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These excerpts taken from the AEP 10-Q filed Oct 31, 2008. Notice of
Borrowing”) shall be by telephone, confirmed immediately in writing, or
telecopier or telex 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 the Borrower in such manner as the Borrower 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, (i) the Borrower 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
2.11(c), 2.11(f) or 2.15, and (ii) there shall be not more than 20 Borrowings at
any one time outstanding.
(c) Each
Notice of Borrowing shall be irrevocable and binding on the
Borrower. In the case of any Borrowing that the related Notice of
Borrowing specifies is to comprise Eurodollar Rate Advances, the Borrower 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 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 telegram, telex or
telecopier 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 the Borrower 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 the Borrower
severally agree to repay to the Administrative Agent forthwith on demand such
corresponding amount, together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid to the Administrative Agent, at (i) in the case of the Borrower, 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. Letters
of Credit.
(a) The
Borrower may from time to time appoint one or more Lenders (with the consent of
any such Lender, which consent may be withheld in the sole discretion of each
Lender) to act, either directly or through an Affiliate of such Lender, as an LC
Issuing Bank hereunder. Any such appointment and the terms thereof
shall be evidenced in a separate written agreement executed by the Borrower and
the relevant LC Issuing Bank, a copy of which agreement shall be delivered by
the Borrower to the Administrative Agent. The Administrative Agent
shall give prompt notice of any such appointment to the other
Lenders. Upon such appointment, if and for so long as such Lender
shall have any obligation to issue any Letters of Credit hereunder or any Letter
of Credit issued by such Lender shall remain outstanding, such Lender shall be
deemed to be, and shall have all the rights and obligations of, an “LC Issuing
Bank” under this Agreement.
(b) Subject
to the terms and conditions hereof, each Letter of Credit shall be issued (or
the stated maturity thereof extended or terms thereof modified or amended) on
not less than one Business Day’s prior notice thereof by delivery of a Request
for Issuance to the Administrative Agent (which shall promptly distribute copies
thereof to the Lenders) and the relevant LC Issuing Bank for the account of the
Borrower or any of its Subsidiaries; provided that the Borrower shall be the
account party for the purposes of this Agreement and shall have the
reimbursement obligations with respect thereto. Each Letter of Credit
shall be issued in a form acceptable to the LC Issuing Bank. Each
Request for Issuance shall specify (i) the identity of the relevant LC Issuing
Bank, (ii) the date (which shall be a Business Day) of issuance of such Letter
of Credit (or the date of effectiveness of such extension, modification or
amendment) and the stated expiry date thereof (which shall be no later than the
eighth Business Day preceding the Termination Date), (iii) the proposed stated
amount of such Letter of Credit (which amount shall not (A) be less than
$100,000 and (B) be subject to any automatic increase provisions), (iv) the name
and address of the beneficiary of such Letter of Credit and (v) a statement of
drawing conditions applicable to such Letter of Credit, and if such Request for
Issuance relates to an amendment or modification of a Letter of Credit, it shall
be accompanied by the consent of the beneficiary of the Letter of Credit
thereto. Each Request for Issuance shall be irrevocable unless
modified or rescinded by the Borrower not less than two days prior to the
proposed date of issuance (or effectiveness) specified therein. Not
later than 12:00 noon on the proposed date of issuance (or effectiveness)
specified in such Request for Issuance, and upon fulfillment of the applicable
conditions precedent and the other requirements set forth herein, the relevant
LC Issuing Bank shall issue (or extend, amend or modify) such Letter of Credit
and provide notice and a copy thereof to the Administrative Agent, which shall
promptly furnish copies thereof to the Lenders; provided that the LC Issuing
Bank shall not issue or amend any Letter of Credit if such LC Issuing Bank has
received notice from the Administrative Agent that the applicable conditions
precedent have not been satisfied.
(c) No Letter
of Credit shall be requested or issued hereunder if, after the issuance thereof,
(i) the Outstanding Credits would exceed the aggregate Commitments, (ii) the LC
Outstandings would exceed $750,000,000 at any time prior to entry of a final
non-appealable judgment in the BofA Litigation, or (iii) the LC Outstandings
would exceed $600,000,000 at any time after entry of a final non-appealable
judgment in the BofA Litigation.
(d) The
Borrower hereby agrees to pay to the Administrative Agent for the account of
each LC Issuing Bank and, if they shall have purchased participations in the
reimbursement obligations of the Borrower pursuant to subsection (e) below, the
participating Lenders, on demand made by such LC Issuing Bank to the Borrower,
on and after each date on which such LC Issuing Bank shall pay any amount under
any Letter of Credit issued by such LC Issuing Bank, a sum equal to the amount
so paid plus interest on such amount from the date so paid by such LC Issuing
Bank until repayment to such LC Issuing Bank in full at a fluctuating interest
rate per annum equal to the interest rate applicable to Base Rate Advances plus,
if any amount paid by such LC Issuing Bank under a Letter of Credit is not
reimbursed by the Borrower within three Business Days, 2%.
(e) If any LC
Issuing Bank shall not have been reimbursed in full for any payment made by such
LC Issuing Bank under a Letter of Credit issued by such LC Issuing Bank on the
date of such payment, such LC Issuing Bank shall give the Administrative Agent
and each Lender prompt notice thereof (an “ Notice of
Borrowing”) shall be by telephone, confirmed immediately in writing, or
telecopier or telex 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 the Borrower in such manner as the Borrower 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, (i) the Borrower 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
2.11(c), 2.11(f) or 2.15, and (ii) there shall be not more than 20 Borrowings at
any one time outstanding.
(c) Each
Notice of Borrowing shall be irrevocable and binding on the
Borrower. In the case of any Borrowing that the related Notice of
Borrowing specifies is to comprise Eurodollar Rate Advances, the Borrower 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 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 telegram, telex or
telecopier 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 the Borrower 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 the Borrower
severally agree to repay to the Administrative Agent forthwith on demand such
corresponding amount, together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid to the Administrative Agent, at (i) in the case of the Borrower, 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. Letters
of Credit.
(a) The
Borrower may from time to time appoint one or more Lenders (with the consent of
any such Lender, which consent may be withheld in the sole discretion of each
Lender) to act, either directly or through an Affiliate of such Lender, as an LC
Issuing Bank hereunder. Any such appointment and the terms thereof
shall be evidenced in a separate written agreement executed by the Borrower and
the relevant LC Issuing Bank, a copy of which agreement shall be delivered by
the Borrower to the Administrative Agent. The Administrative Agent
shall give prompt notice of any such appointment to the other
Lenders. Upon such appointment, if and for so long as such Lender
shall have any obligation to issue any Letters of Credit hereunder or any Letter
of Credit issued by such Lender shall remain outstanding, such Lender shall be
deemed to be, and shall have all the rights and obligations of, an “LC Issuing
Bank” under this Agreement.
(b) Subject
to the terms and conditions hereof, each Letter of Credit shall be issued (or
the stated maturity thereof extended or terms thereof modified or amended) on
not less than one Business Day’s prior notice thereof by delivery of a Request
for Issuance to the Administrative Agent (which shall promptly distribute copies
thereof to the Lenders) and the relevant LC Issuing Bank for the account of the
Borrower or any of its Subsidiaries; provided that the Borrower shall be the
account party for the purposes of this Agreement and shall have the
reimbursement obligations with respect thereto. Each Letter of Credit
shall be issued in a form acceptable to the LC Issuing Bank. Each
Request for Issuance shall specify (i) the identity of the relevant LC Issuing
Bank, (ii) the date (which shall be a Business Day) of issuance of such Letter
of Credit (or the date of effectiveness of such extension, modification or
amendment) and the stated expiry date thereof (which shall be no later than the
eighth Business Day preceding the Termination Date), (iii) the proposed stated
amount of such Letter of Credit (which amount shall not (A) be less than
$100,000 and (B) be subject to any automatic increase provisions), (iv) the name
and address of the beneficiary of such Letter of Credit and (v) a statement of
drawing conditions applicable to such Letter of Credit, and if such Request for
Issuance relates to an amendment or modification of a Letter of Credit, it shall
be accompanied by the consent of the beneficiary of the Letter of Credit
thereto. Each Request for Issuance shall be irrevocable unless
modified or rescinded by the Borrower not less than two days prior to the
proposed date of issuance (or effectiveness) specified therein. Not
later than 12:00 noon on the proposed date of issuance (or effectiveness)
specified in such Request for Issuance, and upon fulfillment of the applicable
conditions precedent and the other requirements set forth herein, the relevant
LC Issuing Bank shall issue (or extend, amend or modify) such Letter of Credit
and provide notice and a copy thereof to the Administrative Agent, which shall
promptly furnish copies thereof to the Lenders; provided that the LC Issuing
Bank shall not issue or amend any Letter of Credit if such LC Issuing Bank has
received notice from the Administrative Agent that the applicable conditions
precedent have not been satisfied.
(c) No Letter
of Credit shall be requested or issued hereunder if, after the issuance thereof,
(i) the Outstanding Credits would exceed the aggregate Commitments, (ii) the LC
Outstandings would exceed $750,000,000 at any time prior to entry of a final
non-appealable judgment in the BofA Litigation, or (iii) the LC Outstandings
would exceed $600,000,000 at any time after entry of a final non-appealable
judgment in the BofA Litigation.
(d) The
Borrower hereby agrees to pay to the Administrative Agent for the account of
each LC Issuing Bank and, if they shall have purchased participations in the
reimbursement obligations of the Borrower pursuant to subsection (e) below, the
participating Lenders, on demand made by such LC Issuing Bank to the Borrower,
on and after each date on which such LC Issuing Bank shall pay any amount under
any Letter of Credit issued by such LC Issuing Bank, a sum equal to the amount
so paid plus interest on such amount from the date so paid by such LC Issuing
Bank until repayment to such LC Issuing Bank in full at a fluctuating interest
rate per annum equal to the interest rate applicable to Base Rate Advances plus,
if any amount paid by such LC Issuing Bank under a Letter of Credit is not
reimbursed by the Borrower within three Business Days, 2%.
(e) If any LC
Issuing Bank shall not have been reimbursed in full for any payment made by such
LC Issuing Bank under a Letter of Credit issued by such LC Issuing Bank on the
date of such payment, such LC Issuing Bank shall give the Administrative Agent
and each Lender prompt notice thereof (an “ Notice of
Borrowing”) shall be by telephone, confirmed immediately in writing, or
telecopier or telex 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 the applicable Borrower in such manner as the applicable Borrower
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, (i) no Borrower may
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
2.10(c), 2.10(f) or 2.14, and (ii) there shall be not more than 20 Borrowings at
any one time outstanding.
(c) Each
Notice of Borrowing shall be irrevocable and binding on the applicable
Borrower. In the case of any Borrowing that the related Notice of
Borrowing specifies is to comprise Eurodollar Rate Advances, the applicable
Borrower 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 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 telegram, telex or
telecopier 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 the applicable Borrower 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
the applicable Borrower severally agree to repay to the Administrative Agent
forthwith on demand such corresponding amount, together with interest thereon,
for each day from the date such amount is made available to such Borrower until
the date such amount is repaid to the Administrative Agent, at (i) in the case
of such Borrower, 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. Swingline
Advances.
(a) Subject
to the terms and conditions set forth herein, the Swingline Bank agrees to make
Swingline Advances to AEP from time to time on any Business Day during the
period from the date hereof until the Termination Date, in an aggregate
principal amount at any time outstanding that will not result in (i) the
aggregate principal amount of outstanding Swingline Advances exceeding
$65,000,000 or (ii) the Outstanding Credits exceeding the Commitments; provided that the Swingline
Bank shall not be required to make a Swingline Advance to refinance an
outstanding Swingline Advance. Within the limits as hereinabove and
hereinafter provided, AEP may request Swingline Advances hereunder, and repay or
prepay Swingline Advances pursuant to Section 2.12 and utilize the resulting
increase in the Available Commitments for further Swingline Advances in
accordance with the terms hereof. Each Swingline Advance shall be a
Base Rate Advance and shall be in an amount that is an integral multiple of
$500,000 and not less than $1,000,000.
(b) To
request a Swingline Advance, AEP shall notify the Swingline Bank of such request
by telephone (confirmed by telecopy, with a copy to the Administrative Agent),
not later than 1:00 p.m., New York City time, on the day of a proposed Swingline
Advance. Each such notice shall be irrevocable and shall specify the
requested date (which shall be a Business Day) and amount of the requested
Swingline Advance. The Swingline Bank shall make each Swingline
Advance available to AEP by means of a credit to the general deposit account of
AEP with the Swingline Bank by 3:00 p.m., New York City time, on the requested
date of such Swingline Advance.
(c) The
Swingline Bank may by written notice given to the Administrative Agent not later
than 12:00 p.m., New York City time, on any Business Day require the Lenders to
acquire participations on such Business Day in all or a portion of the Swingline
Advances outstanding. Such notice shall specify the aggregate amount
of Swingline Advances in which the Lenders will participate. Promptly
upon receipt of such notice, the Administrative Agent will give notice thereof
to each Lender, specifying in such notice such Lender's Commitment Percentage of
such Swingline Advance or Advances. Each Lender hereby absolutely and
unconditionally agrees, upon receipt of notice as provided above, to pay to the
Administrative Agent, for the account of the Swingline Bank, such Lender’s
Commitment Percentage of such Swingline Advance or Advances. Each
Lender acknowledges and agrees that its obligation to acquire participations in
Swingline Advances pursuant to this subsection is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including the occurrence
and continuance of a Default or reduction or termination of the Commitments, and
that each such payment shall be made without any offset, abatement, withholding
or reduction whatsoever. Each Lender shall comply with its obligation
under this subsection by wire transfer of immediately available funds, in the
same manner as provided in Section 2.02(a) with respect to Advances made by such
Lender (and Section 2.02 shall apply, mutatis mutandis, to the
payment obligations of the Lenders), and the Administrative Agent shall promptly
pay to the Swingline Bank the amounts so received by it from the
Lenders. The Administrative Agent shall notify AEP of any
participations in any Swingline Advance acquired pursuant to this subsection,
and thereafter payments in respect of such Swingline Advance shall be made to
the Administrative Agent and not to the Swingline Bank. Any amounts
received by the Swingline Bank from AEP (or other party on behalf of AEP) in
respect of a Swingline Advance after receipt by the Swingline Bank of the
proceeds of a sale of participations therein shall be promptly remitted to the
Administrative Agent; any such amounts received by the Administrative Agent
shall be promptly remitted by the Administrative Agent to the Lenders that shall
have made their payments pursuant to this subsection (to the extent of each
applicable Lender’s participation) and to the Swingline Bank to the extent of
its retained interest; provided that any such payment so remitted shall be
repaid to the Swingline Bank or to the Administrative Agent, as applicable, if
and to the extent such payment is required to be refunded to AEP for any
reason. The purchase of participations in a Swingline Advance
pursuant to this subsection shall not relieve AEP of any default in the payment
thereof.
SECTION
2.04. Letters
of Credit.
(a) Each of
JPMCB and RBS has agreed to act as an LC Issuing Bank and, in such capacity,
each has agreed to issue Letters of Credit having an aggregate face amount not
greater than $325,000,000 for each such LC Issuing Bank. AEP may also
from time to time appoint one or more other Lenders (with the consent of any
such Lender, which consent may be withheld in the sole discretion of each
Lender) to act, either directly or through an Affiliate of such Lender, as an LC
Issuing Bank hereunder. Any such appointment and the terms thereof
shall be evidenced in a separate written agreement executed by AEP and the
relevant LC Issuing Bank, a copy of which agreement shall be delivered by AEP to
the Administrative Agent. The Administrative Agent shall give prompt
notice of any such appointment to the other Lenders. Upon such
appointment, if and for so long as such Lender shall have any obligation to
issue any Letters of Credit hereunder or any Letter of Credit issued by such
Lender shall remain outstanding, such Lender shall be deemed to be, and shall
have all the rights and obligations of, an “LC Issuing Bank” under this
Agreement.
(b) Subject
to the terms and conditions hereof, each Letter of Credit shall be issued (or
the stated maturity thereof extended or terms thereof modified or amended) on
not less than two Business Days’ prior notice thereof by delivery of (i) a
Request for Issuance to the Administrative Agent (which shall promptly
distribute copies thereof to the Lenders) and the relevant LC Issuing Bank and
(ii) the relevant LC Issuing Bank’s standard form of Letter of Credit
application to such LC Issuing Bank for the account of the applicable Borrower
or any of its Subsidiaries; provided that such Borrower shall be the account
party for the purposes of this Agreement and shall have the reimbursement
obligations with respect thereto. Each Letter of Credit shall be
issued in a form acceptable to the LC Issuing Bank. Each Request for
Issuance shall specify (i) the identity of the relevant LC Issuing Bank, (ii)
the date (which shall be a Business Day) of issuance of such Letter of Credit
(or the date of effectiveness of such extension, modification or amendment) and
the stated expiry date thereof (which shall be not more than one year after the
date of issuance, provided, that if the expiry date
of such Letter of Credit is later than the Termination Date, the applicable
Borrower will (x) five Business Days prior to the Termination Date if such
Borrower’s Applicable Rating Level is 5 or above and (y) 15 days prior to the
Termination Date if such Borrower’s Applicable Rating Level is 6, deposit in an
account designated with the Administrative Agent (the “ Notice of
Borrowing”) shall be by telephone, confirmed immediately in writing, or
telecopier or telex 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 the applicable Borrower in such manner as the applicable Borrower
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, (i) no Borrower may
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
2.10(c), 2.10(f) or 2.14, and (ii) there shall be not more than 20 Borrowings at
any one time outstanding.
(c) Each
Notice of Borrowing shall be irrevocable and binding on the applicable
Borrower. In the case of any Borrowing that the related Notice of
Borrowing specifies is to comprise Eurodollar Rate Advances, the applicable
Borrower 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 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 telegram, telex or
telecopier 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 the applicable Borrower 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
the applicable Borrower severally agree to repay to the Administrative Agent
forthwith on demand such corresponding amount, together with interest thereon,
for each day from the date such amount is made available to such Borrower until
the date such amount is repaid to the Administrative Agent, at (i) in the case
of such Borrower, 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. Swingline
Advances.
(a) Subject
to the terms and conditions set forth herein, the Swingline Bank agrees to make
Swingline Advances to AEP from time to time on any Business Day during the
period from the date hereof until the Revolving Termination Date, in an
aggregate principal amount at any time outstanding that will not result in (i)
the aggregate principal amount of outstanding Swingline Advances exceeding
$35,000,000 or (ii) the Outstanding Credits exceeding the Commitments; provided that the Swingline
Bank shall not be required to make a Swingline Advance to refinance an
outstanding Swingline Advance. Within the limits as hereinabove and
hereinafter provided, AEP may request Swingline Advances hereunder, and repay or
prepay Swingline Advances pursuant to Section 2.12 and utilize the resulting
increase in the Available Commitments for further Swingline Advances in
accordance with the terms hereof. Each Swingline Advance shall be a
Base Rate Advance and shall be in an amount that is an integral multiple of
$500,000 and not less than $1,000,000.
(b) To
request a Swingline Advance, AEP shall notify the Swingline Bank of such request
by telephone (confirmed by telecopy, with a copy to the Administrative Agent),
not later than 1:00 p.m., New York City time, on the day of a proposed Swingline
Advance. Each such notice shall be irrevocable and shall specify the
requested date (which shall be a Business Day) and amount of the requested
Swingline Advance. The Swingline Bank shall make each Swingline
Advance available to AEP by means of a credit to the general deposit account of
AEP with the Swingline Bank by 3:00 p.m., New York City time, on the requested
date of such Swingline Advance.
(c) The
Swingline Bank may by written notice given to the Administrative Agent not later
than 12:00 p.m., New York City time, on any Business Day require the Lenders to
acquire participations on such Business Day in all or a portion of the Swingline
Advances outstanding. Such notice shall specify the aggregate amount
of Swingline Advances in which the Lenders will participate. Promptly
upon receipt of such notice, the Administrative Agent will give notice thereof
to each Lender, specifying in such notice such Lender's Commitment Percentage of
such Swingline Advance or Advances. Each Lender hereby absolutely and
unconditionally agrees, upon receipt of notice as provided above, to pay to the
Administrative Agent, for the account of the Swingline Bank, such Lender’s
Commitment Percentage of such Swingline Advance or Advances. Each
Lender acknowledges and agrees that its obligation to acquire participations in
Swingline Advances pursuant to this subsection is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including the occurrence
and continuance of a Default or reduction or termination of the Commitments, and
that each such payment shall be made without any offset, abatement, withholding
or reduction whatsoever. Each Lender shall comply with its obligation
under this subsection by wire transfer of immediately available funds, in the
same manner as provided in Section 2.02(a) with respect to Advances made by such
Lender (and Section 2.02 shall apply, mutatis mutandis, to the
payment obligations of the Lenders), and the Administrative Agent shall promptly
pay to the Swingline Bank the amounts so received by it from the
Lenders. The Administrative Agent shall notify AEP of any
participations in any Swingline Advance acquired pursuant to this subsection,
and thereafter payments in respect of such Swingline Advance shall be made to
the Administrative Agent and not to the Swingline Bank. Any amounts
received by the Swingline Bank from AEP (or other party on behalf of AEP) in
respect of a Swingline Advance after receipt by the Swingline Bank of the
proceeds of a sale of participations therein shall be promptly remitted to the
Administrative Agent; any such amounts received by the Administrative Agent
shall be promptly remitted by the Administrative Agent to the Lenders that shall
have made their payments pursuant to this subsection (to the extent of each
applicable Lender’s participation) and to the Swingline Bank to the extent of
its retained interest; provided that any such payment so remitted shall be
repaid to the Swingline Bank or to the Administrative Agent, as applicable, if
and to the extent such payment is required to be refunded to AEP for any
reason. The purchase of participations in a Swingline Advance
pursuant to this subsection shall not relieve AEP of any default in the payment
thereof.
SECTION
2.04. Letters
of Credit.
(a) Each of
JPMCB and RBS has agreed to act as an LC Issuing Bank and, in such capacity,
each has agreed to issue Letters of Credit having an aggregate face amount not
greater than $175,000,000 for each such LC Issuing Bank. AEP may also
from time to time appoint one or more other Lenders (with the consent of any
such Lender, which consent may be withheld in the sole discretion of each
Lender) to act, either directly or through an Affiliate of such Lender, as an LC
Issuing Bank hereunder. Any such appointment and the terms thereof
shall be evidenced in a separate written agreement executed by AEP and the
relevant LC Issuing Bank, a copy of which agreement shall be delivered by AEP to
the Administrative Agent. The Administrative Agent shall give prompt
notice of any such appointment to the other Lenders. Upon such
appointment, if and for so long as such Lender shall have any obligation to
issue any Letters of Credit hereunder or any Letter of Credit issued by such
Lender shall remain outstanding, such Lender shall be deemed to be, and shall
have all the rights and obligations of, an “LC Issuing Bank” under this
Agreement.
(b) Subject
to the terms and conditions hereof, each Letter of Credit shall be issued (or
the stated maturity thereof extended or terms thereof modified or amended) on
not less than two Business Days’ prior notice thereof by delivery of (i) a
Request for Issuance to the Administrative Agent (which shall promptly
distribute copies thereof to the Lenders) and the relevant LC Issuing Bank and
(ii) the relevant LC Issuing Bank’s standard form of Letter of Credit
application to such LC Issuing Bank for the account of the applicable Borrower
or any of its Subsidiaries; provided that such Borrower shall be the account
party for the purposes of this Agreement and shall have the reimbursement
obligations with respect thereto. Each Letter of Credit shall be
issued in a form acceptable to the LC Issuing Bank. Each Request for
Issuance shall specify (i) the identity of the relevant LC Issuing Bank, (ii)
the date (which shall be a Business Day) of issuance of such Letter of Credit
(or the date of effectiveness of such extension, modification or amendment) and
the stated expiry date thereof (which shall be not more than one year after the
date of issuance, provided, that if the expiry date
of such Letter of Credit is later than the Revolving Termination Date, the
applicable Borrower will (x) five Business Days prior to the Revolving
Termination Date if such Borrower’s Applicable Rating Level is 5 or above and
(y) 15 days prior to the Revolving Termination Date if such Borrower’s
Applicable Rating Level is 6, deposit in an account designated with the
Administrative Agent (the “ | EXCERPTS ON THIS PAGE:
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