested by the Loan Parties or the Administrative Agent as will enable the Loan Parties or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 2.14(g)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing,
(A) any Lender that is a U.S. Person shall deliver to the Loan Parties and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Loan Parties or the Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Loan Parties and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Loan Parties or the Administrative Agent), whichever of the following is applicable:
(i) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(ii) executed originals of IRS Form W-8ECI;
(iii) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Internal Revenue
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(iv) to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN, a U.S. Tax Compliance Certificate substantially in the form of Exhibit E-2 or Exhibit E-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that, if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit E-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Loan Parties and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Loan Parties or the Administrative Agent), executed originals of any other form prescribed by Applicable Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by Applicable Law to permit the Loan Party or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Internal Revenue Code, as applicable), such Lender shall deliver to the Loan Parties and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Loan Parties 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 Loan Parties or the Administrative Agent as may be necessary for the Loan Parties and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or
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promptly notify the Loan Parties and the Administrative Agent in writing of its legal inability to do so.
(h) Treatment of Certain Refunds. If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 2.14 (including by the payment of additional amounts pursuant to this Section 2.14), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this subsection (h) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this subsection (h), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this subsection (h) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This subsection shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.
(i) Survival. Each party’s obligations under this Section 2.14 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.
SECTION 2.15. Sharing of Payments, Etc.
(a) If any Lender shall obtain any payment (whether voluntary, involuntary, through the exercise of any right of set-off, or otherwise) on account of the Advances owing to it (other than pursuant to Section 2.07(c), 2.11, 2.14 or 9.04(c) or in respect of Eurodollar Rate Advances converted into Base Rate Advances pursuant to Section 2.12) by the Borrowers in excess of its ratable share of payments on account of the Advances to the Borrowers obtained by all the Lenders, such Lender shall forthwith purchase from the other Lenders such participations in such Advances owing to them as shall be necessary to cause such purchasing Lender to share the excess payment ratably with each of them; provided, however, that if all or any portion of such excess payment is thereafter recovered from such purchasing Lender, such purchase from each Lender shall be rescinded and such Lender shall repay to the purchasing Lender the purchase price to the extent of such recovery together with an amount equal to such Lender’s ratable share (according to the proportion of (i) the amount of such Lender’s required repayment to (ii) the total amount so recovered from the purchasing Lender) of any interest or other amount paid or payable by the purchasing Lender in respect of the total amount so recovered. Each Borrower agrees that any Lender so purchasing a participation from another Lender pursuant to this Section 2.15 may, to the fullest extent permitted by law, exercise all its rights of payment
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(including the right of set-off) with respect to such participation as fully as if such Lender were the direct creditor of such Borrower in the amount of such participation.
(b) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.02(d) or 8.05, then the Administrative Agent may, in its discretion and notwithstanding any contrary provision hereof, (i) apply any amounts thereafter received by the Administrative Agent for the account of such Lender for the benefit of the Administrative Agent to satisfy such Lender’s obligations to it or them under such Section until all such unsatisfied obligations are fully paid, and/or (ii) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender under any such Section, in the case of each of clauses (i) and (ii) above, in any order as determined by the Administrative Agent in its discretion.
SECTION 2.16. Mitigation Obligations; Replacement of Lenders.
(a) Designation of a Different Lending Office. If any Lender requests compensation under Section 2.11, or requires any Borrower to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.14, then such Lender shall (at the request of the Borrowers) use reasonable efforts to designate a different Applicable Lending Office or to assign its rights and obligations hereunder to another of its offices, branches or Affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.11 or 2.14, as the case may be, in the future, and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. Each Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.
(b) Replacement of Lenders. If any Lender delivers a notice or certificate pursuant to Section 2.12, requests compensation under Section 2.11, or if any Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.14 and, in each case, such Lender has declined or is unable to designate a different Applicable Lending Office in accordance with Section 2.16(a), or if any Lender is a Defaulting Lender or a Non-Consenting Lender, then the Borrowers may, at their sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 9.07), all of its interests, rights (other than its existing rights to payments pursuant to Section 2.11 or 2.14) and obligations under this Agreement and the related Loan Documents to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if such Lender accepts such assignment); provided that:
(i) the Borrowers shall have paid to the Administrative Agent the assignment fee (if any) specified in Section 9.07(b)(iv);
(ii) such Lender shall have received payment of an amount equal to the outstanding principal of its Advances, accrued interest thereon, accrued commitment fees and all other amounts payable to it hereunder and under the other Loan Documents
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(including any amounts under Section 9.04(c)) from the assignee (to the extent of such outstanding principal and accrued interest and commitment fees) or the Borrowers (in the case of all other amounts);
(iii) in the case of any such assignment resulting from a claim for compensation under Section 2.11 or payments required to be made pursuant to Section 2.14, such assignment will result in a reduction in such compensation or payments thereafter;
(iv) no Default shall have occurred and be continuing;
(v) such assignment does not conflict with Applicable Law; and
(vi) in the case of any assignment resulting from a Lender becoming a Non-Consenting Lender, the applicable assignee shall have consented to the applicable amendment, waiver or consent.
A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrowers to require such assignment and delegation cease to apply.
SECTION 2.17. Assumption of Obligations.
(a) On the date of the AGR Transfer, AGR shall assume all outstanding Advances and all other obligations of OPCo under this Agreement and the other Loan Documents (the “AGR Assumption”), pursuant to a Borrower Assumption Agreement. Upon the effectiveness of the AGR Assumption, (i) OPCo shall no longer be a Borrower under this Agreement or any other Loan Document, nor have any rights or obligations of a Borrower hereunder or thereunder, and shall be released from any and all obligations under the Loan Documents, except for those obligations that expressly survive the repayment of all amounts under the Loan Documents or termination of the Commitments, and (ii) the Parent Guaranty will automatically become effective. Any promissory notes issued by OPCo under Section 2.06(d) of the Credit Agreement shall be returned to OPCo for cancellation upon such assumption.
(b) Following the AGR Assumption and substantially concurrently with the APCo Transfer, APCo may assume a portion of the outstanding Advances of AGR, in an aggregate principal amount not to exceed $500,000,000, and the related obligations of AGR under this Agreement and the other Loan Documents (the “APCo Assumption”), pursuant to a Borrower Assumption Agreement. Upon the effectiveness of the APCo Assumption, AGR will be released from liability for the Advances assumed by APCo, and AEP shall be released from its Guaranteed Obligations with respect to such assumed Advances.
(c) Following the AGR Assumption and substantially concurrently with the KPCo Transfer, KPCo may assume a portion of the outstanding Advances of AGR, in an aggregate principal amount not to exceed $250,000,000, and the related obligations of AGR under this Agreement and the other Loan Documents (the “KPCo Assumption”), pursuant to a Borrower Assumption Agreement. Upon the effectiveness of the KPCo Assumption, AGR will be released
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from liability for the Advances assumed by KPCo, and AEP shall be released from its Guaranteed Obligations with respect to such assumed Advances.
(d) Each of the AGR Assumption, the APCo Assumption and the KPCo Assumption shall be subject to the following conditions precedent: (i) the receipt by the Administrative Agent of the applicable Borrower Assumption Agreement, (ii) the receipt by the Administrative Agent of a certificate signed by a duly authorized officer of each Loan Party that is a party to such Borrower Assumption Agreement, stating that both before and after giving effect to such assumption (A) all representations and warranties of such Loan Party contained in Section 4.01 are true and correct in all material respects on and as of such date, as though made on and as of such date, and (B) no event has occurred and is continuing that constitutes a Default, (iii) the receipt by the Administrative Agent of a certificate of the Secretary or Assistant Secretary of each Loan Party that is a party to such Borrower Assumption Agreement, certifying (A) that attached are true and correct copies of (x) the resolutions of the board of directors of such Loan Party approving the applicable assumption, and of all documents evidencing other necessary corporate action, and (y) all Governmental Approvals required to be obtained by such Loan Party for such assumption and (B) the names and true signatures of the officers of such Loan Party authorized to sign the applicable Borrower Assumption Agreement and the other documents to be delivered in connection therewith, (iv) the receipt by the Administrative Agent of an opinion of counsel to the Loan Parties that are a party to such Borrower Assumption Agreement, as to such matters related to the foregoing as the Administrative Agent or the Lenders through the Administrative Agent may reasonably request and (v) the receipt by the Administrative Agent of evidence that the AGR Transfer (in the case of the AGR Assumption), the APCo Transfer (in the case of the APCo Assumption) or the KPCo Transfer (in the case of the KPCo Assumption) shall have been completed.
ARTICLE III
CONDITIONS PRECEDENT
SECTION 3.01. Conditions Precedent to Effectiveness of this Agreement and Initial Advance.
The effectiveness of this Agreement and the obligation of each Lender to make the initial Advance to be made by it hereunder shall be subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent shall have received on or before the date of such effectiveness the following, each dated such day, in form and substance reasonably satisfactory to the Administrative Agent in sufficient copies for each Lender:
(i) Certified copies of the resolutions of the board of directors of each Loan Party approving this Agreement, and of all documents evidencing other necessary corporate action and Governmental Approvals, if any, with respect to this Agreement.
(ii) A certificate of the Secretary or Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party
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authorized to sign this Agreement and the other documents to be delivered by such Loan Party hereunder.
(iii) A favorable opinion of counsel for the Loan Parties (which may be an attorney of American Electric Power Service Corporation), substantially in the form of Exhibit C hereto and as to such other matters as any Lender through the Administrative Agent may reasonably request.
(iv) A favorable opinion of King & Spalding LLP, counsel for the Administrative Agent, in the form of Exhibit D hereto.
(b) On such date, the following statements shall be true and the Administrative Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of each Loan Party, dated such date, stating that:
(i) The representations and warranties of such Loan Party contained in Section 4.01 are true and correct in all material respects on and as of such date, as though made on and as of such date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(c) The Borrowers shall have paid all fees and expenses of the Administrative Agent, the Joint Lead Arrangers and the Lenders then due and payable in accordance with the terms of the Loan Documents (including the fees and expenses of counsel to the Administrative Agent to the extent then due and payable).
(d) The Administrative Agent shall have received counterparts of this Agreement, executed and delivered by the Loan Parties and the Lenders.
(e) The Administrative Agent shall have received all promissory notes (if any) requested by the Lenders pursuant to Section 2.06(d), duly completed and executed by the Borrowers and payable to such Lenders.
(f) The Administrative Agent shall have received copies of the Disclosure Documents.
(g) All amounts outstanding under the Existing Credit Agreement, whether for principal, interest, fees or otherwise, shall have been paid in full, all commitments to lend thereunder shall have been terminated, and the Existing Credit Agreement shall have been terminated.
(h) The Administrative Agent shall have received all documentation and information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the Patriot Act, to the extent such documentation or information is requested by the Administrative Agent on behalf of the Lenders prior to the date hereof.
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(i) The Administrative Agent shall have received copies or other evidence of such other approvals and such other opinions or documents as the Administrative Agent or any Lender through the Administrative Agent may reasonably request.
SECTION 3.02. Conditions Precedent to each Advance.
The obligation of each Lender to make an Advance to OPCo on the occasion of each Borrowing (including the initial Borrowing) shall be subject to the satisfaction of the conditions precedent set forth in Section 3.01 and on the date of such Borrowing:
(a) The following statements shall be true (and each of the giving of the applicable Notice of Borrowing and the acceptance by OPCo of the proceeds of such Borrowing shall constitute a representation and warranty by OPCo that on the date of such Borrowing such statements are true):
(i) The representations and warranties of OPCo contained in Section 4.01 (other than the representation and warranty in Section 4.01(e) and the representation and warranty set forth in the last sentence of Section 4.01(f)) are true and correct in all material respects on and as of the date of such Borrowing, before and after giving effect to such Borrowing and to the application of the proceeds therefrom, as though made on and as of such date, and
(ii) No event has occurred and is continuing or would result from such Borrowing or from the application of the proceeds therefrom, that constitutes a Default.
(b) The Administrative Agent shall have received copies or other evidence of such other approvals and such other opinions or documents as the Administrative Agent or any Lender through the Administrative Agent may reasonably request.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Loan Parties.
Each Loan Party represents and warrants as follows:
(a) Such Loan Party is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated, and each Significant Subsidiary of such Loan Party is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized.
(b) The execution, delivery and performance by such Loan Party of each Loan Document to which it is, or is to become a party, and the consummation of the transactions contemplated hereby, are within such Loan Party’s corporate powers, have been duly authorized by all necessary action, and do not contravene (i) such Loan Party’s certificate of incorporation or by-laws, (ii) law binding or affecting such Loan Party or (iii) any contractual restriction binding on or affecting such Loan Party or any of its properties.
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(c) Each Loan Document to which it is, or is to become, a party has been duly executed and delivered by such Loan Party. This Agreement is, and, upon execution and delivery thereof, each other Loan Document will be the legal, valid and binding obligation of such Loan Party enforceable against such Loan Party in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is sought in a proceeding in equity or at law) and subject to requirements of reasonableness, good faith and fair dealing.
(d) No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority or any other third party is required for the due execution, delivery and performance by such Loan Party of any Loan Document to which it is, or is to become, party other than with respect to each Borrower (i) such Approvals, if any, that have been duly issued and are in full force and effect and (ii) such Approvals that may be required to be obtained by such Borrower in connection with the AGR Assumption, APCo Assumption or KPCo Assumption, each of which will have been obtained and will be in full force on or prior to the date of the AGR Assumption, APCo Assumption or KPCo Assumption, as applicable.
(e) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting such Loan Party or any of its Significant Subsidiaries before any Governmental Authority or arbitrator that is reasonably likely to have a Material Adverse Effect, except as disclosed in the Disclosure Documents.
(f) The consolidated balance sheets of such Loan Party (other than AGR) and its Consolidated Subsidiaries as at December 31, 2012 and March 31, 2013, and the related consolidated statements of income and cash flows of such Loan Party (other than AGR) and its Consolidated Subsidiaries for the fiscal periods then ended, accompanied by (in the case of such financial statements for the fiscal year ended December 31, 2012) an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lender, fairly present (subject, in the case of such financial statements for the fiscal quarter ended March 31, 2013, to year-end adjustments) the consolidated financial condition of such Loan Party (other than AGR) and its Consolidated Subsidiaries as at such dates and the consolidated results of the operations of such Loan Party (other than AGR) and its Consolidated Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2012, there has been no Material Adverse Change as to any Loan Party.
(g) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf of such Loan Party to the Administrative Agent or any Lender in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were, are, or will be made, not misleading.
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(h) Except as disclosed in the Disclosure Documents, such Loan Party and each Significant Subsidiary of such Loan Party is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any Governmental Authority applicable to it.
(i) No failure to satisfy the minimum funding standard applicable to a Plan for a plan year (as described in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse Effect, whether or not waived, has occurred with respect to any Plan. Such Loan Party has not incurred, and does not presently expect to incur, any withdrawal liability under Title IV of ERISA with respect to any Multiemployer Plan that could reasonably be expected to have a Material Adverse Effect. Such Loan Party and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such Loan Party and each of its Subsidiaries have complied in all material respects with foreign law applicable to its Foreign Plans, if any. As used herein, the term “Plan” means an “employee pension benefit plan” (as defined in Section 3 of ERISA) which is and has been established or maintained, or to which contributions are or have been made or should be made according to the terms of the plan, by such Loan Party or any of its ERISA Affiliates. The term “Multiemployer Plan” means any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” means any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any Subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehicle.
(j) Such Loan Party and its Subsidiaries have filed or caused to be filed all material Federal, state and local tax returns that are required to be filed by them, and have paid or caused to be paid all material taxes shown to be due and payable on such returns or on any assessments received by them (to the extent that such taxes and assessments have become due and payable) other than those taxes contested in good faith and for which adequate reserves have been established in accordance with GAAP.
(k) Such Loan Party is not engaged in the business of extending credit for the purpose of buying or carrying Margin Stock, and no proceeds of any Advance will be used to buy or carry any Margin Stock or to extend credit to others for the purpose of buying or carrying any Margin Stock. Not more than 25% of the assets of such Loan Party and its Significant Subsidiaries that are subject to the restrictions of Section 5.02(a), (c) or (d) constitute Margin Stock.
(l) Neither such Loan Party nor any of its Significant Subsidiaries is an “investment company,” or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company”, as such terms are defined in the Investment Company Act of 1940, as amended. Neither the making, assuming or guaranteeing of any Borrowing, as applicable, the application of the proceeds or repayment thereof by such Loan Party nor the consummation of the other transactions contemplated hereby will violate any provision of such Act or any rule, regulation or order of the SEC thereunder.
(m) All Significant Subsidiaries of such Loan Party as of the date hereof are listed on Schedule 4.01(m) hereto under the name of such Loan Party.
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ARTICLE V
COVENANTS OF THE LOAN PARTIES
SECTION 5.01. Affirmative Covenants.
So long as any Advance or any other amount payable hereunder shall remain unpaid or any Lender shall have any Commitment hereunder, each Loan Party will:
(a) Preservation of Existence, Etc. Preserve and maintain, and cause each Significant Subsidiary of such Loan Party to preserve and maintain, its corporate, partnership or limited liability company (as the case may be) existence and all material rights (charter and statutory) and franchises; provided, however, that such Loan Party and any Significant Subsidiary thereof may consummate any merger or consolidation permitted under Section 5.02(a); and provided further that neither such Loan Party nor any Significant Subsidiary thereof shall be required to preserve any right or franchise if (i) the board of directors of such Loan Party or such Significant Subsidiary, as the case may be, shall determine that the preservation thereof is no longer desirable in the conduct of the business of such Loan Party or such Significant Subsidiary, as the case may be, and that the loss thereof is not disadvantageous in any material respect to such Loan Party or such Significant Subsidiary, as the case may be, or to the Lenders; (ii) required in connection with or pursuant to any Restructuring Law; or (iii) required in connection with the RTO Transaction; and provided further, that no Significant Subsidiary of a Loan Party shall be required to preserve and maintain its corporate existence if (x) the loss thereof is not disadvantageous in any material respect to such Loan Party or to the Lenders or (y) required in connection with or pursuant to any Restructuring Law or (z) required in connection with the RTO Transaction.
(b) Compliance with Laws, Etc. Comply, and cause each Significant Subsidiary of such Loan Party to comply, in all material respects, with Applicable Law, with such compliance to include, without limitation, compliance with ERISA and Environmental Laws.
(c) Performance and Compliance with Other Agreements. Perform and comply, and cause each Significant Subsidiary of such Loan Party to perform and comply, with the provisions of each indenture, credit agreement, contract or other agreement by which it is bound, the non-performance or non-compliance with which would result in a Material Adverse Change.
(d) Inspection Rights. At any reasonable time and from time to time, permit the Administrative Agent or any Lender or any agents or representatives thereof to examine and make copies of and abstracts from the records and books of account of, and visit the properties of, such Loan Party and any Significant Subsidiary of such Loan Party and to discuss the affairs, finances and accounts of such Loan Party and any Significant Subsidiary of such Loan Party with any of their officers or directors and with their independent certified public accountants.
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(e) Maintenance of Properties, Etc. Maintain and preserve, and cause each Significant Subsidiary of such Loan Party to maintain and preserve, all of its properties that are used or useful in the conduct of its business in good working order and condition, ordinary wear and tear excepted and except as required in connection with or pursuant to any Restructuring Law or in connection with RTO Transaction.
(f) Maintenance of Insurance. Maintain, and cause each Significant Subsidiary of such Loan Party to maintain, insurance with responsible and reputable insurance companies or associations in such amounts and covering such risks as is usually carried by companies engaged in similar businesses and owning similar properties; provided, however, that such Loan Party and each Significant Subsidiary thereof may self-insure to the same extent as other companies engaged in similar businesses and owning similar properties and to the extent consistent with prudent business practice.
(g) Payment of Taxes, Etc. Pay and discharge, and cause each of its Subsidiaries to pay and discharge, before the same shall become delinquent, (i) all taxes, assessments and governmental charges or levies imposed upon it or upon its property and (ii) all lawful claims that, if unpaid, might by law become a Lien upon its property; provided, however, that neither such Loan Party nor any of its Subsidiaries shall be required to pay or discharge any such tax, assessment, charge or claim that is being contested in good faith and by proper proceedings and as to which adequate reserves are being maintained in accordance with GAAP, unless and until any Lien resulting therefrom attaches to its property and becomes enforceable against its other creditors.
(h) Keeping of Books. Keep, and cause each Significant Subsidiary of such Loan Party to keep, proper books of record and account, in which full and correct entries shall be made of all financial transactions and the assets and business of such Loan Party and each such Significant Subsidiary in accordance with GAAP.
(i) Reporting Requirements. Furnish to the Lenders:
(i) as soon as available and in any event within 60 days after the end of each of the first three quarters of each fiscal year of such Loan Party, (A) with respect to AEP, OPCo and APCo, a copy of AEP’s Quarterly Report on Form 10-Q for such quarter, as filed with the SEC, which shall contain a consolidated balance sheet of such Loan Party and its Subsidiaries as of the end of such quarter and consolidated statements of income and cash flows of such Loan Party and its Subsidiaries for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, duly certified (subject to year-end audit adjustments) by the chief financial officer, chief accounting officer, treasurer or assistant treasurer of AEP as having been prepared in accordance with generally accepted accounting principles, and (B) with respect to KPCo, a copy of the consolidated balance sheet of KPCo as of the end of such quarter and consolidated statements of income and cash flows of KPCo for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, duly certified (subject to year-end audit adjustments) by the chief
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(ii) as soon as available and in any event within 120 days after the end of each fiscal year of such Loan Party, (A) with respect to AEP, OPCo and APCo, a copy of AEP’s Annual Report on Form 10-K for such year, as filed with the SEC, which shall contain a copy of the annual audit report for such year for such Loan Party and its Subsidiaries, containing a consolidated balance sheet of such Loan Party and its Subsidiaries as of the end of such fiscal year and consolidated statements of income and cash flows of such Loan Party and its Subsidiaries for such fiscal year, in each case accompanied by an opinion by Deloitte & Touche LLP or another independent registered public accounting firm acceptable to the Required Lenders, and consolidating statements of income and cash flows of such Loan Party and its Subsidiaries for such fiscal year, and (B) with respect to KPCo, a copy of the annual report for such year for KPCo, containing a consolidated balance sheet of KPCo as of the end of such fiscal year and consolidated statements of income and cash flows of KPCo for such fiscal year, in each case accompanied by an opinion by Deloitte & Touche LLP or another independent registered public accounting firm acceptable to the Required Lenders, and consolidating statements of income and cash flows of KPCo for such fiscal year, and with respect to each such Loan Party, a certificate of the chief financial officer, chief accounting officer, treasurer or assistant treasurer of such Loan Party as to compliance with the terms of this Agreement and (1) certifying that (x) there has been no Specified Debt Issuance effected in such year (other than any such Specified Debt Issuance that resulted in a mandatory prepayment of Advances having been made during such period pursuant to Section 2.10(b)), and (y) there have been no Subsidiaries that have become Significant Subsidiaries of such Loan Party at any time during such period, or any Subsidiaries that have ceased to be Significant Subsidiaries of such Loan Party at any time during such period, in each case except as expressly identified in such certificate, and (2) setting forth in reasonable detail the calculations necessary to demonstrate
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(iii) as soon as possible and in any event within five days after the chief financial officer or treasurer of such Loan Party obtains knowledge of the occurrence of each Default continuing on the date of such statement, a statement of the chief financial officer or treasurer of such Loan Party setting forth details of such Default and the action that such Loan Party has taken and proposes to take with respect thereto;
(iv) promptly after the sending or filing thereof, copies of all Reports on Form 8-K that such Loan Party or any Significant Subsidiary of such Loan Party files with the SEC or any national securities exchange;
(v) promptly after the commencement thereof, notice of all actions and proceedings before any Governmental Authority or arbitrator affecting such Loan Party or any Significant Subsidiary of such Loan Party of the type described in Section 4.01(e);
(vi) as soon as possible and in any event not later than one Business Day after each Specified Debt Issuance, written notice of such Specified Debt Issuance and the estimated amount of any mandatory prepayment required pursuant to Section 2.10(b) in respect of such Specified Debt Issuance; and
(vii) such other information respecting such Loan Party or any of its Subsidiaries as any Lender through the Administrative Agent may from time to time reasonably request.
Notwithstanding the foregoing, the information required to be delivered pursuant to clauses (i), (ii) and (iv) shall be deemed to have been delivered if such information shall be available on the website of the SEC at http://www.sec.gov (or any successor website) or on AEP’s website; provided that the compliance certificates required under clauses (i) and (ii) shall be delivered in the manner specified in Section 9.02(b).
SECTION 5.02. Negative Covenants.
So long as any Advance or any other amount payable hereunder shall remain unpaid or any Lender shall have any Commitment hereunder, each Loan Party agrees that it will not:
(a) Mergers, Etc. Merge or consolidate with or into any Person, or permit any Significant Subsidiary of such Loan Party to do so, except that (i) any Subsidiary of such Loan Party may merge or consolidate with or into any other Subsidiary of such Loan Party, (ii) any Subsidiary of such Loan Party may merge into such Loan Party, (iii) any Significant Subsidiary of such Loan Party may merge with or into any other Person so long as such Significant Subsidiary continues to be a Significant Subsidiary of such
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(b) Stock of Significant Subsidiaries. Sell, lease, transfer or otherwise dispose of, other than (i) in connection with an RTO Transaction, but only if no Default or Event of Default has occurred and is continuing or would result from such RTO Transaction, (ii) pursuant to the requirements of any Restructuring Law or (iii) in connection with, and solely to the extent necessary to consummate, the AGR Transfer, the APCo Transfer or the KPCo Transfer (provided, in each case of this clause (iii), that no Default shall have occurred and be continuing at the time of such proposed transaction or would result therefrom), equity interests in any Significant Subsidiary of such Loan Party (other than AEP Resources, Inc., AEP Energy Services, Inc. or CSW Energy, Inc.) if such Significant Subsidiary would cease to be a Subsidiary of a Loan Party as a result of such sale, lease, transfer or disposition.
(c) Sales, Etc. of Assets. Sell, lease, transfer or otherwise dispose of, or permit any Significant Subsidiary of such Loan Party (other than AEP Resources, Inc., AEP Energy Services, Inc. or CSW Energy, Inc.) to sell, lease, transfer or otherwise dispose of, any assets, or grant any option or other right to purchase, lease or otherwise acquire any assets, except (i) sales in the ordinary course of its business, (ii) sales, leases, transfers or dispositions of assets to any Person that is not a wholly-owned Subsidiary of such Loan Party that in the aggregate do not exceed 20% of the Consolidated Tangible Net Assets of such Loan Party and its Subsidiaries, whether in one transaction or a series of transactions, (iii) other sales, leases, transfers and dispositions made in connection with an RTO Transaction or pursuant to the requirements of any Restructuring Law or to a wholly owned Subsidiary of such Loan Party, (iv) sales of pollution control assets to a state or local government or any political subdivision or agency thereof in connection with any transaction with such Person pursuant to which such Person sells or otherwise transfers such pollution control assets back to such Loan Party or a Subsidiary of such Loan Party under an installment sale, loan or similar agreement, in each case in connection with the issuance of pollution control or similar bonds, or (v) the AGR Transfer, the APCo Transfer or the KPCo Transfer; provided, in each case of this clause (v), that no Default shall have occurred and be continuing at the time of such proposed transaction or would result therefrom.
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(d) Liens, Etc. Create or suffer to exist, or permit any Significant Subsidiary of such Loan Party to create or suffer to exist, any Lien on or with respect to any of its properties, including, without limitation, on or with respect to equity interests in any Subsidiary of such Loan Party, whether now owned or hereafter acquired, or assign, or permit any Significant Subsidiary of such Loan Party to assign, any right to receive income (other than in connection with Stranded Cost Recovery Bonds and the sale of accounts receivable by such Loan Party), other than (i) Permitted Liens, (ii) the Liens existing on the date hereof, (iii) Liens securing first mortgage bonds issued by such Loan Party (excluding AEP) or any Subsidiary of such Loan Party (including Subsidiaries of AEP) the rates or charges of which are regulated by the Federal Energy Regulatory Commission or any state governmental authority, provided that the aggregate principal amount of such first mortgage bonds of any such Loan Party (excluding AEP) or such Subsidiary do not exceed 66-2/3% of the net value of plant, property and equipment of such Loan Party (excluding AEP) or such Subsidiary, as applicable, and (iv) the replacement, extension or renewal of any Lien permitted by clauses (ii) and (iii) above upon or in the same property theretofore subject thereto or the replacement, extension or renewal (without increase in the amount or change in any direct or contingent obligor) of the Debt secured thereby.
(e) Restrictive Agreements. Enter into, or permit any Significant Subsidiary of such Loan Party to enter into (except in connection with or pursuant to any Restructuring Law), any agreement after the date hereof, or amend, supplement or otherwise modify any agreement existing on the date hereof, that imposes any restriction on the ability of any Significant Subsidiary of such Loan Party to make payments, directly or indirectly, to its shareholders by way of dividends, advances, repayment of loans or intercompany charges, expenses and accruals or other returns on investments that is more restrictive than any such restriction applicable to such Significant Subsidiary on the date hereof; provided, however, that any Significant Subsidiary of such Loan Party may agree to a financial covenant limiting its ratio of Consolidated Debt to Consolidated Capital to no more than 0.675 to 1.000.
(f) ERISA. (i) Terminate or withdraw from, or permit any of its ERISA Affiliates to terminate or withdraw from, any Plan with respect to which such Loan Party or any of its ERISA Affiliates may have any liability by reason of such termination or withdrawal, if such termination or withdrawal could have a Material Adverse Effect, (ii) incur a full or partial withdrawal, or permit any ERISA Affiliate to incur a full or partial withdrawal, from any Multiemployer Plan with respect to which such Loan Party or any of its ERISA Affiliates may have any liability by reason of such withdrawal, if such withdrawal could have a Material Adverse Effect, (iii) otherwise fail, or permit any of its ERISA Affiliates to fail, to comply in all material respects with ERISA or the related provisions of the Internal Revenue Code if such noncompliances, singly or in the aggregate, could have a Material Adverse Effect, or (iv) fail, or permit any of its Subsidiaries to fail, to comply with Applicable Law with respect to any Foreign Plan if such noncompliances, singly or in the aggregate, could have a Material Adverse Effect.
(g) Use of Proceeds. Use the proceeds of any Borrowing to buy or carry Margin Stock.
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SECTION 5.03. Financial Covenant.
So long as any Advance shall remain unpaid or any Lender shall have any Commitment hereunder, each Loan Party will maintain a ratio of Consolidated Debt to Consolidated Capital, as of the last day of each March, June, September and December, of not greater than 0.675 to 1.000.
ARTICLE VI
GUARANTY
SECTION 6.01. Guaranty.
Effective as of the date of the AGR Assumption, the Guarantor hereby irrevocably, absolutely and unconditionally guarantees (this “Parent Guaranty”) the full and prompt payment, as and when due, of all of the obligations of AGR to each Credit Party under the Loan Documents, including, without limitation, the payment of any and all amounts payable by AGR under the Loan Documents, whether for principal, interest, fees, indemnities or otherwise (the “Guaranteed Obligations”). The Guarantor agrees that, in the event that AGR fails to timely pay when due any Guaranteed Obligations to any Credit Party, then the Guarantor will immediately upon notice by the Administrative Agent pay such Guaranteed Obligations in the place and stead of AGR in the manner set forth for such Guaranteed Obligations in the Loan Documents. The Guarantor agrees that this Parent Guaranty constitutes a guaranty of payment when due and not of collection. The Guarantor agrees to pay all reasonable and documented out of pocket costs and expenses incurred by each Credit Party in enforcing its rights hereunder. Notwithstanding any to the contrary above, the Guarantor shall be released from its Guaranteed Obligations with respect to Advances that are assumed from AGR by APCo or KPCo pursuant to Section 2.17.
SECTION 6.02. Guaranty Absolute and Unconditional.
The obligations of the Guarantor under this Article VI shall remain in full force and effect without regard to, and shall not be affected or impaired by any of the following, any of which may be taken without the consent of, or notice to, the Guarantor:
(a) any exercise or non-exercise by any Credit Party of any right or privilege under the Loan Documents;
(b) any extension (including without limitation extensions of time for payment), renewal, amendment, restructuring or restatement of, or any acceptance of late or partial payments under, or increase in the principal amount of Debt under, or other modification of terms under, the Loan Documents;
(c) any bankruptcy, insolvency, reorganization, dissolution, liquidation or similar proceeding relating to AGR or any Affiliate of AGR;
(d) the existence of any facts or circumstances that cause (or result in) any of the representations or warranties of any Loan Party under the Loan Documents to be inaccurate;
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(e) any merger, consolidation, restructuring or termination of the corporate existence of AGR or the Guarantor; or
(f) the illegality, invalidity or unenforceability of any of all or any part of the Guaranteed Obligations.
This Article VI shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Guaranteed Obligations is rescinded or must otherwise be returned by any Credit Party or any other Person upon the insolvency, bankruptcy or reorganization of the Guarantor, AGR or otherwise, all as though such payment had not been made.
SECTION 6.03. Authorization; Other Agreements.
The Credit Parties are hereby authorized, without notice to or demand upon the Guarantor and without discharging or otherwise affecting the obligations of the Guarantor hereunder and without incurring any liability hereunder, from time to time, to do each of the following:
(a) (i) modify, amend, supplement or otherwise change, (ii) accelerate or otherwise change the time of payment or (iii) waive or otherwise consent to noncompliance with, any Guaranteed Obligation or any Loan Document;
(b) apply to the Guaranteed Obligations any sums by whomever paid or however realized to any Guaranteed Obligation in such order as provided in the Loan Documents;
(c) refund at any time any payment received by any Credit Party in respect of any Guaranteed Obligation;
(d) add, release or substitute the Guarantor or any makers or endorsers of any Guaranteed Obligation or any part thereof;
(e) otherwise deal in any manner with AGR and the Guarantor, any maker or endorser of any Guaranteed Obligation or any part thereof; and
(f) settle, release, compromise, collect or otherwise liquidate the Guaranteed Obligations.
SECTION 6.04. Independent Obligations.
The obligations of the Guarantor under this Article VI are independent of the obligations of AGR and, in the event of any default with respect to this Parent Guaranty, a separate action or actions may be brought and prosecuted against the Guarantor whether or not AGR is joined therein or a separate action or actions are brought against AGR. All remedies of the Credit Parties are cumulative.
SECTION 6.05. Waivers.
The Guarantor unconditionally and irrevocably waives:
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(a) except as expressly provided in Section 6.01, demands, protests or notices as the same pertain to AGR;
(b) any right to require the Credit Parties to proceed against AGR, or to exhaust any security held by the Credit Parties or to pursue any other remedy;
(c) any right to assert against any Credit Party, as a defense, counterclaim, set-off, recoupment or cross claim in respect of the Guaranteed Obligations, any defense (legal or equitable) or other claim that the Guarantor may now or at any time hereafter have against AGR or any other Person (other than payment of the Obligations in full);
(d) any defense based upon an election of remedies by any Credit Party, unless the same would excuse performance by AGR under the Loan Documents;
(e) any duty of any Credit Party to advise the Guarantor of any information known to such Credit Party regarding AGR or its ability to perform under the Loan Documents; and
(f) any other circumstance that might otherwise constitute a defense available to, or a discharge of, the Guarantor.
SECTION 6.06. Limitation of Parent Guaranty.
Any term or provision of this Parent Guaranty or any other Loan Document to the contrary notwithstanding, the maximum aggregate amount for which the Guarantor shall be liable hereunder shall not exceed the maximum amount for which the Guarantor can be liable without rendering this Parent Guaranty subject to avoidance under applicable requirements of law relating to fraudulent conveyance or fraudulent transfer (including the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act and Section 548 of title 11 of the United States Code or any applicable provisions of comparable requirements of law). If any obligation under this Article VI shall be declared invalid or unenforceable in accordance with this Section 6.06, it is the stated intention of the parties hereto that any balance of the obligation created by such provision and all other obligations of the Guarantor under this Article VI to each Credit Party shall remain valid and enforceable and that all sums not in excess of those permitted under applicable law shall remain fully collectable by the Credit Parties.
SECTION 6.07. Subrogation.
The Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against AGR that arise from the existence, payment, performance or enforcement of the Guaranteed Obligations under or in respect of any Loan Document, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of any Credit Party against AGR, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from AGR, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Guaranteed Obligations and all other amounts payable under the Loan Documents shall have been paid in full in cash and the Commitments shall have expired or been terminated. If any amount shall be
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SECTION 6.08. Termination.
Subject to the last sentence of Section 6.01, this Parent Guaranty shall constitute a continuing guaranty and shall continue in full force and effect until such time as the Guaranteed Obligations (other than contingent indemnity obligations) shall have been fully paid or otherwise extinguished under the Loan Documents.
SECTION 6.09. Reliance.
The Guarantor hereby assumes responsibility for keeping itself informed of the financial condition of AGR and any other guarantor, maker or endorser of any Guaranteed Obligation or any part thereof, and of all other circumstances bearing upon the risk of nonpayment of any Guaranteed Obligation or any part thereof that diligent inquiry would reveal, and the Guarantor hereby agrees that no Credit Party shall have any duty to advise the Guarantor of information known to it regarding such condition or any such circumstances. In the event any Credit Party, in its sole discretion, undertakes at any time or from time to time to provide any such information to the Guarantor, such Credit Party shall be under no obligation to (i) undertake any investigation not a part of its regular business routine, (ii) disclose any information that such Credit Party, pursuant to accepted or reasonable commercial finance or banking practices, wishes to remain confidential, or (iii) make any future disclosures of such information or any other information to the Guarantor.
ARTICLE VII
EVENTS OF DEFAULT
SECTION 7.01. Events of Default.
If any of the following events shall occur and be continuing with respect to any Loan Party (as to such Loan Party, an “Event of Default”); provided, that the occurrence of an event
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described in Section 7.01(e) as to AEP shall also be an Event of Default as to AGR and the occurrence of an event described in Section 7.01(i) shall be an Event of Default solely as to AEP and AGR:
(a) Such Loan Party shall fail to pay any principal of any Advance when the same becomes due and payable, or shall fail to pay any interest on any Advance or make any other payment of fees or other amounts payable under this Agreement within five days after the same becomes due and payable; or
(b) Any representation or warranty made by such Loan Party herein or by such Loan Party (or any of its officers) in connection with this Agreement shall prove to have been incorrect in any material respect when made; or
(c) (i) Such Loan Party shall fail to perform or observe any term, covenant or agreement contained in Section 5.01(a), 5.01(i)(iii) or 5.02 (other than Section 5.02(f)), or (ii) such Loan Party shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or any other Loan Document if such failure shall remain unremedied for 30 days after written notice thereof shall have been given to such Loan Party by the Administrative Agent or any Lender; or
(d) Any event shall occur or condition shall exist under any agreement or instrument relating to Debt of such Loan Party (but excluding Debt outstanding hereunder) or any Significant Subsidiary of such Loan Party outstanding in a principal or notional amount of at least $50,000,000 in the aggregate if the effect of such event or condition is to accelerate or require early termination of the maturity or tenor of such Debt, or any such Debt shall be declared to be due and payable, or required to be prepaid or redeemed (other than by a regularly scheduled required prepayment or redemption), terminated, purchased or defeased, or an offer to prepay, redeem, purchase or defease such Debt shall be required to be made, in each case prior to the stated maturity or the original tenor thereof; or
(e) Such Loan Party or any Significant Subsidiary of such Loan Party shall generally not pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against such Loan Party or any Significant Subsidiary of such Loan Party seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property and, in the case of any such proceeding instituted against it (but not instituted by it), either such proceeding shall remain undismissed or unstayed for a period of 60 days, or any of the actions sought in such proceeding (including, without limitation, the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, it or for any substantial part of its property) shall occur; or such Loan Party or any Significant Subsidiary of such Loan Party shall
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(f) (i) Any entity, person (within the meaning of Section 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) that as of the date hereof was beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of less than 30% of the Voting Stock of AEP shall acquire a beneficial ownership (within the meaning of Rule 13d-3 of the SEC under the Exchange Act), directly or indirectly, of Voting Stock of AEP (or other securities convertible into such Voting Stock) representing 30% or more of the combined voting power of all Voting Stock of AEP; (ii) during any period of up to 24 consecutive months, commencing after the date hereof, individuals who at the beginning of such 24-month period were directors of AEP shall cease for any reason to constitute a majority of the board of directors of AEP, provided that any person becoming a director subsequent to the date hereof, whose election, or nomination for election by AEP’s shareholders, was approved by a vote of at least a majority of the directors of the board of directors of AEP as comprised as of the date hereof (other than the election or nomination of an individual whose initial assumption of office is in connection with an actual or threatened election contest relating to the election of the directors of AEP) shall be, for purposes of this provision, considered as though such person were a member of the board as of the date hereof; or (iii) AEP shall cease to own, directly or indirectly, 100% of the Voting Stock of OPCo, APCo or KPCo, to the extent such Borrower has any outstanding Advances or unpaid interest or other amounts owing under this Agreement at such time; or
(g) Any judgment or order for the payment of money in excess of $50,000,000 in the case of such Loan Party or any Significant Subsidiary of such Loan Party to the extent not paid or insured shall be rendered against such Loan Party or any Significant Subsidiary of such Loan Party and either (i) enforcement proceedings shall have been commenced by any creditor upon such judgment or order or (ii) there shall be any period of 30 consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect; or
(h) (i) The termination of or withdrawal from the United Mine Workers’ of America 1974 Pension Trust by such Loan Party or any of its ERISA Affiliates shall have occurred and the liability of such Loan Party and its ERISA Affiliates related to such termination or withdrawal exceeds $75,000,000 in the aggregate; or (ii) any other ERISA Event shall have occurred and the liability of such Loan Party and its ERISA Affiliates related to such ERISA Event exceeds $50,000,000; or
(i) the Parent Guaranty shall cease to be in full force and effect while AGR is a Borrower or has any obligations under this Agreement, or the Guarantor shall deny or disaffirm in writing its obligations under the Guaranty;
then, and in any such event, the Administrative Agent (i) shall at the request, or may with the consent, of the Required Lenders, by notice to OPCo, declare the obligation of each Lender to make Advances to OPCo to be terminated, whereupon the same shall forthwith terminate, and
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(ii) shall at the request, or may with the consent, of the Required Lenders, by notice to the defaulting Borrower (or in the case of an Event of Default with respect to AEP, AGR), declare the outstanding Advances owing by such Borrower, all interest thereon and all other amounts payable under this Agreement to be forthwith due and payable, whereupon such outstanding Advances, all such interest and all such amounts shall become and be forthwith due and payable by such Borrower, without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by such Borrower; provided, however, that in the event of an actual or deemed entry of an order for relief with respect to any Loan Party or any Significant Subsidiary of such Loan Party under the Federal Bankruptcy Code, (A) the obligation of each Lender to make Advances to OPCo shall automatically be terminated and (B) the outstanding Advances owing by the defaulting Borrower (or in the case of an Event of Default with respect to AEP, AGR), all interest thereon and all other amounts payable under this Agreement shall automatically become and be due and payable, without presentment, demand, protest or any notice of any kind, all of which are hereby expressly waived by such Borrower.
ARTICLE VIII
THE ADMINISTRATIVE AGENT
SECTION 8.01. Authorization and Action.
Each Lender hereby appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement as are delegated to the Administrative Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto. As to any matters expressly provided for in this Agreement as being subject to the discretion of the Administrative Agent, such matters shall be subject to the sole discretion of the Administrative Agent, its directors, officers, agents and employees. As to any matters not expressly provided for by this Agreement (including, without limitation, enforcement or collection of the outstanding Borrowings), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Required Lenders, and such instructions shall be binding upon all Lenders; provided, however, that the Administrative Agent shall not be required to take any action that exposes the Administrative Agent to personal liability or that is contrary to this Agreement or Applicable Law. The Administrative Agent agrees to give to each Lender prompt notice of each notice given to it by the Borrowers pursuant to the terms of this Agreement.
SECTION 8.02. Agent’s Reliance, Etc.
Neither the Administrative Agent nor any of its directors, officers, agents or employees shall be liable for any action taken or omitted to be taken by it or them under or in connection with this Agreement, except for its or their own gross negligence or willful misconduct as determined in a final, non-appealable judgment by a court of competent jurisdiction. Without limitation of the generality of the foregoing, the Administrative Agent: (i) may treat each Lender recorded in the Register as the owner of the Commitment recorded for such Lender in the Register until the Administrative Agent receives and accepts an Assignment and Assumption entered into by such Lender, as assignor, and an Eligible Assignee, as assignee, as provided in Section 9.07 and except as provided otherwise in Section 9.16; (ii) may consult with legal
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SECTION 8.03. Wells Fargo and its Affiliates.
With respect to its Commitments and the Advances made by it, Wells Fargo shall have the same rights and powers under this Agreement as any other Lender and may exercise the same as though it were not the Administrative Agent; and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated, include Wells Fargo in its individual capacity. Wells Fargo and its Affiliates may accept deposits from, lend money to, act as trustee under indentures of, accept investment banking engagements from and generally engage in any kind of business with, any Lender, any of its Subsidiaries and any Person who may do business with or own securities of any Lender or any such Subsidiary, all as if Wells Fargo were not the Administrative Agent and without any duty to account therefor to the Lenders.
SECTION 8.04. Lender Credit Decision.
Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender and based on the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement.
SECTION 8.05. Indemnification.
Each Lender severally agrees to indemnify the Administrative Agent (to the extent not promptly reimbursed by the Loan Parties and without limiting the Loan Parties’ obligation to do so) from and against such Lender’s ratable share (determined as provided below) of any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever that may be imposed on, incurred by, or asserted against the Administrative Agent in any way relating to or arising out of this Agreement or any action taken or omitted by the Administrative Agent under this Agreement; provided, however, that no Lender shall be liable for any portion of such liabilities, obligations, losses, damages,
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SECTION 8.06. Successor Agent.
The Administrative Agent may resign at any time by giving written notice thereof to the Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Agent to the Administrative Agent that has resigned. If no successor Administrative Agent shall have been so appointed by the Required Lenders, and shall have accepted such appointment, within 30 days after the retiring Administrative Agent’s giving of notice of resignation, then such retiring Administrative Agent may, on behalf of the Lenders, appoint a successor Administrative Agent, which shall be a Lender or an Affiliate of a Lender that is commercial bank organized under the laws of the United States or of any State thereof and having a combined capital and surplus of at least $500,000,000. Upon the acceptance of any appointment as Administrative Agent hereunder by a successor Agent, such successor Administrative Agent shall succeed to and become vested with all the rights, powers, discretion, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations under this Agreement. After any retiring Administrative Agent’s resignation hereunder as Administrative Agent, the provisions of this Article VII 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.
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ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc.
Subject to Section 9.16(a)(i), no amendment or waiver of any provision of this Agreement, nor consent to any departure by any Loan Party therefrom, shall in any event be effective unless the same shall be in writing and signed by the Required Lenders and the Loan Parties, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that no amendment, waiver or consent shall (a) unless in writing and signed by all the Lenders (other than, in the case of the following clauses (i) through (v), any Defaulting Lender), do any of the following: (i) amend Section 3.01 or 3.02 or waive any of the conditions specified therein, (ii) increase the aggregate amount of the Commitments, (iii) change the definition of Required Lenders or the percentage of the Commitments or of the aggregate unpaid principal amount of the outstanding Borrowings, or the number or percentage of the Lenders, that shall be required for the Lenders or any of them to take any action hereunder, (iv) amend or waive this Section 9.01 or any provision of this Agreement that requires pro rata treatment of the Lenders or (v) release AEP from its obligations under Article VI; or (b) unless in writing and signed by each Lender that is directly affected thereby, do any of the following: (1) increase the amount or extend the termination date of such Lender’s Commitment, or subject such Lender to any additional obligations, (2) reduce the principal of, or interest on, or rate of interest applicable to, the outstanding Advances of such Lender or any fees or other amounts payable to such Lender hereunder, or (3) postpone any date fixed for any payment of principal of, or interest on, the outstanding Advances or any fees or other amounts payable to such Lender hereunder; and provided further that (x) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required above to take such action, affect the rights or duties of the Administrative Agent under this Agreement, and (y) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent and the Required Lenders, amend or waive Section 9.16. Notwithstanding the foregoing, any provision of this Agreement may be amended by an agreement in writing entered into by the Loan Parties, the Required Lenders and the Administrative Agent if (i) by the terms of such agreement the Commitment of each Lender not consenting to the amendment provided for therein shall terminate (but such Lender shall continue to be entitled to the benefits of Sections 2.11, 2.14 and 9.04) upon the effectiveness of such amendment and (ii) at the time such amendment becomes effective, each Lender not consenting thereto receives payment in full of the principal outstanding amount of and interest accrued on each Advance made by it, and all other amounts owing to it or accrued for its account under this Agreement and is released from its obligations hereunder.
SECTION 9.02. Notices, Etc.
(a) Each Loan Party hereby agrees that any notice that is required to be delivered to it hereunder shall be delivered to such Loan Party as set forth in this Section 9.02. All notices and other communications provided for hereunder shall be in writing (including fax) and mailed, faxed or delivered, if to any Loan Party, to it in care of AEP at its address at 1 Riverside Plaza, Columbus, Ohio 43215, Attention: Treasurer (fax: 614-716-2807; telephone: 614-716-2885; email: jsloat@aep.com), with a copy to the General Counsel (fax: 614-716-1687; telephone: 614-
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(b) Each Loan Party and each Lender hereby agrees that the Administrative Agent may make any information required to be delivered under Section 5.01(i)(i), (ii), (iv) and (v) (the “Communications”) available to the Lenders by posting the Communications on SyndTrak or a substantially similar electronic transmission systems (the “Platform”). Each Loan Party and each Lender hereby acknowledges that the distribution of material through an electronic medium is not necessarily secure and that there are confidentiality and other risks associated with such distribution.
(c) THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE”. THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE COMMUNICATIONS, OR THE ADEQUACY OF THE PLATFORM AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN THE COMMUNICATIONS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY THE AGENT PARTIES IN CONNECTION WITH THE COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES (COLLECTIVELY, “AGENT PARTIES”) HAVE ANY LIABILITY TO ANY LOAN PARTY, ANY LENDER OR ANY OTHER PERSON OR ENTITY FOR DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT,
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The Administrative Agent agrees that the receipt of the Communications by the Administrative Agent at its e-mail address set forth above shall constitute effective delivery of the Communications to the Administrative Agent for purposes of the Loan Documents. Each Lender agrees that notice to it (as provided in the next sentence) specifying that the Communications have been posted to the Platform shall constitute effective delivery of the Communications to such Lender for purposes of the Loan Documents. Each Lender agrees (i) to notify the Administrative Agent in writing (including by electronic communication) from time to time of such Lender’s e-mail address to which the foregoing notice may be sent by electronic transmission and (ii) that the foregoing notice may be sent to such e-mail address.
Nothing herein shall prejudice the right of the Administrative Agent or any Lender to give any notice or other communication pursuant to any Loan Document in any other manner specified in such Loan Document.
SECTION 9.03. No Waiver; Remedies.
No failure on the part of any Lender or the Administrative Agent to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.
SECTION 9.04. Costs and Expenses.
(a) Each Borrower agrees to pay promptly upon demand all reasonable out-of-pocket costs and expenses of the Administrative Agent in connection with the preparation, execution, delivery, administration, modification and amendment of this Agreement and the other documents to be delivered hereunder, including, without limitation, (i) all due diligence, syndication (including printing, distribution and bank meetings), transportation, computer, duplication, appraisal, consultant, and audit expenses and (ii) the reasonable fees and expenses of counsel for the Administrative Agent with respect thereto and with respect to advising the Administrative Agent as to its rights and responsibilities under this Agreement. Each Borrower further agrees to pay promptly upon demand all costs and expenses of the Administrative Agent and the Lenders, if any (including, without limitation, counsel fees and expenses), in connection with the enforcement (whether through negotiations, legal proceedings or otherwise) of this Agreement and the other documents to be delivered hereunder, including, without limitation, reasonable fees and expenses of counsel for the Administrative Agent and the Lenders in connection with the enforcement of rights under this Section 9.04(a).
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(b) Each Borrower agrees to indemnify and hold harmless each Lender and the Administrative Agent and each of their respective Related Parties (each, an “Indemnified Party”) from and against any and all claims, damages, losses and liabilities, joint or several, to which any such Indemnified Party may become subject, in each case arising out of or in connection with or relating to (including, without limitation, in connection with any investigation, litigation or proceeding or preparation of a defense in connection therewith) (i) this Agreement, any of the transactions contemplated herein or the actual or proposed use of the proceeds of the Advances (ii) any error or omission in connection with posting of the data required to be delivered pursuant to Section 5.01(i)(i), (ii) or (iv) on the website of the SEC or any successor website or (iii) the actual or alleged presence of Hazardous Materials on any property of such Borrower or any of its Subsidiaries or any Environmental Action relating in any way to such Borrower or any of its Subsidiaries, and to reimburse any Indemnified Party for any and all reasonable expenses (including, without limitation, reasonable fees and expenses of counsel) as they are incurred in connection with the investigation of or preparation for or defense of any pending or threatened claim or any action or proceeding arising therefrom, whether or not such Indemnified Party is a party and whether or not such claim, action or proceeding is initiated or brought by or on behalf of such Borrower or any of its Affiliates and whether or not any of the transactions contemplated hereby are consummated or this Agreement is terminated, except to the extent such claim, damage, loss, liability or expense is found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Party’s gross negligence or willful misconduct. In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 9.04(b) applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by a Borrower, its directors, shareholders or creditors or an Indemnified Party or any other Person or any Indemnified Party is otherwise a party thereto and whether or not the transactions contemplated hereby are consummated. Each Loan Party agrees not to assert any claim against any Indemnified Party on any theory of liability, for special, indirect, consequential or punitive damages arising out of or otherwise relating to this Agreement, any of the transactions contemplated herein or the actual or proposed use of the proceeds of the Advances.
(c) If any payment of principal of, or Conversion of, any Eurodollar Rate Advance is made by any Borrower to or for the account of a Lender other than on the last day of the Interest Period for such Advance, as a result of a payment or Conversion pursuant to Section 2.05, 2.08(e), 2.11 or 2.13, acceleration of the maturity of the outstanding Borrowings pursuant to Section 7.01, the assignment of any such Advance pursuant to Section 2.16(b) or for any other reason (in the case of any such payment or Conversion), such Borrower shall, promptly upon demand by such Lender (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Lender any amounts required to compensate such Lender for any additional losses, costs or expenses that it may reasonably incur as a result of such payment or Conversion, including, without limitation, any loss (other than loss of Applicable Margin), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any Lender to fund or maintain such Advance.
(d) Without prejudice to the survival of any other agreement of the Borrowers hereunder, the agreements and obligations of the Borrowers contained in Sections 2.11 and 9.04 shall survive the payment in full of principal, interest and all other amounts payable hereunder.
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(e) Each Borrower agrees that no Indemnified Party shall have any liability (whether direct or indirect, in contract or tort or otherwise) to such Borrower or its security holders or creditors related to or arising out of or in connection with this Agreement, the Advances or the use or proposed use of the proceeds thereof, any of the transactions contemplated by any of the foregoing or in the loan documentation or the performance by an Indemnified Party of any of the foregoing (including the use by unintended recipients of any information or other materials distributed through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents) except to the extent that any loss, claim, damage, liability or expense is found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Party’s gross negligence or willful misconduct.
(f) In the event that an Indemnified Party is requested or required to appear as a witness in any action brought by or on behalf of or against any Borrower or any of its Affiliates in which such Indemnified Party is not named as a defendant, each Borrower agrees to reimburse such Indemnified Party for all reasonable expenses incurred by it in connection with such Indemnified Party’s appearing and preparing to appear as such a witness, including, without limitation, the fees and disbursements of its legal counsel.
(g) Each Borrower shall be liable for its pro rata share of any payment to be made by the Borrowers under this Section 9.04, such pro rata share to be determined on the basis of such Borrower’s Fraction; provided, however, that if and to the extent that any such liabilities are reasonably determined by the Borrowers (subject to the approval of the Administrative Agent which approval shall not be unreasonably withheld) to be directly attributable to a specific Borrower, only such Borrower shall be liable for such payments.
SECTION 9.05. Right of Set-off.
Upon (i) the occurrence and during the continuance of any Event of Default and (ii) the making of the request or the granting of the consent specified by Section 7.01 to authorize the Administrative Agent to declare the outstanding Borrowings due and payable pursuant to the provisions of Section 7.01, each Credit Party and each of its Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other indebtedness at any time owing by such Credit Party or such Affiliate to or for the credit or the account of the a Loan Party against any and all of the obligations of such Loan Party now or hereafter existing under this Agreement held by such Credit Party, whether or not such Credit Party shall have made any demand under this Agreement and although such obligations may be unmatured; provided that, in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 9.16 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the obligations of the Borrowers owing to such Defaulting Lender as to which it exercised such right of setoff. Each Credit Party agrees promptly to notify the applicable Loan Party after any such set-off and application, provided that the failure to give such notice shall not affect the validity of
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such set-off and application. The rights of each Credit Party and its Affiliates under this Section are in addition to other rights and remedies (including, without limitation, other rights of set-off) that such Credit Party and its Affiliates may have.
SECTION 9.06. Binding Effect.
This Agreement shall become effective upon satisfaction of the conditions precedent specified in Section 3.01 and thereafter shall be binding upon and inure to the benefit of the Loan Parties, the Administrative Agent and each Lender and their respective successors and assigns, except that no Loan Party shall not have the right to assign its rights hereunder or any interest herein without the prior written consent of all of the Lenders. None of the Joint Lead Arrangers nor any Person designated as a “Documentation Agent” or a “Syndication Agent” with respect to this Agreement shall have any duties under this Agreement.
SECTION 9.07. Assignments and Participations.
(a) Successors and Assigns of Lenders Generally. Except as otherwise expressly provided herein, no Loan Party may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Administrative Agent and each Lender. No Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of subsection (b) of this Section, (ii) by way of participation in accordance with the provisions of subsection (d) of this Section, or (iii) by way of pledge or assignment of a security interest subject to the restrictions of subsection (e) of this Section (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in subsection (d) of this Section and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign to one or more assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Advances at the time owing to it); provided that any such assignment shall be subject to the following conditions:
(i) Minimum Amounts.
(A) in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and/or the Advances at the time owing to it or contemporaneous assignments to related Approved Funds that equal at least the amount specified in subsection (b)(i)(B) of this Section in the aggregate or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and
(B) in any case not described in subsection (b)(i)(A) of this Section, the aggregate amount of the Commitment (which for this purpose includes Advances outstanding thereunder) or, if the applicable Commitment is not then in
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(ii) Proportionate Amounts. Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Advances or the Commitment assigned.
(iii) Required Consents. No consent shall be required for any assignment except to the extent required by subsection (b)(i)(B) of this Section and, in addition:
(A) the consent of the Borrowers (such consent not to be unreasonably withheld or delayed) shall be required unless (x) a Default has occurred and is continuing (with respect to any Loan Party) at the time of such assignment, or (y) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund; provided that the Borrowers shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within ten Business Days after having received notice thereof; and
(B) the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required for assignments if such assignment is to a Person that is not a Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender.
(iv) Assignment and Assumption. The parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500 (to be paid by the assigning Lender, or, in the case of an assignment pursuant to Section 2.16(b), the Borrowers); provided that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment. The assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire.
(v) No Assignment to Certain Persons. No such assignment shall be made to (A) any Borrower or any Borrower’s Affiliates or Subsidiaries or (B) to any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (B).
(vi) No Assignment to Natural Persons. No such assignment shall be made to a natural Person.
(vii) Certain Additional Payments. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be
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Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c) of this Section, from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 2.11, 2.14 and 9.04 with respect to facts and circumstances occurring prior to the effective date of such assignment; provided, that except to the extent otherwise expressly agreed in writing by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subsection shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with subsection (d) of this Section.
(c) Register. The Administrative Agent, acting solely for this purpose as a non-fiduciary agent of the Borrowers, shall maintain at one of its offices referred to in Section 9.02 a copy of each Assignment and Assumption delivered to it and a register in which it shall record the names and addresses of the Lenders, and the Commitments of, and principal amounts (and stated interest) of the Advances owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and the Borrowers, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
(d) Participations. Any Lender may at any time, without the consent of, or notice to, any Borrower or the Administrative Agent, sell participations to any Person (other than a natural
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Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver described in clauses (ii), (iii) or (iv) of the first sentence of Section 9.01 that affects such Participant. Each Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.11, 2.14, 9.04(b) and 9.04(c) (subject to the requirements and limitations therein, including the requirements under Section 2.14(g) (it being understood that the documentation required under Section 2.14(g) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Sections 2.16(b) as if it were an assignee under subsection (b) of this Section; and (B) shall not be entitled to receive any greater payment under Sections 2.11 or 2.14, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at the Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers to effectuate the provisions of Section 2.16(b) with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 9.05 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.15 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrowers, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Commitments, Advances or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
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(e) Certain Pledges. Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement 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.
SECTION 9.08. Confidentiality.
Each of the Administrative Agent and the Lenders agree to maintain the confidentiality of the Confidential Information, except that Confidential Information may be disclosed (a) to its Affiliates and to its Related Parties (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Confidential Information and instructed to keep such Confidential Information confidential); (b) to the extent required or requested by any regulatory authority purporting to have jurisdiction over such Person or its Related Parties (including any state, federal or foreign authority or examiner regulating banks, banking or other financial institutions and any self-regulatory authority, such as the National Association of Insurance Commissioners); (c) to the extent required by Applicable Law or by any subpoena or similar legal process; (d) to any other party hereto; (e) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder; (f) subject to an agreement containing provisions substantially the same as those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights and obligations under this Agreement, (ii) any actual or prospective party (or its Related Parties) to any swap, derivative or other transaction under which payments are to be made by reference to any Borrower and its obligations, this Agreement or payments hereunder or (iii) any credit insurance provider relating to any Borrower and its obligations; (g) on a confidential basis to (i) any rating agency in connection with rating any Borrower or its Subsidiaries or this Agreement or (ii) the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers with respect to this Agreement; (h) with the consent of the Borrowers; or (i) to the extent such Confidential Information (x) becomes publicly available other than as a result of a breach of this Section, or (y) becomes available to the Administrative Agent, any Lender or any of their respective Affiliates on a nonconfidential basis from a source other than the Borrowers. Any Person required to maintain the confidentiality of Confidential Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Confidential Information as such Person would accord to its own confidential information.
SECTION 9.09. Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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SECTION 9.10. Severability; Survival.
(a) In the event any one or more of the provisions contained in this Agreement should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired hereby.
(b) All covenants, agreements, representations and warranties made by the Borrowers herein and in the certificates or other instruments delivered in connection with or pursuant to this Agreement shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of this Agreement and the making of any Advances, regardless of any investigation made by any such other party or on its behalf and notwithstanding that the Administrative Agent or any Lender may have had notice or knowledge of any Default or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in full force and effect as long as the principal of or any accrued interest on any Advance or any fee or any other amount payable under this Agreement is outstanding and unpaid and so long as the Commitments have not expired or terminated.
SECTION 9.11. Execution in Counterparts.
This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement by fax shall be effective as delivery of a manually executed counterpart of this Agreement.
SECTION 9.12. Jurisdiction, Etc.
(a) EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF ANY NEW YORK STATE COURT OR FEDERAL COURT OF THE UNITED STATES OF AMERICA SITTING IN NEW YORK CITY, THE COUNTY OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH NEW YORK STATE COURT OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT SHALL AFFECT ANY RIGHT THAT ANY PARTY MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT IN THE COURTS OF ANY JURISDICTION.
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(b) EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT IN ANY NEW YORK STATE OR FEDERAL COURT. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
SECTION 9.13. Waiver of Jury Trial.
EACH BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF THE ADMINISTRATIVE AGENT, ANY BORROWER OR ANY LENDER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
SECTION 9.14. USA Patriot Act.
Each of the Lenders hereby notifies the Borrowers that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law as of October 26, 2001)) (as amended, restated, modified or otherwise supplemented from time to time, the “Patriot Act”), it is required to obtain, verify and record information that identifies the Borrowers, which information includes the name and address of the Borrowers and other information that will allow such Lender to identify the Borrowers in accordance with the Patriot Act.
SECTION 9.15. No Fiduciary Duty.
Each of the Administrative Agent, each Lender and each of their respective Affiliates and their officers, directors, controlling persons, employees, agents and advisors (collectively, solely for purposes of this Section 9.15, the “Lenders”) may have economic interests that conflict with those of the Borrowers. Each 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 between the Lenders and such Borrower, its stockholders or its Affiliates. The Borrowers acknowledge and agree that (i) the transactions contemplated by the Loan Documents are arm’s-length commercial transactions between the Lenders, on the one hand, and the Borrowers, on the other, (ii) in connection therewith and with the process leading to such transaction each of the Lenders is acting solely as a principal and not the agent or fiduciary of any Borrower, its management, stockholders, creditors or any other person, (iii) no Lender has assumed an advisory or fiduciary responsibility in favor of any Borrower with respect to the transactions contemplated hereby or the process leading thereto (irrespective of whether any Lender or any of its Affiliates has advised or is currently advising any Borrower on other matters) or any other obligation to any Borrower except the obligations expressly set forth in the Loan Documents and (iv) each Borrower has consulted its own legal and financial advisors to the
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SECTION 9.16. Defaulting Lenders.
(a) Defaulting Lender Adjustments. Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by Applicable Law:
(i) Waivers and Amendments. Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definition of Required Lenders and in Section 9.01.
(ii) Defaulting Lender Waterfall. Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VI or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 9.05 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, as the Borrowers may request (so long as no Default exists), to the funding of any Advance in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; third, if so determined by the Administrative Agent and the Borrowers, to be held in a deposit account and released pro rata in order to satisfy such Defaulting Lender’s potential future funding obligations with respect to Advances under this Agreement; fourth, to the payment of any amounts owing to the Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; fifth, so long as no Default exists, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by any Borrower against such Defaulting Lender as a result of such Defaulting Lender's breach of its obligations under this Agreement; and sixth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that, if (x) such payment is a payment of the principal amount of any Advances in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Advances were made at a time when the conditions set forth in Section 3.02 were satisfied or waived, such payment shall be applied solely to pay the Advances of all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Advances of such Defaulting Lender until such time as all Advances are held by the Lenders pro rata in accordance with the Commitments. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender pursuant to this Section 9.16(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
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(iii) Certain Fees. No Defaulting Lender shall be entitled to receive any commitment fee pursuant to Section 2.03(a) for any period during which that Lender is a Defaulting Lender (and the Borrowers shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender).
(iv) Reduction of Available Commitments. The Borrowers may terminate the Available Commitment of any Lender that is a Defaulting Lender upon not less than three Business Days’ prior notice to the Administrative Agent (which shall promptly notify the Lenders thereof), and in such event the provisions of Section 9.16(a)(ii) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Lender under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts); provided that (i) no Event of Default shall have occurred and be continuing, and (ii) such termination shall not be deemed to be a waiver or release of any claim the any Borrower, the Administrative Agent or any Lender may have against such Defaulting Lender.
(b) Defaulting Lender Cure. If the Borrowers and the Administrative Agent agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein, that Lender will, to the extent applicable, purchase at par that portion of outstanding Advances of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Advances to be held pro rata by the Lenders in accordance with the Commitments, whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to commitment fees accrued or payments made by or on behalf of the Borrowers while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed in writing by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this Agreement to be duly executed and delivered as of the date first above written.
OHIO POWER COMPANY
as a Borrower
By /s/ Julia A. Sloat
Julia A. Sloat
Treasurer
AEP GENERATION RESOURCES INC.
as a Borrower
By /s/ Julia A. Sloat
Julia A. Sloat
Treasurer
APPALACHIAN POWER COMPANY
as a Borrower
By /s/ Julia A. Sloat
Julia A. Sloat
Treasurer
KENTUCKY POWER COMPANY
as a Borrower
By /s/ Julia A. Sloat
Julia A. Sloat
Treasurer
S-1
AMERICAN ELECTRIC POWER
COMPANY, INC.
as Guarantor
By /s/ Julia A. Sloat
Julia A. Sloat
Treasurer
S-2
WELLS FARGO BANK, NATIONAL ASSOCIATION as Administrative Agent and as Lender By /s/ Sara Olesen Sara Olesen Assistant Vice President |
S-3
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD. as Lender By /s/ Chi-Cheng Chen Chi-Cheng Chen Vice President |
S-4
JPMORGAN CHASE BANK, N.A. as Lender By /s/ Bridget Killackey Bridget Killackey Vice President |
S-5
CITIBANK, N.A. as Lender By /s/ Amit Vasani Amit Vasani Vice President |
S-6
KEYBANK NATIONAL ASSOCIATION as Lender By /s/ Sherrie I. Manson Sherrie I. Manson Senior Vice President |
S-7
THE ROYAL BANK OF SCOTLAND FINANCE (IRELAND) as Lender By /s/ L. O’Connell L. O’Connell Director By /s/ B. Murray B. Murray Director |
S-8
BNP PARIBAS as Lender By /s/ Francis DeLaney Francis DeLaney Managing Director By /s/ Pasquale Perraglia Pasquale Perraglia Director |
S-9
COMPASS BANK as Lender By /s/ Michael Dixon Michael Dixon Vice President |
S-10
CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK as Lender By /s/ Darrell Stanley Darrell Stanley Managing Director By /s/ Michael Willis Michael Willis Managing Director |
S-11
FIFTH THIRD BANK as Lender By /s/ Michael J. Schultz, Jr. Michael J. Schultz, Jr. Vice President |
S-12
GOLDMAN SACHS BANK USA as Lender By /s/ Mark Walton Mark Walton Authorized Signatory |
S-13
MIZUHO BANK, LTD. as Lender By /s/ Leon Mo Leon Mo Authorized Signatory |
S-14
PNC BANK, NATIONAL ASSOCIATION as Lender By /s/ Dale A. Stein Dale A. Stein Senior Vice President |
S-15
ROYAL BANK OF CANADA as Lender By /s/ Frank Lambrinos Frank Lambrinos Authorized Signatory |
S-16
SUMITOMO MITSUI BANKING CORPORATION as Lender By /s/ James D. Weinstein James D. Weinstein Managing Director |
S-17
SUNTRUST BANK as Lender By /s/ Shannon Juhan Shannon Juhan Vice President |
S-18
THE BANK OF NEW YORK MELLON as Lender By /s/ Hussam S. Alsahlani Hussam S. Alsahlani Vice President |
S-19
THE BANK OF NOVA SCOTIA as Lender By /s/ Thane Rattew Thane Rattew Managing Director |
S-20
THE HUNTINGTON NATIONAL BANK as Lender By /s/ Amanda M. Sigg Amanda M. Sigg Vice President |
S-21
U.S. BANK as Lender By /s/ Eric J. Cosgrove Eric J. Cosgrove Vice President |
S-22
EXHIBIT A
(to the Term Credit Agreement)
FORM OF NOTICE OF BORROWING
Wells Fargo Bank, National Association, as Administrative Agent
for the Lenders party
to the Credit Agreement
referred to below
Attention: Bank Loan Syndications
[Date]
Ladies and Gentlemen:
The undersigned, Ohio Power Company, refers to the Term Credit Agreement, dated as of July 17, 2013 (as amended or modified from time to time, the “Credit Agreement,” the terms defined therein being used herein as therein defined), among the undersigned, AEP Generation Resources Inc., Appalachian Power Company and Kentucky Power Company, as the Borrowers, American Electric Power Company, Inc., as the Guarantor, certain Lenders party thereto and Wells Fargo Bank, National Association, as Administrative Agent for said Lenders, and hereby gives you notice, irrevocably, pursuant to Section 2.02(a) of the Credit Agreement that the undersigned hereby requests a Borrowing under the Credit Agreement, and in that connection sets forth below the information relating to such Borrowing (the “Proposed Borrowing”) as required by Section 2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed Borrowing is __________________, 20__.
(ii) The Type of Advances comprising the Proposed Borrowing is [Base Rate Advances][Eurodollar Rate Advances].
(iii) The aggregate amount of the Proposed Borrowing is $___________________.
[(iv) The initial Interest Period for each Eurodollar Rate Advance made as part of the Proposed Borrowing is [[one][two][three][six] month[s]] [OTHER PERIOD OF LESS THAN ONE MONTH AGREED TO BY ALL LENDERS].]
The undersigned hereby certifies that the following statements are true on the date hereof, and will be true on the date of the Proposed Borrowing:
(A) the representations and warranties of such Borrower contained in Section 4.01 of the Credit Agreement (other than Section 4.01(e) and the last sentence of Section
4.01(f)) are true and correct in all material respects on and as of the date hereof, before and after giving effect to the Proposed Borrowing and to the application of the proceeds therefrom, as though made on the date hereof; and
(B) no event has occurred and is continuing, or would result from the Proposed Borrowing or from the application of the proceeds therefrom, that constitutes a Default.
Very truly yours,
OHIO POWER COMPANY
By
Name:
Title:
A-2
EXHIBIT B
(to the Term Credit Agreement)
FORM OF ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (the “Assignment and Assumption”) is dated as of the Effective Date set forth below and is entered into by and between [the][each]1 Assignor identified in item 1 below ([the][each, an] “Assignor”) and [the][each]2 Assignee identified in item 2 below ([the][each, an] “Assignee”). [It is understood and agreed that the rights and obligations of [the Assignors][the Assignees]3 hereunder are several and not joint.]4 Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (as amended, the “Credit Agreement”), receipt of a copy of which is hereby acknowledged by [the][each] Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full.
For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to [the Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably purchases and assumes from [the Assignor][the respective Assignors], subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (i) all of [the Assignor’s][the respective Assignors’] rights and obligations in [its capacity as a Lender][their respective capacities as Lenders] under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of [the Assignor][the respective Assignors] under the Credit Agreement, and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of [the Assignor (in its capacity as a Lender)][the respective Assignors (in their respective capacities as Lenders)] against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned by [the][any] Assignor to [the][any] Assignee pursuant to clauses (i) and (ii) above being referred to herein collectively as [the][an] “Assigned Interest”). Each such sale and assignment is without recourse to [the][any] Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by [the][any] Assignor.
______________________________
| 1 | For bracketed language here and elsewhere in this form relating to the Assignor(s), if the assignment is from a single Assignor, choose the first bracketed language. If the assignment is from multiple Assignors, choose the second bracketed language. |
| 2 | For bracketed language here and elsewhere in this form relating to the Assignee(s), if the assignment is to a single Assignee, choose the first bracketed language. If the assignment is to multiple Assignees, choose the second bracketed language. |
| 3 | Select as appropriate. |
| 4 | Include bracketed language if there are either multiple Assignors or multiple Assignees. |
| 1. | Assignor[s]: ______________________________ |
______________________________
[Assignor [is] [is not] a Defaulting Lender]
| 2. | Assignee[s]: ______________________________ |
| ______________________________ |
[for each Assignee, indicate [Affiliate][Approved Fund] of [identify Lender]
| 3. | Borrower(s): | Ohio Power Company; AEP Generation Resources Inc.; Appalachian Power Company and Kentucky Power Company |
| 4. | Administrative Agent: | Wells Fargo Bank, National Association, as the Administrative Agent under the Credit Agreement |
| 5. | Credit Agreement: | The $1,000,000,000 Term Credit Agreement dated as of July 17, 2013 among Ohio Power Company, AEP Generation Resources Inc., Appalachian Power Company and Kentucky Power Company, as the Borrowers, American Electric Power Company, Inc., as the Guarantor, the Lenders parties thereto and Wells Fargo Bank, National Association, as Administrative Agent |
| 6. | Assigned Interest[s]: |
Assignor[s]5 | Assignee[s]6 | Aggregate Amount of Commitment/Advances for all Lenders7 | Amount of Commitment/Advances Assigned8 | Percentage Assigned of Commitment/Advances8 | CUSIP Number |
| $ | $ | % | |||
| $ | $ | % | |||
| $ | $ | % |
[7. Trade Date: ______________]9
[Page break]
_________________________________
| 5 | List each Assignor, as appropriate. |
| 6 | List each Assignee, as appropriate. |
| 7 | Amount to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the Effective Date. |
| 8 | Set forth, to at least 9 decimals, as a percentage of the Commitment/Advances of all Lenders thereunder. |
| 9 | To be completed if the Assignor and the Assignee(s) intend that the minimum assignment amount is to be determined as of the Trade Date. |
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Effective Date: _____________ ___, 20___ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR[S]10
[NAME OF ASSIGNOR]
| By: |
Title:
[NAME OF ASSIGNOR]
| By: |
Title:
ASSIGNEE[S]11
[NAME OF ASSIGNEE]
| By: |
Title:
[NAME OF ASSIGNEE]
| By: |
Title:
11 Add additional signature blocks as needed.
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[Consented to and]12 Accepted:
WELLS FARGO BANK, NATIONAL ASSOCIATION, as
Administrative Agent
| By: |
[Consented to:
OHIO POWER COMPANY
| By: |
AEP GENERATION RESOURCES INC.
| By: |
APPALACHIAN POWER COMPANY
| By: |
KENTUCKY POWER COMPANY
| By: |
______________________________
| 12 | To be added only if the consent of the Administrative Agent is required by the terms of the Credit Agreement. |
| 13 | To be added only if the consent of the Borrowers is required by the terms of the Credit Agreement. |
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ANNEX 1
$1,000,000,000 Term Credit Agreement dated as of July 17, 2013 among Ohio Power Company, AEP Generation Resources Inc., Appalachian Power Company and Kentucky Power Company, as the Borrowers, American Electric Power Company, Inc., as the Guarantor, the Lenders parties thereto and Wells Fargo Bank, National Association, as Administrative Agent
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
| 1. | Representations and Warranties. |
| 1.1. | Assignor[s]. [The][Each] Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of [the][the relevant] Assigned Interest, (ii) [the][such] Assigned Interest is free and clear of any lien, encumbrance or other adverse claim, (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and (iv) it is [not] a Defaulting Lender; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial condition of the Borrowers, any of their Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document or (iv) the performance or observance by the Borrowers, any of their Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Loan Document. |
| 1.2. | Assignee[s]. [The][Each] Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it meets all the requirements to be an assignee under Section 9.07(b)(iii), (v) and (vi) of the Credit Agreement (subject to such consents, if any, as may be required under Section 9.07(b)(iii) of the Credit Agreement), (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of [the][the relevant] Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of the type represented by the Assigned Interest and either it, or the Person exercising discretion in making its decision to acquire the Assigned Interest, is experienced in acquiring assets of such type, (v) it has received a copy of the Credit Agreement, and has received or has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to clauses (i) and (ii) of Section 5.01(i) thereof, as applicable, and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase [the][such] Assigned Interest, (vi) it has, independently and without |
reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Assignment and Assumption and to purchase [the][such] Assigned Interest, and (vii) attached to the Assignment and Assumption is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by [the][such] Assignee; (b) agrees that (i) it will, independently and without reliance on the Administrative Agent, [the][any] Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender and (c) appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Credit Agreement as are delegated to the Administrative Agent by the terms thereof, together with such powers and discretion as are reasonably incidental thereto.
| 2. | Payments. From and after the Effective Date, the Administrative Agent shall make all payments in respect of [the][each] Assigned Interest (including payments of principal, interest, fees and other amounts) to [the][the relevant] Assignee whether such amounts have accrued prior to, on or after the Effective Date. The Assignor[s] and the Assignee[s] shall make all appropriate adjustments in payments by the Administrative Agent for periods prior to the Effective Date or with respect to the making of this assignment directly between themselves. Notwithstanding the foregoing, the Administrative Agent shall make all payments of interest, fees or other amounts paid or payable in kind from and after the Effective Date to [the][the relevant] Assignee. |
| 3. | General Provisions. This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment and Assumption may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment and Assumption by fax shall be effective as delivery of a manually executed counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed by, and construed in accordance with, the law of the State of New York. |
B-A1-2
EXHIBIT C
(to the Term Credit Agreement)
FORM OF OPINION OF COUNSEL FOR THE LOAN PARTIES
To each of the Lenders
party to the Term Credit Agreement referred to below
and to Wells Fargo Bank, National Association, as Administrative Agent thereunder
July 17, 2013
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.01(a)(iii) of the Term Credit Agreement, dated as of July 17, 2013 (the “Credit Agreement”) among American Electric Power Company, Inc. (“AEP”), Appalachian Power Company (“APCo”), AEP Generation Resources Inc. (“AGR”), Kentucky Power Company (“KPCo”) and Ohio Power Company (collectively, the “Loan Parties”), the Initial Lenders named therein, and Wells Fargo Bank, National Association, as Administrative Agent. Terms defined in the Credit Agreement are used herein as therein defined.
I am an Associate General Counsel for American Electric Power Service Corporation, an affiliate of the Loan Parties, and have acted as counsel to the Loan Parties in connection with the preparation, execution and delivery of the Credit Agreement. I am generally familiar with each Loan Party’s corporate history, properties, operations and charter (including amendments, restatements and supplements thereto).
In connection with this opinion, I, or attorneys over whom I exercise supervision, have examined:
| (1) | The Credit Agreement. |
| (2) | The documents furnished by each Loan Party pursuant to Article III of the Credit Agreement. |
| (3) | The certificate of incorporation of each Loan Party and all amendments thereto. |
| (4) | The by-laws of each Loan Party and all amendments thereto. |
| (5) | Certificates of the Secretary of State or equivalent officer of the state in which each Loan Party is incorporated or otherwise formed, dated as of a recent date, attesting to the continued existence and good standing of such Loan Party incorporated or otherwise formed in that State. |
C-2
In addition, I, or attorneys over whom I exercise supervision, have examined the originals, or copies certified to my satisfaction, of such other corporate records of the Loan Parties, certificates of public officials and of officers of the Loan Parties, and agreements, instruments and other documents, as I have deemed necessary as a basis for the opinions expressed below.
In my examination, I, or attorneys over whom I exercise supervision, have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals and the conformity with the originals of all documents submitted to us as copies. In making our examination of documents and instruments executed or to be executed by persons other than the Loan Parties, I, or attorneys over whom I exercise supervision, have assumed that each such other person had the requisite power and authority to enter into and perform fully its obligations thereunder, the due authorization by each such other person for the execution, delivery and performance thereof and the due execution and delivery thereof by or on behalf of such person of each such document and instrument. In the case of any such person that is not a natural person, I, or attorneys over whom I exercise supervision, have also assumed, insofar as it is relevant to the opinions set forth below, that each such other person is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it was created and is duly qualified and in good standing in each other jurisdiction where the failure to be so qualified could reasonably be expected to have a material effect upon its ability to execute, deliver and/or perform its obligations under any such document or instrument. I, or attorneys over whom I exercise supervision, have further assumed that each document, instrument, agreement, record and certificate reviewed by us for purposes of rendering the opinions expressed below has not been amended by any oral agreement, conduct or course of dealing between the parties thereto.
As to questions of fact material to the opinions expressed herein, I have relied upon certificates and representations of officers of the Loan Parties (including but not limited to those contained in the Credit Agreement and certificates delivered upon the execution and delivery of the Credit Agreement) and of appropriate public officials, without independent verification of such matters except as otherwise described herein.
Whenever my opinions herein with respect to the existence or absence of facts are stated to be to my knowledge or awareness, it is intended to signify that no information has come to my attention or the attention of other counsel working under my direction in connection with the preparation of this opinion letter that would give me or them actual knowledge of the existence or absence of such facts. However, except to the extent expressly set forth herein, neither I nor they have undertaken any independent investigation to determine the existence or absence of such facts, and no inference as to my or their knowledge of the existence or absence of such facts should be assumed.
I am a member of the Bar of the States of New York and Ohio and do not purport to be expert on the laws of any jurisdiction other than the laws of the States of New York and Ohio and the Federal laws of the United States, and, for
C-3
purposes of this opinion only, the corporation law of the States of Delaware, Kentucky and Virginia. My opinions expressed below are limited to the law of the States of New York and Ohio and the Federal law of the United States, and, for purposes of this opinion only, the corporation law of the States of Delaware, Kentucky and Virginia.
Based upon the foregoing and upon such investigation as I have deemed necessary, and subject to the limitations, qualifications and assumptions set forth herein, I am of the following opinion:
| 1. | Each Loan Party (a) is a corporation duly organized, validly existing and in good standing under the laws of its state of incorporation or formation; (b) has the corporate power and authority, and the legal right, to own and operate its property, to lease the property which it operates as lessee and to conduct the business in which it is currently engaged and in which it proposes to be engaged after the date hereof; (c) is duly qualified as a foreign corporation and is in good standing under the laws of each jurisdiction where its ownership, lease or operation of property or the conduct of its business requires such qualification, except any such jurisdiction where the failure to so qualify could not, in the aggregate, reasonably be expected to result in a Material Adverse Change; (d) owns or possesses all material licenses and permits necessary for the operation by it of its business as currently conducted; and (e) is in compliance with all Requirements of Law, except as disclosed in the Disclosure Documents referenced in Section 4.01(f) of the Credit Agreement or to the extent that the failure to comply therewith could not, in the aggregate, reasonably be expected to have a Material Adverse Effect. The term “Requirements of Law” means the laws of the State of Ohio and the laws, rules and regulations of the United States of America (including, without limitation, ERISA and Environmental Laws) and orders of any governmental authority applicable to the Loan Parties. |
| 2. | Each Loan Party has the corporate power and authority, and the legal right, to execute and deliver the Credit Agreement and to perform under, and, solely with respect to the Borrowers, to borrow under, the Credit Agreement. Each Loan Party has taken all necessary corporate action to authorize the execution, delivery and performance of the Credit Agreement and the incurrence of Advances by the Borrowers or the issuance of the guaranty by AEP, as the case may be, on the terms and conditions of the Credit Agreement, and the Credit Agreement has been duly executed and delivered by each of the Loan Parties. |
| 3. | The execution, delivery and performance of the Credit Agreement and the Advances and guaranty made thereunder will not violate any Requirements of Law, any Loan Party’s certificate of incorporation or by-laws, or any material contractual restriction binding on or affecting any Loan Party or any of its properties. |
| 4. | No approval or authorization or other action by, and notice to or filing with, any governmental agency or regulatory body or other third person is required in connection with the due execution and delivery of the Credit Agreement and the performance, validity or enforceability of the Credit Agreement, other than with respect to each Borrower (i) such Approvals, if any, that have been duly issued |
C-4
and are in full force and effect and (ii) such Approvals that may be required to be obtained by such Borrower in connection with the AGR Assumption, APCo Assumption or KPCo Assumption.
| 5. | Except as described in Section 4.01(e) of the Credit Agreement, no action, suit, investigation, litigation, or proceeding, including, without limitation, any Environmental Action, affecting any Loan Party or any of its respective Significant Subsidiaries before any court, government agency or arbitrator is pending or, to my knowledge, threatened, that is reasonably likely to have a Material Adverse Effect. |
| 6. | No Loan Party nor any of their respective Significant Subsidiaries is an “investment company”, or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company”, as such terms are defined in the Investment Company Act of 1940, as amended. Neither the making or assuming of any Advances, as applicable, the application of the proceeds or repayment thereof by the Borrowers, the issuance of the guaranty by AEP nor the consummation of the other transactions contemplated by the Credit Agreement will violate any provision of such Act or any rule, regulation or order of the Securities and Exchange Commission thereunder. |
| 7. | In any action or proceeding arising out of or relating to the Credit Agreement in any court of the State of Ohio or in any Federal court sitting in the State of Ohio, such court would recognize and give effect to the provisions of Section 9.09 of the Credit Agreement, wherein the parties thereto agree that the Credit Agreement shall be governed by, and construed in accordance with, the laws of the State of New York. However, if a court of the State of Ohio or a Federal court sitting in the State of Ohio were to hold that the Credit Agreement is governed by, and to be construed in accordance with, the laws of the State of Ohio, the Credit Agreement would be, under the State of Ohio, the legal, valid and binding obligation of each Loan Party enforceable against each Loan Party in accordance with its terms. |
The opinion set forth above in the last sentence of paragraph 7 above is subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditor’s rights generally and to general principles of equity, including (without limitation) concepts of materiality, reasonableness, good faith and fair dealing (regardless of whether considered in a proceeding in equity or at law.)
I express no opinion as to (i) Section 9.05 of the Credit Agreement; (ii) the effect of the law of any jurisdiction (other than the State of Ohio) wherein any Lender may be located which limits the rates of interest which may be charged or collected by such Lender; and (iii) whether a Federal or state court outside of the States of New York or Ohio would give effect to the choice of New York law provided for in the Credit Agreement.
C-5
This opinion has been rendered solely for your benefit in connection with the Credit Agreement and the transactions contemplated thereby and may not be used, circulated, quoted, relied upon or otherwise referred to by any other Person (other than your respective counsel, auditors and any regulatory agency having jurisdiction over you or as otherwise required pursuant to legal process or other requirements of law) for any other purpose without my prior written consent; provided that, (i) King & Spalding LLP, special counsel for the Administrative Agent, may rely on the opinions expressed in this opinion letter in connection with the opinion to be furnished by them in connection with the transactions contemplated by the Credit Agreement and (ii) any Person that becomes a Lender after the date hereof may rely on the opinions expressed in this opinion letter as though addressed to such Person. I undertake no responsibility to update or supplement this opinion in response to changes in law or future events or circumstances.
Very truly yours,
Thomas G. Berkemeyer
C-6
EXHIBIT D
(to the Term Credit Agreement)
FORM OF OPINION OF COUNSEL
FOR THE ADMINISTRATIVE AGENT
July 17, 2013
To each of the Lenders party to the
Credit Agreement referred to below
and to Wells Fargo Bank, National Association, as Administrative Agent
Ohio Power Company
Ladies and Gentlemen:
We have acted as special New York counsel to Wells Fargo Bank, National Association, individually and as Administrative Agent, in connection with the preparation, execution and delivery of the Term Credit Agreement, dated as of July 17, 2013 (the “Credit Agreement”), among Ohio Power Company (“OPCo”), AEP Generation Resources Inc. (“AGR”), Appalachian Power Company (“APCo”) and Kentucky Power Company (“KPCo”, and collectively with OPCo, AGR and APCo, the “Borrowers” and each a “Borrower”), American Electric Power Company, Inc., as the Guarantor (together with the Borrowers, the “Loan Parties”), the Lenders named therein and Wells Fargo Bank, National Association, as Administrative Agent for the Lenders. This opinion is furnished to you pursuant to Section 3.01(a)(iv) of the Credit Agreement. Unless otherwise indicated, terms defined in the Credit Agreement are used herein as therein defined.
In that connection, we have examined the following documents:
(1) Counterparts of the Credit Agreement, executed by each Loan Party, the Administrative Agent and the Lenders; and
(2) The other documents furnished by the Loan Parties pursuant to Section 3.01 of the Credit Agreement, including (without limitation) the opinion of Jeffrey D. Cross, Deputy General Counsel for American Electric Power Service Corporation, an affiliate of the Loan Parties (the “Opinion”).
In our examination of the documents referred to above, we have assumed the authenticity of all such documents submitted to us as originals, the genuineness of all signatures, the due authority of the parties executing such documents and the conformity to the originals of all such documents submitted to us as copies. We have assumed that you independently evaluated, and are satisfied with, the creditworthiness of the Loan Parties and the business terms reflected in the Credit Agreement. We have also assumed that each of the Lenders and the Administrative Agent
To the extent that our opinions expressed below involve conclusions as to matters governed by law other than the law of the State of New York, we have relied upon the Opinion and have assumed without independent investigation the correctness of the matters set forth therein, our opinions expressed below being subject to the assumptions, qualifications and limitations set forth in the Opinion. We note that we do not represent the Loan Parties and, accordingly, are not privy to the nature or character of their businesses. Accordingly, we have also assumed that the Loan Parties are subject only to statutes, rules, regulations, judgments, orders, and other requirements of law of general applicability to corporations doing business in the State of New York. As to matters of fact, we have relied solely upon the documents we have examined.
Based upon the foregoing, and subject to the qualifications set forth below, we are of the opinion that:
(i) The Credit Agreement is the legal, valid and binding obligation of each Loan Party enforceable against each Loan Party in accordance with its terms.
(ii) While we have not independently considered the matters covered by the Opinion to the extent necessary to enable us to express the conclusions stated therein, the Opinion and the other documents referred to in item (2) above are substantially responsive to the corresponding requirements set forth in Section 3.01 of the Credit Agreement pursuant to which the same have been delivered.
Our opinions are subject to the following qualifications:
(a) Our opinion in paragraph (i) above is subject to the effect of any applicable bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or similar law affecting creditors’ rights generally.
(b) Our opinion in paragraph (i) above is subject to the effect of general principles of equity, including (without limitation) concepts of materiality, reasonableness, good faith and fair dealing (regardless of whether considered in a proceeding in equity or at law). Such principles of equity are of general obligation, and, in applying such principles, a court, among other things, might not allow a contracting party to exercise remedies in respect of a default deemed immaterial, or might decline to order an obligor to perform covenants.
(c) We note further that, in addition to the application of equitable principles described above, courts have imposed an obligation on contracting parties to act reasonably and in good faith in the exercise of their contractual rights and remedies, and may also apply public policy considerations in limiting the right of parties seeking to obtain indemnification under circumstances where the conduct of such parties in the circumstances in question is determined to have constituted negligence.
D-2
(d) We express no opinion herein as to (i) Section 9.05 of the Credit Agreement, (ii) the enforceability of provisions purporting to grant to a party conclusive rights of determination, (iii) the availability of specific performance or other equitable remedies, (iv) the enforceability of rights to indemnity under Federal or state securities laws and (v) the enforceability of waivers by parties of their respective rights and remedies under law.
(e) In connection with any provision of the Credit Agreement whereby the Loan Parties submit to the jurisdiction of any court of competent jurisdiction, we note the limitations of 28 U.S.C. §§ 1331 and 1332 on Federal court jurisdiction.
(f) Our opinions expressed above are limited to the law of the State of New York, and we do not express any opinion herein concerning any other law. Without limiting the generality of the foregoing, we express no opinion as to the effect of the law of any jurisdiction other than the State of New York wherein any Lender may be located or wherein enforcement of the Credit Agreement may be sought that limits the rates of interest legally chargeable or collectible.
This opinion letter speaks only as of the date hereof, and we expressly disclaim any responsibility to advise you of any development or circumstance, including changes of law of fact, that may occur after the date of this opinion letter that might affect the opinions expressed herein. This opinion letter is furnished to the addressees hereof solely in connection with the transactions contemplated by the Credit Agreement, is solely for the benefit of the addressees hereof and may not be relied upon by any other Person or for any other purpose without our prior written consent. Notwithstanding the foregoing, this opinion letter may be relied upon by any Person that becomes a Lender after the date hereof in accordance with the provisions of the Credit Agreement as if this opinion letter were addressed and delivered to such Person on the date hereof. Any such reliance must be actual and reasonable under the circumstances existing at the time such Person becomes a Lender, taking into account any changes in law or facts and any other developments known to or reasonably knowable by such Person at such time.
Very truly yours,
RSL:kty:mgj
D-3
EXHIBIT E-1
FORM OF U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Not Partnerships
For U.S. Federal Income Tax Purposes)
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Term Credit Agreement, dated as of July 17, 2013 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Ohio Power Company, AEP Generation Resources Inc., Appalachian Power Company and Kentucky Power Company (collectively, the “Borrowers”), American Electric Power Company, Inc., as the Guarantor (together with the Borrowers, the “Loan Parties”), the Lenders named therein and Wells Fargo Bank, National Association, as the administrative agent (the “Administrative Agent”) for the Lenders.
Pursuant to the provisions of Section 2.14 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Advance(s) and Commitment (as well as any promissory note(s) evidencing such Advance(s) and Commitment) in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (iii) it is not a ten percent shareholder of any Loan Party within the meaning of Section 871(h)(3)(B) of the Internal Revenue Code and (iv) it is not a controlled foreign corporation related to any Loan Party as described in Section 881(c)(3)(C) of the Internal Revenue Code.
The undersigned has furnished the Administrative Agent and the Borrowers with a certificate of its non-U.S. Person status on IRS Form W-8BEN. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Administrative Agent and the Borrowers, and (2) the undersigned shall have at all times furnished the Administrative Agent and the Borrowers with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
[NAME OF LENDER]
By: _________________
Name:
Title:
Date: ________ __, 20[ ]
FORM OF U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Not Partnerships
For U.S. Federal Income Tax Purposes)
| U.S. TAX COMPLIANCE CERTIFICATE |
| (For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes) |
Reference is hereby made to the Term Credit Agreement, dated as of July 17, 2013 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Ohio Power Company, AEP Generation Resources Inc., Appalachian Power Company and Kentucky Power Company (collectively, the “Borrowers”), American Electric Power Company, Inc., as the Guarantor (together with the Borrowers, the “Loan Parties”), the Lenders named therein and Wells Fargo Bank, National Association, as the administrative agent (the “Administrative Agent”) for the Lenders.
Pursuant to the provisions of Section 2.14 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (iii) it is not a ten percent shareholder of any Loan Party within the meaning of Section 871(h)(3)(B) of the Internal Revenue Code, and (iv) it is not a controlled foreign corporation related to any Loan Party as described in Section 881(c)(3)(C) of the Internal Revenue Code.
The undersigned has furnished its participating Lender with a certificate of its non-U.S. Person status on IRS Form W-8BEN. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender in writing, and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
[NAME OF PARTICIPANT]
By: _________________
Name:
Title:
Date: ________ __, 20[ ]
| EXHIBIT E-3 |
| FORM OF U.S. TAX COMPLIANCE CERTIFICATE |
| (For Foreign Participants That Are Partnerships |
| For U.S. Federal Income Tax Purposes) |
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Term Credit Agreement, dated as of July 17, 2013 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Ohio Power Company, AEP Generation Resources Inc., Appalachian Power Company and Kentucky Power Company (collectively, the “Borrowers”), American Electric Power Company, Inc., as the Guarantor (together with the Borrowers, the “Loan Parties”), the Lenders named therein and Wells Fargo Bank, National Association, as the administrative agent (the “Administrative Agent”) for the Lenders.
Pursuant to the provisions of Section 2.14 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such participation, (iii) with respect such participation, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of any Loan Party within the meaning of Section 871(h)(3)(B) of the Internal Revenue Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to any Loan Party as described in Section 881(c)(3)(C) of the Internal Revenue Code.
The undersigned has furnished its participating Lender with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
[NAME OF PARTICIPANT]
By: __________________
Name:
Title:
Date: ________ __, 20[ ]
E-3-2
EXHIBIT E-4
FORM OF U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Partnerships
For U.S. Federal Income Tax Purposes)
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Term Credit Agreement, dated as of July 17, 2013 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Ohio Power Company, AEP Generation Resources Inc., Appalachian Power Company and Kentucky Power Company (collectively, the “Borrowers”), American Electric Power Company, Inc., as the Guarantor (together with the Borrowers, the “Loan Parties”), the Lenders named therein and Wells Fargo Bank, National Association, as the administrative agent (the “Administrative Agent”) for the Lenders.
Pursuant to the provisions of Section 2.14 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the Advance(s) and Commitment (as well as any promissory note(s) evidencing such Advance(s) and Commitment) in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such Advance(s) and Commitment (as well as any promissory note(s) evidencing such Advance(s) and Commitment), (iii) with respect to the extension of credit pursuant to the Credit Agreement or any other Loan Document, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of any Loan Party within the meaning of Section 871(h)(3)(B) of the Internal Revenue Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to any Loan Party as described in Section 881(c)(3)(C) of the Internal Revenue Code.
The undersigned has furnished the Administrative Agent and the Borrowers with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Administrative Agent and the Borrowers, and (2) the undersigned shall have at all times furnished the Administrative Agent and the Borrowers with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
[NAME OF LENDER]
By: __________________
Name:
Title:
Date: ________ __, 20[ ]
E-4-2
EXHIBIT F
(to the Term Credit Agreement)
FORM OF BORROWER ASSUMPTION AGREEMENT
This Borrower Assumption Agreement (the “Borrower Assumption Agreement”) is dated as of [______ __, 2013] and is entered into by and between [OHIO POWER COMPANY][AEP GENERATION RESOURCES INC.] (the “Assignor”) and [AEP GENERATION RESOURCES INC.][APPALACHIAN POWER COMPANY][KENTUCKY POWER COMPANY] (the “Assignee”). Capitalized terms used but not defined herein shall have the meanings given to them in the Term Credit Agreement, dated as of July 17, 2013 (as amended, restated, amended and restated, supplemented or otherwise modified, the “Credit Agreement”), among Ohio Power Company, AEP Generation Resources Inc., Appalachian Power Company and Kentucky Power Company, as the Borrowers, American Electric Power Company, Inc., as the Guarantor, the Lenders parties thereto and Wells Fargo Bank, National Association, as Administrative Agent.
| 1. | Assumption. For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with Section 2.17 of the Credit Agreement, as of the date first set forth above, (i) all of the Assignor’s rights and obligations in its capacity as a Borrower under the Credit Agreement and each other Loan Document [to the extent related to outstanding Advances in an aggregate principal amount equal to $[_________],]1 and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of the Assignor (in its capacity as a Borrower) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned by the Assignor to the Assignee pursuant to clauses (i) and (ii) above being referred to herein collectively as the “Assigned Interest”). Each such sale and assignment is without recourse to the Assignor and without representation or warranty by the Assignor. Without limiting the generality of the foregoing, the Assignee hereby assumes and agrees punctually to pay, perform and discharge when due all of the Advances constituting a part of the Assigned Interest and the related obligations under the Loan Documents and each agreement made or to be performed by a Borrower under the Loan Documents. |
| 2. | Release of Certain Obligations. [Upon the effectiveness of the AGR Assumption pursuant to Section 2.17 of the Credit Agreement, (i) the Assignor shall no longer be a Borrower under the Credit Agreement or any other Loan Document, nor have any rights or obligations of a Borrower thereunder, and shall be released from any and all |
_________________________
1 To be excluded only for the AGR Assumption
obligations under the Loan Documents, except for those obligations that expressly survive the repayment of all amounts under the Loan Documents or termination of the Commitments, and (ii) the Parent Guaranty will automatically become effective.]2 [Upon the effectiveness of the APCo Assumption pursuant to Section 2.17 of the Credit Agreement, the Assignor will be released from liability for all of the Advances constituting a part of the Assigned Interest, and the Guarantor shall be released from its Guaranteed Obligations with respect to such assumed Advances.]3 [Upon the effectiveness of the KPCo Assumption pursuant to Section 2.17 of the Credit Agreement, the Assignor will be released from liability for all of the Advances constituting a part of the Assigned Interest, and the Guarantor shall be released from its Guaranteed Obligations with respect to such assumed Advances.]4
| 3. | Ratification. The Assignee hereby ratifies and agrees to be bound by, all of the terms and conditions contained in the applicable Loan Documents. |
| 4. | General Provisions. This Borrower Assumption Agreement shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Borrower Assumption Agreement may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Borrower Assumption Agreement by fax shall be effective as delivery of a manually executed counterpart of this Borrower Assumption Agreement. This Borrower Assumption Agreement shall be governed by, and construed in accordance with, the law of the State of New York. |
_________________________
2 To be included only for the AGR Assumption
3 To be included only for the APCo Assumption
4 To be included only for the KPCo Assumption
F-2
The terms set forth in this Borrower Assumption Agreement are hereby agreed to:
ASSIGNOR
[OHIO POWER COMPANY]
[AEP GENERATION RESOURCES INC.]
| By: | _________________________________ |
Title:
ASSIGNEE
[AEP GENERATION RESOURCES INC.]
[APPALACHIAN POWER COMPANY]
[KENTUCKY POWER COMPANY]
| By: | _________________________________ |
Title:
AGREED AND ACKNOWLEDGED:
AMERICAN ELECTRIC POWER COMPANY, INC., as the Guarantor
By: __________________________________
Title:
F-3
Schedule I
Schedule of Initial Lenders
| Lender Name | Commitment |
| Wells Fargo Bank, National Association | $75,000,000.00 |
| The Bank of Tokyo-Mitsubishi UFJ, Ltd. | $75,000,000.00 |
| Citibank, N.A. | $75,000,000.00 |
| JPMorgan Chase Bank, N.A. | $75,000,000.00 |
| KeyBank National Association | $75,000,000.00 |
| The Royal Bank of Scotland Finance (Ireland) | $75,000,000.00 |
| BNP Paribas | $40,000,000.00 |
| Compass Bank | $40,000,000.00 |
| Credit Agricole Corporate and Investment Bank | $40,000,000.00 |
| Fifth Third Bank | $40,000,000.00 |
| Goldman Sachs Bank USA | $40,000,000.00 |
| Mizuho Bank, Ltd. | $40,000,000.00 |
| PNC Bank, National Association | $40,000,000.00 |
| Royal Bank of Canada | $40,000,000.00 |
| Sumitomo Mitsui Banking Corporation | $40,000,000.00 |
| SunTrust Bank | $40,000,000.00 |
| The Bank of New York Mellon | $40,000,000.00 |
| The Bank of Nova Scotia | $40,000,000.00 |
| The Huntington National Bank | $40,000,000.00 |
| U.S. Bank National Association | $30,000,000.00 |
| Total | $1,000,000,000 |
Schedule 4.01(m)
Significant Subsidiaries
Ohio Power Company
None.
AEP Generation Resources Inc.
None.
Appalachian Power Company
None.
Kentucky Power Company
None.
American Electric Power Company, Inc.
Appalachian Power Company
Ohio Power Company
Indiana Michigan Power Company
AEP Utilities, Inc.
Southwestern Electric Power Company