“L/C Credit Extension” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the reinstatement or increase of the amount thereof.
“
L/C Issuer” means
(a) each of the L/C
Issuers identified on
Schedule 1.01(c) in their capacity as an issuer of Letters of Credit hereunder (it being understood that none of the L/C Issuers identified in this
clause
(a) shall be obligated to issue any letters of credit hereunder other than standby letters of credit in Dollars), and
(b) any other Lender reasonably acceptable to the Borrower and the Administrative Agent
(which consent shall not be unreasonably withheld, delayed or conditioned) that agrees to issue Letters of Credit pursuant hereto, in each case in its capacity as an issuer of Letters of Credit hereunder, or any successor issuer of Letters of
Credit hereunder, and in each case, applicable Affiliates;
provided that any Revolving Credit Lender may provide bank guarantees, bond agreements and other such arrangements under this Agreement, in
each case, as agreed in such Revolving Credit Lender’s sole discretion.
“
L/C Obligations” means, as at any date of determination, the
aggregate amount available to be drawn under all outstanding Letters of Credit,
plus the aggregate of all Unreimbursed Amounts, including all L/C Borrowings. For purposes of computing the amount
available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with
Section 1.09. For all purposes of this Agreement, if on any date
of determination a Letter of Credit has expired by its terms but
(a) any amount may still be drawn thereunder by reason of the operation of any rule of law or standard practices to which any Letter of Credit is
subject (such as Rules
3.13 and
3.14 of the ISP and
Article 29 of the UCP) or any express term of the Letter of Credit, such Letter of Credit shall be
deemed to be “outstanding” in the amount so remaining available to be drawn, or
(b) any drawing was made thereunder on or before the last day permitted thereunder and such drawing has not been honored or refused
by the applicable L/C Issuer, such Letter of Credit shall be deemed to be “outstanding” in the amount of such drawing.
“LCT Election” has the meaning specified in Section 1.02(i).
“LCT Public Offer” has the meaning specified in Section 1.02(i).
“LCT Test Date” has the meaning specified in Section 1.02(i).
“Lender” has the meaning specified in the preamble to this Agreement and, as the context requires, includes each L/C Issuer.
“Lender-Related Parties” has the meaning assigned to such term in Section 10.05(b).
“
Lender’s Regarded Owner” has the meaning assigned to such term in
Section 3.01(h)(ii)(A).
“Lending Office” means, as to any Lender, the office or offices or
branch of such Lender or any of its Affiliates described as such in such Lender’s Administrative Questionnaire, or such other office or offices or as a Lender or any of its Affiliates may from time to time notify the Borrower and the
Administrative Agent.
“Letter of Credit” means any letter of credit issued (or, in the case of any Existing Letter of Credit, deemed to be issued), extended or amended hereunder. A Letter of Credit may be a commercial letter of credit or
a standby letter of credit.
“Letter of Credit Application” means an application and agreement for the issuance or amendment of a Letter of Credit in the form from
time to time in use by the applicable L/C Issuer, together with a request for L/C Credit Extension, substantially in the form provided to the Borrower by the Administrative Agent.
“Letter of Credit Sublimit” means an amount equal to $50,000,000. The Letter of Credit Sublimit is part of, and not in addition to, the
Revolving Credit Facility.
“
Letter of Credit Sublimit Expiration Date” means, subject to
Section 2.03(a)(ii)(C), the day that is five (5) Business Days prior to the
scheduled Maturity Date
then in effect for the Revolving Credit Facility or the date of termination of the applicable Revolving Credit Commitments (or, if such day is not a Business Day, the immediately preceding Business Day).
“Lien” means any mortgage, pledge, security interest, encumbrance, lien, hypothecation or charge of any kind (including any conditional sale or other
title retention agreement or lease in the nature thereof); provided that in no event shall Non-Financing Lease Obligations be deemed to constitute a Lien.
“
Limited Condition Transaction” means
(1) any Investment or acquisition (whether by merger, amalgamation, consolidation
or other business combination or the acquisition of Capital Stock or otherwise and which may include, for the avoidance of doubt, a transaction that may constitute a Change of Control) in or of any assets, business or Person,
(2) any redemption, repurchase, defeasance, satisfaction and discharge or repayment of Indebtedness, Disqualified Stock or Preferred Stock requiring irrevocable notice in advance of such redemption, repurchase,
defeasance, satisfaction and discharge or repayment and (3) any asset sale or a disposition.
“LLC Conversion” means the conversion of any Restricted Subsidiary of the Borrower that is a U.S. Subsidiary from a corporation into a limited
liability company.
“
LLC Division” means the statutory division of any limited liability company into two or more limited liability companies pursuant to
Section 18-
217 of the Delaware Limited Liability Company Act or a comparable provision of any other Law.
“Loan” means an extension of credit by a Lender to the Borrower under Article II in the form of a
Term Loan, an Extended Term Loan, a Revolving Credit Loan, an Extended Revolving Commitment or a Specified Refinancing Revolving Loan.
“
Loan Documents” means, collectively,
(i)
this Agreement, (ii) the Notes, (iii) the Guaranty, (iv) the Collateral Documents,
(v) the Intercompany Subordination Agreement, (vi) any intercreditor agreement entered into pursuant to the terms of this
Agreement, (vii) any agreement creating or perfecting rights in Cash Collateral pursuant to the provisions of
Section 2.16 of this Agreement and (viii) any Refinancing Amendment.
“Loan Parties” means, collectively, the Borrower and each Guarantor.
“
LP Division” means the statutory division of any limited partnership into two or more limited partnerships pursuant to
Section
17-
220 of the
Delaware Limited Partnership Act or a comparable provision of any other Law.
“LTM EBITDA” means, as of any date of determination, Consolidated EBITDA of the Borrower measured for the period of the most recent four consecutive
fiscal quarters ending prior to the date of such determination for which consolidated financial statements are available (which may, at the election of the Borrower, be internal financial statements), in each case with such pro forma
adjustments as are consistent with the pro forma adjustments set forth in Section 1.10.
“
Majority Lenders” of any
Tranche
or class of Loans, as applicable, means those Non-Defaulting Lenders of such Tranche or class which would constitute the Required Lenders under, and as defined in, this Agreement if all outstanding Obligations of the other Tranches or classes
under this Agreement were repaid in full and all Commitments with respect thereto were terminated.
“Management Advances” means loans or advances made to, or Guarantees with respect to loans or advances made to, future, present or former employees,
directors, officers, managers, contractors, consultants or advisors (or their respective Controlled Investment Affiliates or Immediate Family Members) of any direct or indirect parent of the Borrower, the Borrower or any Restricted
Subsidiary:
(1)
(a) in respect of travel, entertainment, relocation or moving related expenses, payroll advances and other analogous or similar
expenses or payroll expenses, in each case incurred in the ordinary course of business or consistent with past practice or
(b) for purposes of funding any such person’s purchase of Capital Stock (or similar
obligations) of the Borrower or its Subsidiaries or any direct or indirect parent of the Borrower with (in the case of this
clause (1)(b)) the approval of the Board of Directors of the Borrower;
(2) in respect of relocation or moving related expenses, payroll advances and other analogous or similar expenses or payroll expenses, in each case incurred in
connection with any closing or consolidation of any facility or office; or
(3) not exceeding the greater of
(i) $11,000,000 and (ii)
5.0% of LTM EBITDA in the aggregate
outstanding at the time of incurrence.
“Margin Stock” has the meaning assigned to such term in Regulation U
of the FRB as from time to time in effect.
“
Material Adverse Effect” means
(i) a material adverse effect on the business, assets, property, liabilities (actual or contingent), financial condition or results of operations of the
Restricted Group, taken as a whole, (ii) a material adverse effect on the legal validity or legal enforceability of the rights or remedies of the Agents or the Lenders under the Loan Documents (taken as a whole) or (iii) a material adverse
effect on the ability of the Loan Parties (taken as a whole) to perform their payment obligations under the Loan Documents (taken as a whole).
“Material Indebtedness” has the meaning specified in Section 8.01(e)(A).
“Material Intellectual Property” shall mean intellectual property that is material to the business of the Borrower and its Restricted Subsidiaries,
taken as a whole, as determined by the Borrower in good faith.
“
Material Subsidiary” means any Restricted Subsidiary of the Borrower
constituting, or group of Restricted Subsidiaries of the Borrower in the aggregate constituting (as if such Restricted Subsidiaries constituted a single Subsidiary), a “significant subsidiary” in accordance with Rule
1-
02 under Regulation S-X.
“
Maturity Date” means:
(a) with
respect to the Revolving Credit Facility, the earlier of
(i) the fifth anniversary of the Closing Date and (ii) the date of termination in whole of the Revolving Credit Commitments pursuant to
Sections 2.06(a) or
8.02; and
(b) with respect to the Initial Term Loans, the earliest of
(i) the fifth anniversary of the Closing
Date, (ii) the date of termination in whole of the Initial Term Commitments and (iii) the date that the Initial Term Loans are declared due and payable pursuant to
Section 8.02;
provided that the reference to Maturity Date with respect to
(i) Term Loans and Revolving Credit Commitments that are the subject of Extension pursuant to
Section 2.19 and (ii) Term Loans and Revolving Credit Commitments that are incurred pursuant to
Sections 2.14 or
2.18 shall, in each case, be the
final maturity date as specified in the loan modification documentation, incremental documentation, or specified refinancing documentation, as applicable thereto.
“
Maximum Leverage Requirement” means, with respect to any request made in reliance on this definition for an increase in any Revolving Tranche or any Term Loan Tranche, for a New Revolving Facility, for a New Term Facility
or for the incurrence of Incremental Equivalent Debt and with respect to any
Incurrence of Ratio Debt the requirement that, on a pro forma basis in a manner consistent with
Section 1.10, after giving effect to the incurrence of any such increase, such new Facility, such Incremental Equivalent Debt, such Ratio Debt (and, in each case, after giving effect to any
acquisition or other transaction referred to in
Section 1.10 consummated concurrently therewith and all other appropriate pro forma adjustment events and calculated as if any increase in any
Revolving Tranche or any New Revolving Facility were fully drawn on the effective date thereof but without netting any portion of the cash proceeds of such Indebtedness then being incurred and without giving effect to any interest expense
attributable thereto):
(a) for any such Indebtedness that is secured by a Lien on the Collateral on a
pari passu basis with the Initial Term Loans, the Consolidated First
Lien Net Leverage Ratio on a pro forma basis does not exceed, at the Borrower’s option,
(i)
1.50 to
1.00 or (ii) in the case of Acquisition
Indebtedness, the Consolidated First Lien Net Leverage Ratio immediately prior to the incurrence of such Indebtedness; or
(b) for any such Indebtedness that is secured by a Lien on the Collateral on a junior basis to the Initial Term Loans, that is unsecured or that is secured by Lien on assets that do not
constitute Collateral, the Consolidated Total Net Leverage Ratio on a pro forma basis does not exceed, at the Borrower’s option,
(i)
2.00 to
1.00 or
(ii) in the case of Acquisition Indebtedness, the Consolidated Total Net Leverage Ratio immediately prior to the incurrence of such Indebtedness.
“Maximum Rate” has the meaning specified in Section 10.10.
“MDU Resources” means MDU Resources Group, Inc., a Delaware corporation.
“Minimum Extension Condition” has the meaning specified in Section 2.19(g).
“Minimum Tender Condition” has the meaning specified in Section 2.20(b).
“Moody’s” means Moody’s Investors Service, Inc. or any successor to the rating agency business thereof.
“Multiemployer Plan” means a “multiemployer plan” as defined in
Section 4001(a)(3) of ERISA, to which any Loan Party or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years has made or been obligated to make contributions, or has any liability or
obligation, whether fixed or contingent.
“
Natural Person” means
(a) any natural
person or
(b) a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of a natural person.
“Net Cash Proceeds” means:
(a) with respect to any Asset Disposition or any Casualty Event (other than an Excluded Casualty Event), the excess, if any, of cash proceeds received (including any cash proceeds
received from the sale or other disposition of any Designated Non-Cash Consideration received in any Asset Disposition, but only as and when received, but excluding any other consideration received in the form of assumption by the acquiring
Person of Indebtedness or other obligations relating to the properties or assets that are the subject of such Asset Disposition, or received in any other non-cash form), in each case net of:
(1) all legal, accounting, consulting, investment banking, survey costs, title and recording expenses, title insurance premiums, payments made in order to obtain a
necessary consent or required by applicable law, brokerage and sales commissions, relocation expenses, commissions, premiums (including tender premiums), defeasance costs, underwriting discounts, fees, costs and expenses (including original
issue discount, upfront fees or similar fees) in connection with such transaction;
(2) all Taxes paid, reasonably estimated to be payable, Tax reserves set aside or payable or accrued as a liability under GAAP (including, for the avoidance of
doubt, any income, withholding and other Taxes payable as a result of the distribution or deemed distribution of such proceeds to any Restricted Group Member, transfer Taxes, deed or mortgage recording Taxes and Taxes that would be payable in
connection with any repatriation of such proceeds), as a consequence of such transaction, including distributions and payments for Permitted Tax Amounts made as a result of or in connection with such transaction or any transactions occurring
or deemed to occur to effectuate a payment under this Agreement;
(3) all payments made on any Indebtedness which is
(x) secured by any assets subject to such transaction, in accordance with the terms
of any Lien upon such assets;
provided that such Lien existed, or was required to be granted pursuant to the terms of such Indebtedness as in effect, prior to the consummation of such transaction,
(y) is owed by a
non-Guarantor or
(z) which is required by applicable law be repaid out of the proceeds from such transaction;
(4) all distributions and other payments required to be made to non-controlling interest or minority interest holders (other than any direct or indirect parent of
the Borrower, the Borrower or any of its Subsidiaries) in Subsidiaries or joint ventures as a result of such transaction;
(5) all costs associated with unwinding any related
Swap Obligations in connection with such transaction;
(6) the deduction of appropriate amounts required to be provided by the seller as a reserve, in accordance with GAAP, against any liabilities associated with the
assets disposed of in such transaction and retained by the Borrower or any Restricted Subsidiary after such transaction, including pension and other post-employment benefit liabilities and liabilities related to environmental matters or
against any indemnification obligations associated with such transaction;
(7) any portion of the purchase price from such transaction placed in escrow, whether for the satisfaction of any indemnification obligations in respect of such
transaction, as a reserve for adjustments to the purchase price associated with any such transaction or otherwise in connection with such transaction;
(8) the amount of any liabilities (other than Indebtedness in respect of this Agreement) directly associated with such asset being sold and retained by the Borrower
or any of its Restricted Subsidiaries; and
(9) the amount of any Restricted Payment made with the proceeds of any such transaction pursuant to Section 7.05(b)(12)(b).
(b) with respect to the incurrence or issuance of any Indebtedness by any Restricted Group Member, the excess, if any, of
(i) the sum of the cash
received in connection with such incurrence or issuance and in connection with unwinding any related Swap Contract in connection therewith over (ii) the investment banking fees, underwriting discounts and commissions, premiums, expenses,
accrued interest and fees related thereto, Taxes paid, reasonably estimated to be payable, Tax reserves set aside or payable or accrued as a liability under GAAP (including, for the avoidance of doubt, any income, withholding and other Taxes
payable as a result of the distribution of such proceeds to any Restricted Group Member and including distributions and payments for Permitted Tax Amounts made as a result of or in connection with the issuance of such Indebtedness) and other
out-of-pocket expenses and other customary expenses, incurred by any Restricted Group Member in connection with such incurrence or issuance and any costs associated with unwinding any related Swap Contract in connection therewith and, in the
case of Indebtedness of any Non-U.S. Subsidiary, deductions in respect of withholding Taxes that are or would otherwise be payable in cash if such funds were repatriated to the United States; and
(c) with respect to any issuance of Capital Stock by any Person, the excess, if any, of
(A) the sum of the cash received in connection with such
issuance over
(B) the investment banking fees, underwriting discounts and commissions, premiums, expenses and fees related thereto and other out‑of‑pocket expenses and other customary expenses, incurred by such
Person in connection with such issuance;
provided that, in the case of any issuance of Capital Stock by any direct or indirect parent of the Borrower, the amount thereof shall be limited to the
amount of cash from such issuance of Capital Stock contributed to the capital of the Borrower.
“New Loan Commitments” has the meaning specified in Section 2.14(a).
“New Revolving Commitment” has the meaning specified in Section 2.14(a).
“New Revolving Facility” has the meaning specified in Section 2.14(a).
“New Revolving Loan” has the meaning specified in Section 2.14(a).
“New Term Commitment” has the meaning specified in Section 2.14(a).
“New Term Facility” has the meaning specified in Section 2.14(a).
“New Term Loan” has the meaning specified in Section 2.14(a).
“Non-Consenting Lender” has the meaning specified in Section 3.08(c).
“Non-Defaulting Lender” means any Lender other than a Defaulting
Lender.
“Non-Extending Lender” has the meaning specified in Section 2.19(e).
“Non-Financing Lease Obligation” means a lease obligation that is not required to be accounted for as a financing lease in accordance with GAAP. For
the avoidance of doubt, a straight-line or operating lease shall be considered a Non-Financing Lease Obligation.
“
Non-Loan Party Sublimit” means an aggregate principal amount equal to, when taken together with the aggregate outstanding principal amount of all
other
Indebtedness Incurred in reliance on this definition, the greater of
(a) $99,000,000 and
(b)
45.0%
of LTM EBITDA.
“Non-Loan Party Subsidiary” means any Restricted Subsidiary of the Borrower that is not a Guarantor.
“Non-U.S. Lender” means a lender that is not a U.S. Person.
“Non-U.S. Subsidiary” means any direct or indirect Subsidiary of the
Borrower that is not a U.S. Subsidiary.
“Note” means a Term Note or a Revolving Credit Note, as the context may require.
“
NPL” means the
National Priorities List under
CERCLA.
“NYFRB” means the Federal Reserve Bank of New York.
“NYFRB’s Website” means the website of the NYFRB at http://www.newyorkfed.org, or any successor source.
“
NYFRB Rate” means, for any day, the greater of
(a) the Federal Funds Effective Rate in effect on such day and
(b) the Overnight Bank Funding Rate in effect on such day (or for any day that is not a Business Day, for the immediately preceding Business Day);
provided that if none of
such rates are published for any day that is a Business Day, the term “NYFRB Rate” means the rate for a federal funds transaction quoted at 11:00 a.m. (New York City time) on such day received by the Administrative Agent from a federal funds
broker of recognized standing selected by it;
provided, further, that if any of the aforesaid rates as so determined shall be less than zero, such rate shall
be deemed to be zero for all purposes of this Agreement.
“
Obligations” means all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document or
otherwise with respect to any Loan, Letter of Credit, and obligations of any Loan Party or any Restricted Subsidiary arising under any Secured Cash Management Agreement or Secured Hedge Agreement, in each case whether direct or indirect
(including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Loan Party of any proceeding under
any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding;
provided that
(a)
obligations of any Loan Party or any Restricted Subsidiary under any Secured Cash Management Agreement or Secured Hedge Agreement shall be secured and guaranteed pursuant to the Collateral Documents only to the extent that, and for so long
as, the other Obligations are so secured and guaranteed,
(b) any release of Collateral or Guarantors effected in the manner permitted by this Agreement shall not require the consent of holders of obligations
under Secured Hedge Agreements or Secured Cash Management Agreements and
(c) the Obligations with respect to any Guarantor shall not include Excluded Swap Obligations of such Guarantor. Without limiting the
generality of the foregoing, the Obligations of the Loan Parties under the Loan Documents include
(a) the obligation to pay principal, interest, Letter of Credit commissions, charges, expenses, fees, indemnities
and other amounts payable by any Loan Party under any Loan Document and
(b) the obligation of any Loan Party to reimburse any amount in respect of any of the foregoing pursuant to
Section 10.04.
“OFAC” has the meaning specified in the definition of “Sanctions Laws and Regulations”.
“OID” means original issue discount.
“
Organization Documents” means
(a) with
respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction),
(b) with respect to any
limited liability company, the certificate or articles of formation or organization and operating or limited liability company agreement (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and
(c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture, trust or other applicable agreement of formation or organization and any agreement,
instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or
articles of formation or organization of such entity.
“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 solely
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 Letter of Credit, or sold or assigned an interest in any Loan, Loan Document or Letter of Credit).
“Other LC” has the meaning specified in Section 2.03(c)(v).
“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 that are imposed with respect to an assignment (other than an assignment made pursuant to Section 3.08).
“
Outstanding Amount” means:
(a) with
respect to the Term Loans, Revolving Credit Loans, Specified Refinancing Term Loans and Specified Refinancing Revolving Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any Borrowings and
prepayments or repayments of the Term Loans, Revolving Credit Loans (including any refinancing of outstanding unpaid drawings under Letters of Credit or L/C Credit Extensions as a Revolving Credit Borrowing), Specified Refinancing Term Loans
and Specified Refinancing Revolving Loans, as applicable, occurring on such date; and
(b) with respect to any L/C Obligations on any date, the amount of such L/C Obligations on such date after giving effect to
any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements of outstanding unpaid drawings under any Letters of Credit
(including any refinancing of outstanding unpaid drawings under Letters of Credit or L/C Credit Extensions as a Revolving Credit Borrowing) or any reductions in the maximum amount available for drawing under Letters of Credit taking effect on
such date.
“Overnight Bank Funding Rate” means, for any day, the rate comprised of both overnight federal funds and overnight eurodollar transactions denominated
in Dollars by U.S.-managed banking offices of depository institutions, as such composite rate shall be determined by the NYFRB as set forth on the NYFRB’s Website from time to time, and published on the next succeeding Business Day by the
NYFRB as an overnight bank funding rate (from and after such date as the NYFRB shall commence to publish such composite rate).
“
Parent Entity” means any direct or indirect parent of the Borrower which holds directly or indirectly
100.0% of the
equity interests of the Borrower and which does not hold Capital Stock in any other Person (except for any other Parent Entity).
“Parent Entity Expenses” means:
(1) fees, costs and expenses (including all legal, accounting and other professional fees, costs and expenses) incurred or paid by any direct or indirect parent of
the Borrower in connection with reporting obligations under or otherwise incurred or paid in connection with compliance with applicable laws, rules or regulations of any governmental, regulatory or self-regulatory body or stock exchange, this
Agreement or any other agreement or instrument relating to the Loans, the Guarantees or any other Indebtedness of
the Borrower or any Restricted Subsidiary, including in respect of any reports
filed or delivered with respect to the Securities Act, Exchange Act or the respective rules and regulations promulgated thereunder;
(2) customary salary, bonus, severance, indemnity, insurance (including premiums therefor) and other benefits payable to any employee, director, officer, manager,
contractor, consultant or advisor of any direct or indirect parent of the Borrower or other Persons under its articles, charter, by-laws, partnership agreement or other organizational documents or pursuant to written agreements with any such
Person to the extent relating to the Borrower and its Subsidiaries;
(3)
(x) general corporate operating and overhead fees, costs and expenses, (including all legal, accounting and other professional
fees, costs and expenses, and director and officer insurance (including premiums therefor)) and, following the first public offering of the Capital Stock of any direct or indirect parent of the Borrower, listing fees and other costs and
expenses attributable to being a publicly traded company of any direct or indirect parent of the Borrower and
(y) other operational expenses of any direct or indirect parent of the Borrower related to the
ownership or operation of the business of the Borrower or any of the Restricted Subsidiaries;
(4) expenses incurred by any direct or indirect parent of the Borrower in connection with
(i) any offering, sale, conversion or
exchange of Capital Stock or Indebtedness (whether or not successful) and (ii) any related compensation paid to employees, directors, officers, managers, contractors, consultants or advisors (or their respective Controlled Investment
Affiliates or Immediate Family Members) of such direct or indirect parent;
(5) amounts payable pursuant to any management services or similar agreements or the management services provisions in an investor rights agreement or other
equityholders’ agreement (including any amendment thereto or replacement thereof so long as any such amendment or replacement is not materially disadvantageous in the reasonable determination of the Borrower to the Lenders when taken as a
whole, as compared to the management services or similar agreements as in effect immediately prior to such amendment or replacement), solely to the extent such amounts are not paid directly by the Borrower or its Subsidiaries; and
(6) amounts to finance Investments that would otherwise be permitted to be made pursuant to
Section 7.05 if made by the
Borrower or a Restricted Subsidiary;
provided that
(A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment,
(B) such direct or indirect parent shall, immediately following the closing thereof, cause
(1) all property acquired (whether assets or Capital Stock) to be contributed to the capital
of the Borrower or one of its Restricted Subsidiaries or
(2) the merger, consolidation or amalgamation of the Person formed or acquired by or merged or consolidated with the Borrower or one of its Restricted
Subsidiaries (to the extent not prohibited by
Section 7.03) in order to consummate such Investment,
(C) such direct or indirect parent and its Affiliates (other
than the Borrower or a Restricted Subsidiary) receives no consideration or other payment in connection with such transaction except to the extent the Borrower or a Restricted Subsidiary could have given such consideration or made such payment
in compliance with this Agreement and such consideration or other payment is included as a Restricted Payment under this Agreement,
(D) any property received by the Borrower shall not increase amounts available
for Restricted Payments pursuant to
clause (1)(b) of
Section 7.05(a) and
(E) such Investment shall be deemed to be made by the Borrower or such Restricted
Subsidiary pursuant to a provision of
Section 7.05 or pursuant to the definition of “Permitted Investment”.
“
Parent Holding Company” means any direct or indirect parent entity of the Borrower which holds directly or indirectly
100.0% of the Equity Interests of the Borrower and which does not hold
Capital Stock in any other Person (except for any other Parent Holding Company).
“Participant” has the meaning specified in Section 10.07(d).
“
Participant Register” has the meaning specified in
Section 10.07(m).
“Participating Member State” means each state as described in any EMU Legislation.
“PATRIOT Act” has the meaning specified in Section 10.22.
“
Payment Block” means any of the circumstances described in
Sections 2.05(b)(vii) and
(viii).
“Payment Recipient” has the meaning specified in Section 9.19(a).
“PBGC” means the Pension Benefit Guaranty Corporation.
“
Pension Funding Rules” means the rules of the Code and ERISA regarding minimum required contributions (including any installment payment thereof) to Plans and as set forth in
Section 412 and
430 of the Code and
Sections 302 and
303 of ERISA.
“Perfection Certificate” shall mean the Perfection Certificate, dated
as of the Closing Date, executed and delivered by the Loan Parties and each other Perfection Certificate or any supplement thereto delivered by any of the Loan Parties pursuant to the terms hereof.
“Perfection Exceptions” means that no Loan Party shall be required to:
(i) enter into control agreements with respect to, or otherwise perfect any security interest by “control” (or similar arrangements) over, commodities accounts,
securities accounts, deposit accounts, futures accounts, other bank accounts, cash and cash equivalents and accounts related to the clearing, payment processing and similar operations of the Restricted Group,
(ii) perfect the security interest in the following other than by the filing of a UCC financing statement:
(1) letter-of-credit
rights (as defined in the UCC),
(2) commercial tort claims (as defined in the UCC),
(3)
Fixtures (as
defined in the UCC), except to the extent that the same are
Equipment (as defined in the UCC) and (4)
Assigned
Agreements (as defined in the Security Agreement),
(iii) send notices to account debtors or other contractual third-parties unless an Event of Default has occurred,
(iv) enter into, make or obtain any
(x) security documents to be governed by the law of any jurisdiction outside of the United States
or
(y) other non-U.S. law filings or non-U.S. consents or corporate or organizational action in respect of security, including with respect to any share pledges and any intellectual property registered in any
non-U.S. jurisdiction;
provided,
however, that the foregoing in this
clause (iv) shall not affect the requirements to deliver certificates and related
stock powers in respect of Equity Interest of Non-U.S. Subsidiaries constituting Collateral that would otherwise be required to be delivered pursuant to the Collateral Documents,
(v) deliver landlord waivers, estoppels or collateral access letters, or
(vi) enter into any source code escrow arrangement or be obligated to register intellectual property.
“Permitted Asset Swap” means the concurrent purchase and sale or exchange of assets used or useful in a Similar Business or a combination of such assets and cash or Cash Equivalents between the Borrower or any of its
Restricted Subsidiaries and another Person; provided that any cash or Cash Equivalents received in excess of the value of any cash or Cash Equivalents sold or exchanged must be applied in accordance
with Section 7.04.
“
Permitted Call Spread Swap Agreements” shall mean
(a) a Swap Contract pursuant to which a Person acquires a call or a
capped call option requiring the counterparty thereto to deliver to such Person shares of common stock of Person (or other Equity Interests, securities, property or assets following a merger event or other event or circumstance resulting in
the common stock of such Person generally being converted into, or exchanged for, other Equity Interests, securities, property or assets), the cash value thereof or a combination thereof from time to time upon exercise of such option and
(b) if entered into by such Person in connection with any Swap Contract described in
clause (a) above, a Swap Contract pursuant to which such Person issues to the counterparty thereto warrants or other
rights to acquire common stock of such Person (or other Equity Interests, securities, property or assets following a merger event or other event or circumstance resulting in the common stock of such Person generally being converted into, or
exchanged for, other Equity Interests, securities, property or assets), whether such warrant or other right is settled in shares (or such other Equity Interests, securities, property or assets), cash or a combination thereof, in each case
entered into by such Person in connection with the issuance of Permitted Convertible Notes;
provided that the terms, conditions and covenants of each such Swap Contract shall be customary or more
favorable to than customary for Swap Contracts of such type (as determined by the Borrower in good faith).
“
Permitted Convertible Notes” shall mean any notes issued by the Borrower or any direct or indirect parent of the Borrower that are convertible into
common stock of the Borrower or any direct or indirect parent of the Borrower (or other Equity Interests, securities, property or assets following a merger event or other event or circumstance resulting in the common stock of the Borrower or
any direct or indirect parent of the Borrower generally being converted into, or exchanged for, other Equity Interests, securities, property or assets), cash (the amount of such cash being determined by reference to the price of such common
stock or such other Equity Interests, securities, property or assets), or any combination of any of the foregoing, and cash in lieu of fractional shares of common stock;
provided that the issuance of
such notes is permitted under
Section 7.01.
“Permitted Debt” has the meaning specified in Section 7.01(b).
“Permitted Debt Exchange” has the meaning specified in Section 2.20(a).
“
Permitted Debt Exchange Notes” means Indebtedness in the form of unsecured, first lien, second lien or other junior
lien notes;
provided that such Indebtedness:
(i) does not mature or have
scheduled amortization payments of principal and is not subject to mandatory redemption, repurchase,
prepayment or sinking fund obligations (except
(w) customary offers or obligations to repurchase, repay or redeem upon a change of control, asset sale, casualty or condemnation event or initial public offering,
(x) maturity payments and customary mandatory prepayments for Extendable Bridge Loans/Interim Debt and Indebtedness incurred pursuant to the Inside Maturity Basket which may have a maturity date earlier than the
Latest Maturity Date for any then outstanding Term Loans,
(y) special mandatory redemptions in connection with customary escrow arrangements and customary acceleration rights after an event of default or
(z) AHYDO Catch-up Payments), in each case prior to the Latest Maturity Date for the applicable then outstanding Term Loans in respect of which such Indebtedness is being exchanged, and
(ii)
shall comply with the Incremental Debt Lien/Guarantee Parameters.
“Permitted Debt Exchange Offer” has the meaning specified in Section 2.20(a).
“
Permitted Intercompany Activities” means any transactions
(A) between or among the Borrower and its Restricted
Subsidiaries that are entered into in the ordinary course of business or consistent with past practice of the Borrower and its Restricted Subsidiaries and, in the reasonable determination of the Borrower are necessary or advisable in
connection with the ownership or operation of the business of the Borrower and its Restricted Subsidiaries, including
(i) payroll, cash management, purchasing, insurance and hedging arrangements; (ii) management,
technology and licensing arrangements; and (iii) customary loyalty and rewards programs; and
(B) between or among the Borrower, its Restricted Subsidiaries and any Captive Insurance Subsidiary.
“Permitted Investments” means (in each case, by the Borrower or any of
the Restricted Subsidiaries):
(1) Investments in
(a) a Restricted Subsidiary (including the Capital Stock of, or guarantees of obligations of, a Restricted
Subsidiary) or the Borrower or
(b) a Person (including the Capital Stock of any such Person) that will, upon the making of such Investment, become a Restricted Subsidiary;
provided
that the aggregate amount of Investments made by any Loan Party in any Non-Loan Party Subsidiary pursuant to this
clause (1) and
clause (2)(a) below then outstanding shall not exceed the
greater of
(i) $165,000,000 and (ii)
75.0% of LTM EBITDA;
(2)
(a) Investments in another Person if such Person is engaged, directly or through entities that will be Restricted Subsidiaries, in
any Similar Business and as a result of such Investment such other Person, in one transaction or a series of transactions, is merged, amalgamated, consolidated or otherwise combined with or into, or transfers or conveys all or substantially
all its assets (or such division, business unit, product line or business) to, or is liquidated into, the Borrower or a Restricted Subsidiary;
provided that the aggregate amount of Investments made by
any Loan Party in any Non-Loan Party Subsidiary pursuant to this
clause (2)(a) and
clause (1) above then outstanding shall not exceed the greater of
(i)
$165,000,000 and (ii)
75.0% of LTM EBITDA and
(b) any Investment held by such Person;
provided in the case of this
clause (b), that
such Investment was not acquired by such Person in contemplation of such acquisition, merger, amalgamation, consolidation, combination, transfer or conveyance;
(3) Investments in cash, Cash Equivalents or Investment Grade Securities;
(4) Investments in receivables owing to the Borrower or any Restricted Subsidiary created or acquired in the ordinary course of business or consistent with past
practice;
(5) Investments in payroll, travel, entertainment, relocation, moving related and similar advances that are made in the ordinary course of business or consistent
with past practice;
(6) Management Advances;
(7) Investments (including debt obligations and equity interests)
(a) received in settlement, compromise or resolution of debts
created in the ordinary course of business or consistent with past practice,
(b) in exchange for any other Investment or accounts receivable, endorsements for collection or deposit held by the Borrower or any
such Restricted Subsidiary,
(c) as a result of foreclosure, perfection or enforcement of any Lien,
(d) in satisfaction of judgments or
(e) pursuant to
any plan of reorganization or similar arrangement including upon the bankruptcy or insolvency of a debtor or litigation, arbitration or other disputes or otherwise with respect to any secured Investment or other transfer of title with respect
to any secured Investment in default;
(8) Investments made as a result of the receipt of promissory notes or other non-cash consideration (including earn-outs) from a sale or other disposition of
property or assets, including an Asset Disposition;
(9) Investments
(a) existing or pursuant to binding commitments, agreements or arrangements in effect on the Closing Date and, to the
extent the outstanding principal amount thereof is in excess of $10,000,000, listed on
Schedule 1.01(e) and any modification, replacement, renewal, reinvestment or extension thereof;
provided
that the amount of any such Investment may not be increased pursuant to this
clause (9) except
(i) as required by the terms of such Investment or binding commitment as
in existence on the Closing Date (including in respect of any unused commitment),
plus any accrued but unpaid interest (including any accretion of interest, original issue discount or the issuance of
pay-in-kind securities) and premium payable by the terms of such Indebtedness thereon and fees and expenses associated therewith as of the Closing Date or (ii) as otherwise permitted under this Agreement and
(b)
made after the Closing Date in joint ventures of the Borrower or any of its Restricted Subsidiaries existing on the Closing Date;
(10) Swap Obligations, which transactions or obligations are not prohibited by Section 7.01;
(11) pledges or deposits with respect to leases or utilities provided to third parties in the ordinary course of business or Liens otherwise described in the
definition of “Permitted Liens” or made in connection with Liens permitted under Section 7.02;
(12) any Investment to the extent made using Capital Stock of the Borrower (other than Disqualified Stock) or Capital Stock of any direct or indirect parent of the
Borrower or any Unrestricted Subsidiary as consideration;
(13) any transaction to the extent constituting an Investment that is permitted by and made in accordance with the provisions of
Section 6.18(b)
(except those described in
clauses (1),
(4),
(8) and
(9) thereof);
(14) Investments consisting of
(i) purchases or other acquisitions of inventory, supplies, materials, equipment and similar assets or
(ii) licenses, sublicenses, cross-licenses, leases, subleases, assignments, contributions or other Investments of intellectual property or other intangibles or services in the ordinary course of business pursuant to any joint development,
joint venture or marketing arrangements with other Persons or any Intercompany License Agreement and any other Investments made in connection therewith;
(15)
(i) Guarantees of Indebtedness not prohibited by
Section 7.01 and (other than
with respect to Indebtedness) guarantees, keepwells and similar arrangements in the ordinary course of business or consistent with past practice and (ii) performance guarantees and Contingent Obligations with respect to obligations that are
not prohibited by this Agreement;
(16) Investments consisting of earnest money deposits required in connection with a purchase agreement, or letter of intent, or other acquisitions to the extent not
otherwise prohibited by this Agreement;
(17) Investments of a Restricted Subsidiary acquired after the Closing Date or of an entity merged or amalgamated into or consolidated with the Borrower or merged or
amalgamated into or consolidated with a Restricted Subsidiary after the Closing Date to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger, amalgamation or consolidation and were
in existence on the date of such acquisition, merger, amalgamation or consolidation;
(18) [reserved];
(19) contributions to a “rabbi” trust for the benefit of any employee, director, officer, manager, contractor, consultant, advisor or other service providers or other
grantor trust subject to claims of creditors in the case of a bankruptcy of the Borrower, and Investments relating to non‑qualified deferred payment plans in the ordinary course of business or consistent with past practice;
(20) Investments in joint ventures and similar entities and Unrestricted Subsidiaries having an aggregate fair market value, taken together with all other Investments
made pursuant to this
clause (20) and all Investments made pursuant to
clause (22), in each case, that are at that time outstanding, not to exceed the
greater of
(i) $165,000,000 and (ii)
75.0% of LTM EBITDA (with the fair market value of each Investment being measured at the time made and without giving effect to subsequent
changes in value),
plus the amount of any returns (including dividends, payments, interest, distributions, returns of principal, profits on sale, repayments, income and similar amounts) in respect of
such Investments (without duplication for purposes of
Section 7.05 of any amounts applied pursuant to
clause (y) of
Section 7.05(a) with the fair market value of each
Investment being measured at the time made and without giving effect to subsequent changes in value;
provided,
however, that if any Investment pursuant to this
clause (20) is made in any Person that is not the Borrower or a Restricted Subsidiary at the date of the making of such Investment and such Person becomes the Borrower or a Restricted Subsidiary
after such date, such Investment may, at the option of the Borrower, thereafter be deemed to have been made pursuant to
clauses (1) or
(2) above and, in such
case, shall cease to have been made pursuant to this
clause (20);
(21) additional Investments having an aggregate fair market value, taken together with all other Investments made pursuant to this
clause (21) that are at that time outstanding, not to exceed the greater of
(i) $165,000,000 and (ii)
75.0% of LTM EBITDA (with the fair market value of
each Investment being measured at the time made and without giving effect to subsequent changes in value),
plus the amount of any returns (including dividends, payments, interest, distributions,
returns of principal, profits on sale, repayments, income and similar amounts) in respect of such Investments (without duplication for purposes of
Section 7.05 of any amounts applied pursuant to
clause
(y) of
Section 7.05(a) with the fair market value of each Investment being measured at the time made and without giving effect to subsequent changes in value;
provided,
however, that if any Investment pursuant to this
clause (21) is made in any Person that is not the Borrower or a Restricted
Subsidiary at the date of the making of such Investment and such Person becomes the Borrower or a Restricted Subsidiary after such date, such Investment may, at the option of the Borrower, be deemed to have been made pursuant to
clauses (1) or
(2) above and, in such case, shall cease to have been made pursuant to this
clause (21);
(22) any Investment in a Similar Business having an aggregate fair market value, taken together with all other Investments made pursuant to this
clause (22) and all Investments made pursuant to
clause (20), in each case, that are at that time outstanding, not to exceed the greater of
(i)
$165,000,000 and (ii)
75.0% of LTM EBITDA (with the fair market value of each Investment being measured at the time made and without giving effect to subsequent changes in value),
plus the amount of any returns (including dividends, payments, interest, distributions, returns of principal, profits on sale, repayments, income and similar amounts) in respect of such Investments (without duplication for
purposes of
Section 7.05 of any amounts applied pursuant to
clause (y) of
Section 7.05(a)) with the fair market value of each Investment being measured at the time made and
without giving effect to subsequent changes in value;
provided,
however, that if any Investment pursuant to this
clause (22)
is made in any Person that is not the Borrower or a Restricted Subsidiary at the date of the making of such Investment and such Person becomes the Borrower or a Restricted Subsidiary after such date, such Investment may, at the option of the
Borrower, thereafter be deemed to have been made pursuant to
clause (1) or
(2) above and, in such case, shall cease to have been made pursuant to this
clause
(22);
(23)
(i) Investments arising in connection with a Qualified Securitization Financing or Receivables Facility and (ii) distributions or
payments of Securitization Fees and purchases of Securitization Assets or Receivables Assets in connection with a Qualified Securitization Financing or Receivables Facility;
(24) Investments in connection with the Transactions;
(25) [reserved];
(26) Investments by an Unrestricted Subsidiary entered into prior to the day such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary as described
under the definition of “Unrestricted Subsidiary”;
(27) guaranty and indemnification obligations arising in connection with surety bonds issued in the ordinary course of business or consistent with past practice;
(28) Investments
(a) consisting of purchases and acquisitions of assets or services in the ordinary course of business or consistent
with past practice,
(b) made in the ordinary course of business or consistent with past practice in connection with obtaining, maintaining or renewing client, franchisee and customer contracts and loans or
(c) advances, loans, extensions of credit (including the creation of receivables) or prepayments made to, and guarantees with respect to obligations of, franchisees, distributors, suppliers, lessors, licensors and
licensees in the ordinary course of business or consistent with past practice;
(29) Investments in prepaid expenses, negotiable instruments held for collection and lease, utility and workers compensation, performance and similar deposits entered
into as a result of the operations of the business in the ordinary course of business or consistent with past practice;
(30) Investments consisting of UCC
Article 3 endorsements for collection or deposit and
Article 4 trade
arrangements with customers (or any comparable or similar provisions in other applicable jurisdictions) in the ordinary course of business or consistent with past practices;
(31) any Investment by any Captive Insurance Subsidiary in connection with the provision of insurance to the Borrower or any Subsidiaries, which Investment is made
in the ordinary course of business or consistent with past practice of such Captive Insurance Subsidiary, or by reason of applicable law, rule, regulation or order, or that is required or approved by any regulatory authority having
jurisdiction over such Captive Insurance Subsidiary or its business, as applicable;
(32) non-cash Investments in connection with tax planning and reorganization activities, and Investments in connection with any Permitted Intercompany Activities,
Permitted Tax Restructuring and related transactions;
(33) Investments made from casualty insurance proceeds in connection with the replacement, substitution, restoration or repair of assets on account of a Casualty
Event; and
(34) any other Investment so long as
(x) no Event of Default exists and
(y) immediately after giving pro
forma effect to the Investment and the incurrence of any Indebtedness the net proceeds of which are used to make such Investment, the Consolidated
Total
Net
Leverage
Ratio shall be no greater than
2.00 to
1.00.
“
Permitted Liens” means, with respect to any Person:
(1) Liens on assets or property of a Restricted Subsidiary that is not a Guarantor securing Indebtedness and other obligations of any Restricted Subsidiary that is
not a Guarantor;
(2) pledges, deposits or Liens
(a) in connection with workmen’s compensation laws, payroll taxes, unemployment insurance laws,
employers’ health tax and other social security laws or similar legislation or other insurance related obligations (including in respect of deductibles, self-insured retention amounts and premiums and adjustments thereto),
(b) securing liability, reimbursement or indemnification obligations of (including obligations in respect of letters of credit or bank guarantees or similar instruments) for the benefit of insurance carriers under
insurance or self-insurance arrangements or otherwise supporting the payments of items set forth in the foregoing
clause (a), or
(c) in connection with bids, tenders, completion guarantees, contracts,
leases, utilities, licenses, public or statutory obligations, or to secure the performance of bids, trade contracts, government contracts and leases, statutory obligations, surety, stay, indemnity, warranty, release, judgment, customs,
appeal, performance bonds, guarantees of government contracts, return of money bonds, bankers’ acceptance facilities and obligations of a similar nature (including those to secure health, safety and environmental obligations), and obligations
in respect of letters of credit, bank guarantees or similar instruments that have been posted to support the same, or as security for contested taxes or import or customs duties or for the payment of rent, or other obligations of like nature,
in each case incurred in the ordinary course of business or consistent with past practice;
(3) Liens with respect to outstanding motor vehicle fines and Liens imposed by law or regulation, including carriers’, warehousemen’s, mechanics’, landlords’,
suppliers’, materialmen’s, repairmen’s, architects’, construction contractors’ or other similar Liens, in each case
(x) for amounts not overdue for a period of more than 60 days or, if more than 60 days overdue,
are unfiled and no other action has been taken to enforce such Liens or that are being contested in good faith by appropriate proceedings or
(y) so long as such Liens do not individually or in the aggregate have
a Material Adverse Effect;
(4) Liens for Taxes, assessments or other governmental charges, in each case
(x)
(i) that are not
overdue for a period of more than 60 days, (ii) that are not yet payable or subject to penalties for nonpayment, (iii) that are being contested in good faith by appropriate proceedings and with respect to which appropriate reserves required
pursuant to GAAP (or other applicable accounting principles) have been made in respect thereof or (iv) for property Taxes on property of the Borrower or one of its Subsidiaries that the Borrower (or the applicable Subsidiary) has determined
to abandon if the sole recourse for such Tax is to such property or
(y) so long as such Liens do not individually or in the aggregate have a Material Adverse Effect;
(5) encumbrances, charges, ground leases, easements (including reciprocal easement agreements), survey exceptions, restrictions, encroachments, protrusions, by-law,
regulation, zoning restrictions or reservations of, or rights of others for, licenses, rights of way, servitudes, sewers, electric lines, drains, telegraph, telephone and cable television lines and other similar purposes, or zoning, building
codes or other restrictions (including minor defects and irregularities in title and similar encumbrances) as to the use of real properties, exceptions on title policies insuring Liens granted on any mortgaged properties or any other
collateral or Liens incidental to the conduct of the business of such Person or to the ownership of its properties, including servicing agreements, development agreements, site plan agreements, subdivision agreements, facilities sharing
agreements, cost sharing agreements and other similar agreements, charges or encumbrances, which do not in the aggregate materially interfere with the ordinary course conduct of the business of the Borrower and its Restricted Subsidiaries,
taken as a whole;
(6) Liens
(a) securing Swap Obligations, Obligations in respect of Cash Management Agreements and the costs thereof;
(b) that are rights of set-off, rights of pledge or other bankers’ Liens
(i) relating to treasury, depository and cash management services or any automated clearing house transfers of
funds in the ordinary course of business or consistent with past practice, (ii) relating to pooled deposit or sweep accounts to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the
Borrower or any Subsidiary or consistent with past practice or (iii) relating to purchase orders and other agreements entered into with customers of the Borrower or any Restricted Subsidiary in the ordinary course of business or consistent
with past practice;
(c) on cash accounts securing Indebtedness and other Obligations permitted to be incurred under
clause (8)(e) of
Section 7.01(b) with
financial institutions;
(d) encumbering reasonable customary initial deposits and margin deposits and similar Liens attaching to commodity trading accounts or other brokerage accounts incurred in the ordinary
course of business or consistent with past practice and not for speculative purposes; and
(e)
(i) of a collection bank arising under
Section 4-
210 of the UCC or any comparable or successor provision on items in the course of collection, (ii) in favor of a banking or other financial institution or electronic payment service providers arising as a matter of
law encumbering deposits (including the right of set-off) arising in the ordinary course of business in connection with the maintenance of such accounts and (iii) arising under customary general terms and conditions of the account bank in
relation to any bank account maintained with such bank and attaching only to such account and the products and proceeds thereof, which Liens, in any event, do not secure any Indebtedness;
(7) leases, licenses, subleases and sublicenses of assets (including real property, intellectual property, software and other technology rights), in each case
entered into in the ordinary course of business, consistent with past practice or, with respect to intellectual property, software and other technology rights, that are not material to the conduct of the business of the Borrower and its
Restricted Subsidiaries, taken as a whole;
(8) Liens securing or otherwise arising out of judgments, decrees, attachments, orders or awards not giving rise to an Event of Default under Section 8.01(h);
(9) Liens
(a) securing Finance Lease Obligations or Purchase Money Obligations, or securing the payment of all or a part of the
purchase price of, or securing Indebtedness or other obligations incurred to finance or refinance the acquisition, improvement or construction of, assets or property acquired or constructed in the ordinary course of business;
provided that
(i) the aggregate principal amount of Indebtedness secured by such Liens is otherwise permitted to be incurred under this Agreement and (ii) any such Liens may
not extend to any assets or property of the Borrower or any Restricted Subsidiary other than the assets or property the acquisition, leasing, expansion, construction, installation, replacement, repair or improvement and assets and property
affixed or appurtenant thereto and accessions, additions, improvements, proceeds, dividends or distributions thereof, including after-acquired property that is
(A) affixed or incorporated into the property or
assets covered by such Lien,
(B) after-acquired property or assets subject to a Lien securing such Indebtedness, the terms of which Indebtedness require or include a pledge of after-acquired property or assets
and
(C) the proceeds and products thereof and
(b) any interest or title of a lessor, sublessor, franchisor, licensor or sublicensor or secured by a lessor’s, sublessor’s,
franchisor’s, licensor’s or sublicensor’s interest under any Finance Lease Obligations or Non-Financing Lease Obligations;
(10) Liens arising from UCC financing statements, including precautionary financing statements (or similar filings) regarding operating leases or consignments entered
into by the Borrower and its Restricted Subsidiaries;
(11) Liens existing on the Closing Date and, to the extent the outstanding principal amount of the obligations secured thereby is in excess of $10,000,000, listed on
Schedule 1.01(d), including any Liens securing any Refinancing Indebtedness of any Indebtedness secured by such Liens;
(12) Liens on property, other assets or shares of stock of a Person at the time such Person becomes a Subsidiary (or at the time the Borrower or a Subsidiary acquires
such property, other assets or shares of stock, including any acquisition by means of a merger, amalgamation, consolidation or other business combination transaction with or into the Borrower or any Restricted Subsidiary);
provided,
however, that such Liens are not created in anticipation of such other Person becoming a Subsidiary (or such acquisition of such property, other assets
or stock);
provided,
further, that such Liens are limited to all or part of the same property, other assets or stock (
plus
property and assets affixed or appurtenant thereto and additions, improvements, accessions, proceeds, dividends or distributions thereof, including
(i) after-acquired property that is affixed or incorporated into
the property or assets covered by such Lien, (ii) after-acquired property or assets subject to a Lien securing such Indebtedness, the terms of which Indebtedness require or include a pledge of after-acquired property or assets and (iii) the
proceeds and products thereof) that secured (or, under the written arrangements under which such Liens arose, could secure) the Obligations relating to any Indebtedness or other obligations to which such Liens relate;
(13) Liens securing Obligations relating to any Indebtedness or other obligations of the Borrower or a Restricted Subsidiary owing to the Borrower or a Restricted
Subsidiary, or Liens in favor of the Borrower or any Restricted Subsidiary or the Agents;
(14) Liens securing Refinancing Indebtedness incurred to refinance Indebtedness that was previously so secured, and permitted to be secured under this Agreement;
provided that any such Lien is limited to all or part of the same property or assets (
plus property and assets affixed or appurtenant thereto and additions,
improvements, accessions, proceeds, dividends or distributions thereof, including after-acquired property that is
(i) affixed or incorporated into the property or assets covered by such Lien, (ii) after-acquired
property or assets subject to a Lien securing such Indebtedness, the terms of which Indebtedness require or include a pledge of after-acquired property or assets and (iii) the proceeds and products thereof) that secured (or, under the written
arrangements under which the original Lien arose, could secure) the Obligations relating to the Indebtedness or other obligations being refinanced or is in respect of property or assets that is or could be the security for or subject to a
Permitted Lien hereunder;
(15)
(a) mortgages, liens, security interests, restrictions, encumbrances or any other matters of record that have been placed by any
government, statutory or regulatory authority, developer, landlord or other third party on property over which the Borrower or any Restricted Subsidiary has easement rights or on any leased property and subordination or similar arrangements
relating thereto and
(b) any condemnation or eminent domain proceedings affecting any real property;
(16) any encumbrance or restriction (including put and call arrangements) with respect to Capital Stock of any joint venture secured financing arrangement, joint
venture or similar arrangement pursuant to any joint venture secured financing arrangement, joint venture or similar agreement;
(17) Liens on property or assets under construction (and related rights) in favor of a contractor or developer or arising from progress or partial payments by a
third party relating to such property or assets;
(18) Liens arising out of conditional sale, title retention, hire purchase, consignment or similar arrangements for the sale or purchase of goods entered into in the
ordinary course of business or consistent with past practice;
(19) Liens securing Indebtedness and other obligations in respect of
(a) the Facilities, including any Letters of Credit, any New Loan
Commitment and any Extended Loans and
(b) obligations of the Borrower or any Subsidiary in respect of any obligations in respect of Cash Management Agreements, Secured Hedge Agreements or Swap Obligations
provided by any lender party to this Agreement or Affiliate of such lender or any other Hedge Bank or Cash Management Bank (or any Person that was a lender or an Affiliate of a lender at the time the applicable agreements in respect of such
Obligations in respect of Cash Management Agreements or Swap Obligation were entered into), including all Obligations;
(20) Liens securing Indebtedness and other obligations under
clause (5) of
Section 7.01(b) (subject, for
the avoidance of doubt, to any limitations on the ability to incur secured Indebtedness (including the priority thereof) expressly set forth therein);
provided that any such Liens securing Acquired
Indebtedness shall only be permitted if such Liens are limited to all or part of the same property or assets, including Capital Stock (
plus property and assets affixed or appurtenant thereto and
additions, improvements, accessions, proceeds, dividends or distributions thereof, including after-acquired property that is
(i) affixed or incorporated into the property or assets covered by such Lien, (ii)
after-acquired property or assets subject to a Lien securing such Indebtedness, the terms of which Indebtedness require or include a pledge of after-acquired property or assets and (iii) the proceeds and products thereof) acquired, or of any
Person acquired or merged, consolidated or amalgamated with or into the Borrower or any Restricted Subsidiary, in any transaction to which such Indebtedness or other obligation relates;
(21) Liens securing Indebtedness and other obligations under clauses (1), (11) (provided that, in the case of
clause (11), such Liens cover only the assets of non‑Guarantors), (16) or (17) of Section 7.01(b);
(22) Liens on Capital Stock of the Borrower held by the Borrower or any of its Subsidiaries;
(23) Liens on Capital Stock or other securities or assets of any Unrestricted Subsidiary that secure Indebtedness or other obligations of such Unrestricted Subsidiary;
(24) Liens deemed to exist in connection with Investments permitted under
clause (4) of the definition of “Cash
Equivalents”;
(25) Liens on
(i) goods the purchase price of which is financed by a documentary letter of credit issued for the account of the
Borrower or any Subsidiary or Liens on bills of lading, drafts or other documents of title arising by operation of law or pursuant to the standard terms of agreements relating to letters of credit, bank guarantees and other similar
instruments and (ii) specific items of inventory or other goods and proceeds of any Person securing such Person’s obligations in respect of bankers’ acceptances or documentary letters of credit issued or created for the account of such Person
to facilitate the purchase, shipment or storage of such inventory or other goods;
(26) Liens on vehicles or equipment of the Borrower or any Restricted Subsidiary in the ordinary course of business or consistent with past practice;
(27) Liens on assets or securities deemed to arise in connection with and solely as a result of the execution, delivery or performance of contracts to sell such
assets or securities if such sale is otherwise not prohibited by this Agreement;
(28)
(a) Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto, and
(b) Liens, pledges, deposits made or other security provided to secure liabilities to, or indemnification obligations of (including obligations in respect of letters of credit or bank guarantees for the benefits
of), insurance carriers in the ordinary course of business or consistent with past practice;
(29) Liens solely on any cash earnest money deposits made in connection with any letter of intent or purchase agreement permitted under this Agreement;
(30) Liens
(i) on cash advances or escrow deposits in favor of the seller of any property to be acquired in an Investment permitted
under this Agreement to be applied against the purchase price for such Investment or otherwise in connection with any escrow arrangements with respect to any such Investment (including any letter of intent or purchase agreement with respect
to such Investment), and (ii) consisting of an agreement to sell, transfer, lease or otherwise dispose of any property in an asset sale, in each case, solely to the extent such Investment or sale, transfer, lease or other disposition, as
applicable, would have been permitted on the date of the creation of such Lien;
(31) Liens securing Indebtedness and other obligations in an aggregate principal amount not to exceed the greater of
(i) $110,000,000
and (ii)
50.0% of LTM EBITDA at the time incurred and any Liens securing any Refinancing Indebtedness of any Indebtedness secured by such Liens;
(32) Liens then existing with respect to assets of an Unrestricted Subsidiary on the day such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary as
described under the definition of “Unrestricted Subsidiary”;
(33) Liens securing Indebtedness and other obligations permitted under Section 7.01(a);
(34) Liens deemed to exist in connection with Investments in repurchase agreements permitted under
Section 7.05;
provided that such Liens do not extend to any assets other than those that are the subject of such repurchase agreement;
(35) Liens arising in connection with a Qualified Securitization Financing or a Receivables Facility, and back-up Liens in connection with any other factoring,
securitization or similar arrangement;
(36) Settlement Liens;
(37) rights of recapture of unused real property in favor of the seller of such property set forth in customary purchase agreements and related arrangements with any
government, statutory or regulatory authority;
(38) the rights reserved to or vested in any Person or government, statutory or regulatory authority by the terms of any lease, license, franchise, grant or permit
held by the Borrower or any Restricted Subsidiary or by a statutory provision, to terminate any such lease, license, franchise, grant or permit, or to require annual or periodic payments as a condition to the continuance thereof;
(39) restrictive covenants affecting the use to which real property may be put and Liens or covenants restricting or prohibiting access to or from lands abutting on
controlled access highways or covenants affecting the use to which lands may be put; provided that such Liens or covenants do not interfere with the ordinary conduct of the business of the Borrower or
any Restricted Subsidiary;
(40) Liens on property, assets or Permitted Investments used to defease or to satisfy or discharge Indebtedness; provided
that such defeasance, satisfaction or discharge is not prohibited by this Agreement;
(41) Liens relating to escrow arrangements securing Indebtedness, including
(i) Liens on escrowed proceeds from the issuance of
Indebtedness for the benefit of the related holders of debt securities or other Indebtedness (or the underwriters, arrangers, trustee or collateral agent thereof) and (ii) Liens on cash or Cash Equivalents set aside at the time of the
incurrence of any Indebtedness, in either case to the extent such cash or Cash Equivalents prefund the payment of interest or premium or discount on such Indebtedness (or any costs related to the issuance of such Indebtedness) and are held in
an escrow account or similar arrangement to be applied for such purpose;
(42) Liens on assets that do not constitute Collateral;
(43) Liens on assets securing any Indebtedness owed to any Captive Insurance Subsidiary by the Borrower or any Restricted Subsidiary;
(44) Liens arising in connection with any Permitted Intercompany Activities, Permitted Tax Restructuring and related transactions;
(45) Liens securing Permitted Debt Exchange Notes; and
(46) Liens arising in connection with the Transactions.
In the event that a Permitted Lien meets the criteria of more than one of the types of Permitted Liens (at the time of incurrence or at a later date), the Borrower in its sole discretion may
divide, classify or from time to time reclassify all or any portion of such Permitted Lien in any manner that complies with this Agreement and such Permitted Lien shall be treated as having been made pursuant only to the clause or clauses of
the definition of Permitted Lien to which such Permitted Lien has been classified or reclassified.
“Permitted Payments” has the meaning specified in Section 7.05(b).
“
Permitted Tax Amount” means
(a) for any taxable period for which the Borrower is a member (or is an entity treated as
disregarded from a member) of a group filing a consolidated, group, affiliated, unitary, combined or similar income or similar tax return with any direct or indirect parent of the Borrower, any income or similar Taxes for which such parent is
liable that are attributable to the taxable income of the Borrower and its applicable Subsidiaries up to an amount not to exceed with respect to such taxable period the amount of any such Taxes that the Borrower and such Subsidiaries would
have been required to pay on a separate company basis or on a consolidated basis calculated as if the Borrower and such Subsidiaries had paid Tax on a consolidated, combined, group, affiliated, unitary or similar basis on behalf of a
consolidated, combined, affiliated, unitary or similar group consisting only of the Borrower and such Subsidiaries for all relevant taxable periods;
provided that, such amount attributable to the taxable income of an Unrestricted Subsidiary for each taxable period shall not exceed the amount actually paid by such Unrestricted Subsidiary to any Loan
Party for such purpose and
(b) franchise and similar taxes required to be paid by any direct or indirect parent of the Borrower to maintain its organizational existence.
“Permitted Tax Restructuring” means any reorganizations, restructuring, and other activities related to Tax planning, Tax reorganization, or any Tax
restructuring entered into prior to, on or after the date hereof so long as such Permitted Tax Restructuring is not materially adverse to the holders of the Loans (as determined by the Borrower in good faith). For purposes of clarity, a
Permitted Tax Restructuring may include (but is not limited to) reorganizations, restructurings, and other activities related to Tax planning, Tax reorganization, or any Tax restructuring entered into by or among any direct or indirect parent
of the Borrower, the Borrower and any Subsidiary of the Borrower.
“
Person” means any individual, corporation, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization, limited liability company, government or any agency or political subdivision thereof or any other entity.
“Plan” means any “employee benefit plan” (other than a Multiemployer Plan) within the meaning of Section 3(3) of ERISA that is maintained or is
contributed to by a Loan Party or any ERISA Affiliate or under which any Loan Party or ERISA Affiliate has any liability or obligation, whether fixed or contingent, and, in any case, is subject to Title IV of ERISA or the Pension Funding
Rules. For greater certainty, “Plan” excludes any Foreign Plan.
“Platform” has the meaning specified in Section 6.02.
“Pledged Debt” means “Pledged Debt” (or similar term) as defined in
the Security Agreement.
“Pledged Interests” means “Pledged Interests” (or similar term) as
defined in the Security Agreement.
“Pounds Sterling” and “£” means freely transferable lawful money of the United Kingdom (expressed in Pounds
Sterling).
“
Preferred Stock” as applied to the Capital Stock of any
Person, means Capital Stock of any class or classes (however designated) which is preferred as to the payment of dividends or as to the distribution of assets upon any
voluntary or involuntary liquidation or dissolution of such Person, over shares of Capital Stock of any other class of such Person.
“Prepayment Amount” has the meaning specified in Section 2.05(c).
“Prepayment-Based Incremental Facility” has the meaning specified in Section 2.14(a)(y).
“Prepayment Date” has the meaning specified in Section 2.05(c).
“Primary Disqualified Institution” has the meaning specified in the definition of “Disqualified Institution”.
“primary obligations” has the meaning specified in the definition of “Contingent Obligations”.
“primary obligor” has the meaning specified in the definition of “Contingent Obligations”.
“
Prime Rate” means, for any day, the rate of interest last quoted by
The Wall Street Journal as the “
Prime Rate” in the U.S. for such day or, if
The Wall Street
Journal ceases to quote such rate, the highest per annum interest rate published by the FRB in
Federal Reserve Statistical Release H.15
(519)
(Selected Interest Rates) as the “bank prime loan” rate for such day or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by the Administrative Agent in its reasonable discretion) or any similar release
by the FRB (as determined by the Administrative Agent in its reasonable discretion), in each case, for such day. Each change in the Prime Rate shall be effective from and including the date that such change is publicly announced or quoted as
being effective.
“
Pro Rata Share” means, with respect to each Lender and any Facility or all the Facilities or any Tranche or all the Tranches (as applicable) at any time, a fraction (expressed as a percentage, carried out to the
ninth decimal place, and subject to adjustment as provided in
Section 2.17), the numerator of which is the amount of the Commitments of such Lender under the applicable Facility or the
Facilities or Tranche or Tranches (and, in the case of any Term Loan Tranche after the applicable borrowing date and without duplication, the outstanding principal amount of Term Loans under such Tranche, of such Lender, at such time) at such
time and the denominator of which is the amount of the Aggregate Commitments under the applicable Facility or the Facilities or Tranche or Tranches at such time (and, in the case of any Term Loan Tranche and without duplication, the
outstanding principal amount of Term Loans under such Tranche, at such time);
provided that if the commitment of each Lender to make Loans and the obligation of each L/C Issuer to make L/C Credit
Extensions have been terminated pursuant to
Section 8.02, then the Pro Rata Share of each Lender shall be determined based on the Pro Rata Share of such Lender immediately prior to such
termination and after giving effect to any subsequent assignments made pursuant to the terms hereof. The initial Pro Rata Share of each Lender is set forth opposite the name of such Lender on
Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender became a party hereto, as applicable.
“Projections” means the projections of the Borrower and its Subsidiaries included in the Information Memorandum and any other projections, financial
estimates, forecast and any other forward-looking statements (including statements with respect to booked business) of such entities furnished to the Lenders or the Agents in writing by or on behalf of the Borrower or any of its Subsidiaries
prior to the Closing Date.
“PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
“Public Company Costs” means, as to any Person, costs associated with, or in anticipation of, or preparation for, compliance with the requirements of
the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith and costs relating to compliance with the provisions of the Securities Act and the Exchange Act or any other comparable body of laws, rules or
regulations, as companies with listed equity, directors’ compensation, fees and expense reimbursement, costs relating to enhanced accounting functions and investor relations, stockholder meetings and reports to stockholders, directors’ and
officers’ insurance and other executive costs, legal and other professional fees, listing fees and other transaction costs, in each case to the extent arising solely by virtue of the listing of such Person’s equity securities on a national
securities exchange or issuance of public debt securities.
“Public Lender” has the meaning specified in Section 6.02.
“Public Side Information” has the meaning specified in Section 6.02.
“Purchase Money Obligations” means any Indebtedness incurred to finance or refinance the acquisition, leasing, expansion, construction, installation,
replacement, repair or improvement of property (real or personal), equipment or assets (including Capital Stock), and whether acquired through the direct acquisition of such property or assets, or the acquisition of the Capital Stock of any
Person owning such property or assets, or otherwise.
“Qualified Securitization Financing” means any Securitization Facility
that meets the following conditions:
(i) the Board of Directors shall have determined in good faith that such Securitization Facility (including financing terms, covenants, termination events and
other provisions) is in the aggregate economically fair and reasonable to the Borrower and its Restricted Subsidiaries,
(ii) all sales of Securitization Assets and related assets by the Borrower or any Restricted Subsidiary to the Securitization Subsidiary or any other Person are made
for fair consideration (as determined in good faith by the Borrower) and
(iii) the financing terms, covenants, termination events and other provisions thereof shall be fair and reasonable terms (as determined in good faith by the Borrower)
and may include Standard Securitization Undertakings.
“
Qualifying Material Acquisition” means any acquisition, or a series of related acquisitions by the Borrower or any Subsidiary, of
(a) Capital Stock in any Person if, after giving effect thereto, such Person will become a Subsidiary (or, if such Person is already a Subsidiary of the Borrower, such acquisition shall increase the amount of
Equity Interests of such Person owned by the Borrower and its Subsidiaries) or
(b) any going business or assets comprising all or substantially all the assets of (or all or substantially all the assets
constituting a business unit, division, product line or line of business of) any Person;
provided that, in the case of each of the foregoing
clauses (a) and
(b),
the aggregate consideration therefor (including Indebtedness assumed in connection therewith, all obligations in respect of deferred purchase price (including obligations under any purchase price adjustment, earn-out, contingent payment or
similar payments, in each case as estimated in good faith by the Borrower) and all other consideration payable in connection therewith (including payment obligations in respect of noncompetition agreements or other arrangements representing
acquisition consideration)) is equal to or greater than $100,000,000.
“
Ratio-Based Incremental Facility” has the meaning specified in
Section 2.14(a)(x).
“Ratio Debt” has the meaning specified in Section 7.01(a).
“
Receivables Assets” means
(a) any
accounts receivable owed to the Borrower or a Restricted Subsidiary subject to a Receivables Facility and the proceeds thereof and
(b) all collateral securing such accounts receivable, all contracts and contract
rights, guarantees or other obligations in respect of such accounts receivable, all records with respect to such accounts receivable and any other assets customarily transferred together with accounts receivable in connection with a
non-recourse accounts receivable factoring arrangement.
“
Receivables Facility” means any arrangement between the Borrower or a Subsidiary and a commercial bank, an asset based lender or other financial
institution or an Affiliate thereof pursuant to which
(a) the Borrower or such Subsidiary, as applicable, sells (directly or indirectly) to such commercial bank, asset based lender or other financial institution
(or such Affiliate) Receivables Assets and
(b) the obligations of the Borrower or such Restricted Subsidiary, as applicable, thereunder are non-recourse (except for Securitization Repurchase Obligations) to the
Borrower and such Subsidiary and
(c) the financing terms, covenants, termination events and other provisions thereof shall be on market terms (as determined in good faith by the Borrower) and may include Standard
Securitization Undertakings, and shall include any guaranty in respect of such arrangements.
“
Recipient” means the Administrative Agent, any Lender or any L/C Issuer.
“
Reference Period” has the meaning specified in
Section 1.10(a).
“
Reference Time” means with respect to any setting of the then-current Benchmark means
(a) if such Benchmark is the Term
SOFR, 5:00 a.m. (Chicago time) on the day that is two
(2) U.S. Government Securities Business Days preceding the date of such setting,
(b) if the RFR for such Benchmark is Daily
Simple SOFR, then four (4) Business Days prior to such setting or
(c) if such Benchmark is none of the Term SOFR or Daily Simple SOFR, the time determined by the Administrative Agent in its reasonable discretion.
“Refinancing Amendment” means an amendment to this Agreement, in form
and substance reasonably satisfactory to the Administrative Agent, among the Borrower, the Administrative Agent and the Lenders providing Specified Refinancing Debt, effecting the incurrence of such Specified Refinancing Debt in accordance
with Section 2.18.
“
Refinancing Indebtedness”
means Indebtedness that is incurred to refund, refinance, replace, exchange, renew, repay or extend (including pursuant to any defeasance or discharge mechanism) any Indebtedness (or unutilized commitment in respect of Indebtedness) existing
on the Closing Date or incurred (or established) in compliance with this Agreement (including Indebtedness of the Borrower that refinances Indebtedness of any Restricted Subsidiary and Indebtedness of any Restricted Subsidiary that refinances
Indebtedness of the Borrower or a Restricted Subsidiary) including Indebtedness that refinances Refinancing Indebtedness, and Indebtedness incurred pursuant to a commitment that refinances any Indebtedness or unutilized commitment;
provided,
however, that:
(1) (a) such Refinancing Indebtedness
(x) has a final Stated Maturity and Weighted Average Life to Maturity at the time such
Refinancing Indebtedness is incurred which is not less than the final Stated Maturity and remaining Weighted Average Life to Maturity of the Indebtedness being refunded, refinanced, replaced, exchanged, renewed, repaid or extended or
(y) requires no or nominal payments in cash (other than interest payments) prior to the date that is 91 days after the Latest Maturity Date for the then outstanding Initial Term Loans; and
(b)
to the extent such Refinancing Indebtedness refinances Subordinated Indebtedness, Disqualified Stock or Preferred Stock, such Refinancing Indebtedness is Subordinated Indebtedness, Disqualified Stock or Preferred Stock, respectively, and, in
the case of Subordinated Indebtedness, is subordinated to the Loans on customary terms (as determined by the Borrower in good faith);
(2) Refinancing Indebtedness shall not include:
(i) Indebtedness of a Subsidiary of the Borrower that is not a Guarantor that refinances Indebtedness of the Borrower or a Guarantor; or
(ii) Indebtedness of the Borrower or a Restricted Subsidiary that refinances Indebtedness of an Unrestricted Subsidiary; and
(3) such Refinancing Indebtedness is incurred in an aggregate principal amount (or if issued with original issue discount, an aggregate issue price) that is equal
to or less than the sum of
(x) the aggregate principal amount (or if issued with original issue discount, the aggregate accreted value) then outstanding of the Indebtedness being
Refinanced,
plus (y) an amount equal to any unutilized commitment relating to the
Indebtedness being refinanced or otherwise then outstanding under a financing arrangement being refinanced to the extent the unutilized commitment being refinanced could be drawn in compliance with
Section 7.01
immediately prior to such refinancing,
plus (z) accrued and unpaid interest, dividends, premiums (including tender premiums), defeasance costs, underwriting discounts,
fees, costs and expenses (including original issue discount, upfront fees or similar fees) in connection with such refinancing.
“Refunding Capital Stock” has the meaning specified in Section 7.05(b)(2).
“Register” has the meaning specified in Section 10.07(c).
“Regulation S-X” means Regulation S-X under the Securities Act.
“Related Parties” means, with respect to any Person, such Person’s
Affiliates and the partners, members, directors, managers, officers, employees, agents, attorneys-in-fact, trustees and advisors of such Person and of such Person’s Affiliates.
“Release” means any release, spill, emission, leaking, pumping, pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping,
leaching, movement or migration of any Hazardous Materials into or through the Environment (including the abandonment or disposal of any barrels, containers or other closed receptacles containing any Hazardous Material).
“Relevant Governmental Body” means, the Federal Reserve Board and/or the NYFRB, or a committee officially endorsed or convened by the Federal Reserve
Board and/or the NYFRB or, in each case, any successor thereto.
“
Relevant Rate” means
(i) with respect to any SOFR Borrowing, Term SOFR or (ii) with respect to any RFR Borrowing, Daily
Simple SOFR, as applicable.
“Relevant Transaction” has the meaning specified in Section 2.05(b)(i).
“Remaining Obligations” means contingent indemnification obligations as to which no claim has been asserted and obligations and liabilities under
Secured Cash Management Agreements and Secured Hedge Agreements, and Letters of Credit that have been Cash Collateralized or as to which arrangements satisfactory to the L/C Issuer that issued such Letters of Credit shall have been made.
“Replaceable Lender” has the meaning specified in Section 3.08(a).
“
Reportable Event” means any of the events set forth in Section
4043(c) of ERISA, other than events for which the
30-day notice period has been waived.
“
Request for Credit Extension” means
(a) with respect to a Borrowing, conversion or continuation of Loans, a
Committed Loan Notice and
(b) with respect to an L/C Credit Extension, a Letter of Credit Application.
“
Required Lenders” means, as of any date of determination, Lenders
having more than
50.0% of the sum of the
(a) Total Outstandings (with the aggregate amount of each Lender’s risk participation and funded participation in L/C Obligations being
deemed “held” by such Lender for purposes of this definition) and
(b) aggregate unused Revolving Credit Commitments;
provided that the unused Revolving Credit Commitment
of, and the portion of the Total Outstandings held by any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.
“
Required Revolving Lenders” means, as of any date of determination, Revolving Credit Lenders holding more than
50.0% of the sum of
(a) Total Revolving Credit
Outstandings (with the aggregate amount of each Revolving Credit Lender’s risk participation and funded participation in L/C Obligations being deemed “held” by such Revolving Credit Lender for purposes of this definition) and
(b) aggregate unused Revolving Credit Commitments;
provided that the unused Revolving Credit Commitment of, and the portion of the Total Revolving Credit Outstandings held
or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Revolving Lenders.
“Reserved Indebtedness Amount” has the meaning specified in Section 1.12.
“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible Officer” means the chief executive officer,
representative, director, manager, president, vice president, executive vice president, chief financial officer, treasurer or assistant treasurer, secretary or assistant secretary, an authorized signatory, an attorney-in-fact (to the extent
empowered by the Board of Directors/managers of the Borrower) or other similar officer of a Loan Party. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been
authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.
“Restricted Group” means the collective reference to from and after the Closing Date, the Borrower and its Restricted Subsidiaries, and “Restricted Group Member” means any one of them.
“Restricted Investment” means any Investment other than a Permitted
Investment.
“Restricted Payment” has the meaning specified in Section 7.05(a).
“Restricted Subsidiary” means any Subsidiary of a Person other than an
Unrestricted Subsidiary of such Person. Unless otherwise indicated in this Agreement, all references to Restricted Subsidiaries shall mean Restricted Subsidiaries of the Borrower.
“
Retained Asset Excess Proceeds” has the
meaning specified in
Section 2.05(b)(i).
“Retained Declined Proceeds” has the meaning specified in Section 2.05(c).
“
Reuters” means, as applicable, Thomson Reuters Corp., Refinitiv, or any successor thereto.
“Revolving Commitment Increase Lender” has the meaning specified in Section 2.14(e).
“Revolving Credit Borrowing” means a borrowing under the Revolving Credit Facility consisting of simultaneous Revolving Credit Loans of the same Type and, in the case of SOFR Loans, having the same Interest Period made by
each of the Revolving Credit Lenders pursuant to Section 2.01(b).
“Revolving Credit Commitment Increase” has the meaning specified in Section 2.14(a).
“
Revolving Credit Commitments” means, as to any Revolving Credit Lender,
(i) its Initial Revolving Credit Commitment, (ii) its
Revolving Credit Commitment Increase, (iii) its New Revolving Commitment or (iv) its
Specified Refinancing Revolving Credit
Commitment. The amount of each Revolving Credit Lender’s Initial Revolving Credit Commitment is as set forth in the definition thereof and the amount of each Lender’s other Revolving Credit Commitments shall be as set forth in the Assignment
and Assumption or in the amendment or agreement relating to the respective Revolving Credit Commitment Increase, New Revolving Commitment or Specified Refinancing Revolving Credit Commitment pursuant to which such Lender shall have assumed
its Revolving Credit Commitment, as applicable, as such amounts may be adjusted from time to time in accordance with this Agreement.
“Revolving Credit Facility” means, at any time, the aggregate amount of the Revolving Credit Lenders’ Revolving Credit Commitments in respect of any Revolving Tranche at such time.
“Revolving Credit Lender” means, at any time, any Lender that has a Revolving Credit Commitment or that holds any Outstanding Amount in respect of Revolving Credit Loans and/or L/C Obligations at such time (and after the
termination of all Revolving Credit Commitments, any Lender that holds any Outstanding Amount in respect of Revolving Credit Loans and/or L/C Obligations).
“Revolving Credit Loan” means an advance made by any Revolving Credit Lender under any Revolving Credit Facility (including, for the avoidance of doubt, the Initial Revolving Tranche).
“Revolving Credit Note” means a promissory note of the Borrower payable to any Revolving Credit Lender or its registered assigns, in substantially the form of Exhibit B-2
hereto, evidencing the aggregate indebtedness of the Borrower to such Revolving Credit Lender resulting from the Revolving Credit Loans made by such Revolving Credit Lender.
“
Revolving Tranche” means
(a) the
Revolving Credit Facility pursuant to which Revolving Credit Loans,
New Revolving Loans or Letters of Credit are made and
(b) any Specified Refinancing
Debt constituting revolving credit facility commitments, in each case, including the extensions of credit made thereunder. Additional Revolving Tranches may be added after the Closing Date pursuant to the terms hereof (
e.g., New Revolving Commitments and Extended Revolving Commitments).
“RFR Borrowing” means, as to any Borrowing, the RFR Loans comprising such Borrowing.
“RFR Loan” means a Loan that bears interest at a rate based on Daily Simple SOFR.
“
S&P” means
Standard & Poor’s
Ratings Services, a Standard & Poor’s Financial Services LLC business or any successor to the rating agency business thereof.
“Sale and Leaseback Transaction” means any arrangement providing for the leasing by the Borrower or any of its Restricted Subsidiaries of any real or
tangible personal property, which property has been or is to be sold or transferred by the Borrower or such Restricted Subsidiary to a third Person in contemplation of such leasing.
“
Sanctioned Country” means, at any time, a country, region, or
territory that is the subject of a comprehensive export, import, financial, investment or other trade-related embargo under any Sanctions Laws and Regulations, which as of the date of this Agreement consist of Cuba, Iran, North Korea, Syria,
the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic and the
Crimea, Kherson, and Zaporizhzhia regions of Ukraine.
“
Sanctioned Person” means, at any time, any Person that is the subject
or target of Sanctions Laws and Regulations, including
(a) any Person listed in any
Sanctions Laws
and Regulations-related lists of designated Persons maintained by the U.S. government (including OFAC’s
Specially Designated
Nationals and Blocked Persons List, the U.S. Department of State’s list of
Debarred Parties, and the U.S. Department of Commerce’s Entity List), the United Nations Security Council, HM’s Treasury
of the United Kingdom or any European Union member state,
(b) any Person located, operating, organized, or resident in a Sanctioned Country, and
(c) any Person owned or controlled by
any Person or Persons described in
clause (a) or
(b) above.
“
Sanctions Laws and Regulations” means
(i) any economic or financial sanctions or other requirements imposed by
or based upon the obligations or authorities set forth in the U.S. International Emergency Economic Powers Act (50 U.S.C. §§ 1701
et seq.), the U.S. Trading with the Enemy Act (50 U.S.C. App. §§
1
et seq.), the Export Administration Act, the Export Administration Regulations, the
U.S. Syria Accountability and
Lebanese Sovereignty Act, the U.S. Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010, the Iran Sanctions Act of 1996, Section 1245 of the
National Defense Authorization Act of 2012, all as amended, or any of the foreign assets control regulations (including
31 C.F.R., Subtitle B,
Chapter V, as amended) or any other law or executive order relating thereto administered by the U.S. Department of the Treasury Office of Foreign Assets Control (“
OFAC”),
the U.S. Department of Commerce, the U.S. Department of State, and any similar law, regulation, or executive order that may be enacted, from time to time, by the United States government and (ii) any economic or financial sanctions or other
requirements imposed under similar laws or regulations enacted by the European Union or any member state thereof or the United Kingdom, or administered, enacted or enforced by the respective governmental institutions or agencies of any of the
foregoing, including, without limitation, HM’s Treasury of the United Kingdom, that apply to the Loan Parties, any of their respective Subsidiaries, or that apply to any other party to this Agreement (as any of the foregoing laws may from
time to time be amended, renewed, extended or replaced).
“SEC” means the U.S. Securities and Exchange Commission or any Governmental Authority succeeding to any of its principal functions.
“
Section 2.19 Additional Amendment”
has the meaning specified in
Section 2.19(c).
“Secured Cash Management Agreement” means any Cash Management Agreement that is entered into by and between any Loan Party or any
Restricted Subsidiary and any Cash Management Bank, except for any such Cash Management Agreement designated by the Borrower in writing to the Administrative Agent and the relevant Cash Management Bank as an “unsecured cash management
agreement” as of the Closing Date or, if later, on or about the time of entering into such Cash Management Agreement.
“Secured Hedge Agreement” means any Swap Contract that is entered into by and between any Loan Party or any Restricted Subsidiary and any Hedge Bank, except for any such Swap Contract designated by the Borrower and the
applicable Hedge Bank in writing to the Administrative Agent as an “unsecured hedge agreement” as of the Closing Date or, if later, as of the time of entering into such Swap Contract.
“Secured Obligations” has the meaning specified in the Security
Agreement.
“Secured Parties” means, collectively, the Administrative Agent, the
Collateral Agent, the Lenders (including, for the avoidance of doubt, the L/C Issuers), the Hedge Banks to the extent they are party to one or more Secured Hedge Agreements, the Cash Management Banks to the extent they are party to one or
more Secured Cash Management Agreements and each co-agent or subagent appointed by the Administrative Agent or the Collateral Agent from time to time pursuant to Article IX.
“Securities Act” means the Securities Act of 1933, as amended, and the
rules and regulations of the SEC promulgated thereunder, as amended.
“
Securitization Asset” means
(a) any accounts receivable, mortgage receivables, loan receivables, royalty, franchise fee,
license fee, patent or other revenue streams and other rights to payment or related assets and the proceeds thereof and
(b) all collateral securing such receivable or asset, all contracts and contract rights,
guarantees or other obligations in respect of such receivable or asset, lockbox accounts and records with respect to such account or asset and any other assets customarily transferred (or in respect of which security interests are customarily
granted) together with accounts or assets in connection with a securitization, factoring or receivable sale transaction.
“Securitization Facility” means any of one or more securitization, financing, factoring or sales transactions, as amended, supplemented, modified,
extended, renewed, restated or refunded from time to time, pursuant to which the Borrower or any of its Restricted Subsidiaries sells, transfers, pledges or otherwise conveys any Securitization Assets (whether now existing or arising in the
future) to a Securitization Subsidiary or any other Person.
“Securitization Fees” means distributions or payments made directly or by means of discounts with respect to any Securitization Asset or Receivables
Asset or participation interest therein issued or sold in connection with, and other fees, expenses and charges (including commissions, yield, interest expense and fees and expenses of legal counsel) paid in connection with, any Qualified
Securitization Financing or Receivables Facility.
“Securitization Repurchase Obligation” means any obligation of a seller of Securitization Assets or Receivables Assets in a Qualified Securitization
Financing or a Receivables Facility to repurchase or otherwise make payments with respect to Securitization Assets arising as a result of a breach of a representation, warranty or covenant or otherwise, including as a result of a receivable
or portion thereof becoming subject to any asserted defense, dispute, offset or counterclaim of any kind as a result of any action taken by, any failure to take action by or any other event relating to the seller.
“Securitization Subsidiary” means any Subsidiary of the Borrower in each case formed for the purpose of and that solely engages in one or more
Qualified Securitization Financings or Receivables Facilities and other activities reasonably related thereto or another Person formed for this purpose.
“
Security Agreement” means, collectively, the
Security Agreement, dated as of the Closing Date, executed by and among the Loan Parties party thereto and the Collateral Agent,
together with each other security agreement and Security Agreement Supplement executed and delivered pursuant to
Section 6.12,
6.14 or
6.16.
“Security Agreement Supplement” means the Security Agreement Supplements, as defined in the Security Agreement.
“SEMS” means the Superfund Enterprise Management System maintained by the U.S. Environmental Protection Agency.
“
Series LLC” shall mean any series of a limited liability company (including any protected or registered series) established in accordance with
Section 18-215(b) or
18-
218 of the Delaware Limited Liability Company Act or a comparable provision of any other Law.
“
Series LP” shall mean any series of a limited partnership (including any protected or registered series) established in accordance with
Section 17-218(b) or
17-
221 of the
Delaware Limited Partnership Act or a comparable provision of
any other Law.
“Settlement” means the transfer of cash or other property with respect to any credit or debit card charge, check or other instrument, electronic funds
transfer, or other type of paper-based or electronic payment, transfer, or charge transaction for which a Person acts as a processor, remitter, funds recipient or funds transmitter in the ordinary course of its business.
“Settlement Asset” means any cash, receivable or other property, including a Settlement Receivable, due or conveyed to a Person in consideration for a
Settlement made or arranged, or to be made or arranged, by such Person or an Affiliate of such Person.
“Settlement Indebtedness” means any payment or reimbursement obligation in respect of a Settlement Payment.
“Settlement Lien” means any Lien relating to any Settlement or Settlement Indebtedness (and may include, for the avoidance of doubt, the grant of a
Lien in or other assignment of a Settlement Asset in consideration of a Settlement Payment, Liens securing intraday and overnight overdraft and automated clearing house exposure, and similar Liens).
“Settlement Payment” means the transfer, or contractual undertaking (including by automated clearing house transaction) to effect a transfer, of cash
or other property to effect a Settlement.
“Settlement Receivable” means any general intangible, payment intangible, or instrument representing or reflecting an obligation to make payments to or
for the benefit of a Person in consideration for a Settlement made or arranged, or to be made or arranged, by such Person.
“
Similar Business” means
(a) any
businesses, services or activities engaged in by the Borrower or any of its Subsidiaries or any Associates on the Closing Date (after giving effect to the Transactions),
(b) any businesses, services and
activities engaged in by the Borrower or any of its Subsidiaries or any Associates that are related, complementary, incidental, ancillary or similar to any of the foregoing or are extensions or developments of any thereof and
(c) a Person conducting a business, service or activity specified in
clauses (a) and
(b), and any Subsidiary thereof. For the avoidance of doubt, any Person that
invests in or owns Capital Stock or Indebtedness of another Person that is engaged in a Similar Business shall be deemed to be engaged in a Similar Business.
“SOFR” means a rate equal to the secured overnight financing rate as administered by the SOFR Administrator.
“SOFR Administrator” means the NYFRB (or a successor administrator of the secured overnight financing rate).
“SOFR Administrator’s Website” means the NYFRB’s website, currently at http://www.newyorkfed.org, or any successor source for the secured overnight
financing rate identified as such by the SOFR Administrator from time to time.
“SOFR Determination Date” has the meaning specified in the definition of “Daily Simple SOFR”.
“SOFR Rate Day” has the meaning specified in the definition of “Daily Simple SOFR”.
“SOFR Borrowing” means, as to any Borrowing, the SOFR Loans comprising such Borrowing.
“SOFR Loan” means a Loan that bears interest at a rate based on Term SOFR, other than pursuant to clause (c) of the definition of “Alternate
Base Rate”.
“Sold Entity or Business” has the meaning specified in the definition of the term “Consolidated EBITDA”.
“
Solvent” means, with respect to the Borrower and its Restricted Subsidiaries on any date of determination, that on such date
(a)
the sum of the debt (including contingent liabilities) of such Person, taken as a whole, does not exceed the fair value of the present assets of the Borrower and its Restricted Subsidiaries, taken as a whole,
(b)
the fair salable value of the assets of the Borrower and the Restricted Subsidiaries, taken as a whole, is not less than the amount that will be required to pay the probable liabilities (including contingent liabilities) of the Borrower and
its Restricted Subsidiaries, taken as a whole, on their debts as they become absolute and matured,
(c) the capital of the Borrower and its Restricted Subsidiaries, taken as a whole, is not unreasonably small in
relation to the business of the Borrower and its Restricted Subsidiaries, taken as a whole, as contemplated on such date of determination and
(d) the Borrower and its Restricted Subsidiaries, taken as a whole, do
not intend to incur debts (including current obligations and contingent liabilities) beyond their ability to pay such debts as they mature in the ordinary course of business. The amount of contingent liabilities at any time shall be computed
as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
“SPC” has the meaning specified in Section 10.07(g).
“Specified Existing Tranche” has the meaning specified in Section 2.19(a).
“Specified Refinancing Agent” has the meaning specified in Section 2.18(a).
“Specified Refinancing Debt” has the meaning specified in Section 2.18(a).
“Specified Refinancing Revolving Credit Commitment” has the meaning
specified in Section 2.18(a).
“Specified Refinancing Revolving Loans” means Specified Refinancing Debt constituting revolving loans.
“Specified Refinancing Term Commitment” has the meaning specified in Section 2.18(a).
“Specified Refinancing Term Facilities” has the meaning specified in Section 2.18(a).
“Specified Refinancing Term Loans” means Specified Refinancing Debt constituting term loans.
“
Specified Representations” means the representations and warranties
made solely by the Borrower and the Guarantors in
Sections 5.01(a) and
(b)(ii) and
Sections 5.02(a),
5.04,
5.13,
5.17,
5.18,
5.19 and
5.20 (in the case of the representations and warranties made pursuant to
Sections 5.19 and
5.20, to be limited to the use of proceeds not violating the Laws referenced
therein).
“Spinco Business” has the meaning given to such term in the definition of “Transactions”.
“Spin-Off” has the meaning given to such term in the definition of “Transactions”.
“Spin-Off Date” has the meaning given to such term in the definition of “Transactions”.
“Standard Securitization Undertakings” means representations, warranties, covenants, guarantees and indemnities entered into by the Borrower or any of its Subsidiaries which the Borrower has determined in good faith to be customary
in a Securitization Facility or Receivables Facility, including those relating to the servicing of the assets of a Securitization Subsidiary, it being understood that any Securitization Repurchase Obligation shall be deemed to be a Standard
Securitization Undertaking or, in the case of a Receivables Facility, a non-credit related recourse accounts receivable factoring arrangement.
“
Stated Maturity” means, with respect to any security, the date
specified in such security as the fixed date on which the payment of principal of such security is due and payable, including pursuant to any mandatory redemption provision, but shall not include any contingent obligations to repay, redeem or
repurchase any such principal prior to the date originally
scheduled for the payment thereof.
“
Subject Lien” has the meaning specified in
Section 7.02.
“Subordinated Indebtedness” means any Indebtedness (other than
intercompany Indebtedness), whether outstanding on the Closing Date or thereafter incurred, which is expressly subordinated in right of payment to the Loans pursuant to a written agreement.
“Subsidiary” means, with respect to any Person:
(1) any corporation, association, or other business entity (other than a partnership, joint venture, limited liability company or similar entity) of which more than 50% of the total
voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time of determination owned or controlled, directly or
indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof;
(2) any partnership, joint venture, limited liability company or similar entity of which:
(a) more than 50% of the capital accounts, distribution rights, total equity and voting interests or general or limited partnership interests, as applicable, are
owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof whether in the form of membership, general, special or limited partnership interests or otherwise;
and
(b) such Person or any Subsidiary of such Person is a controlling general partner or otherwise controls such entity; or
(3) at the election of the Borrower, any partnership, joint venture, limited liability company or similar entity of which such Person or any Subsidiary of such Person is a controlling
general partner or otherwise controls such entity.
Unless otherwise indicated in this Agreement, all references to Subsidiaries shall mean Subsidiaries of the Borrower.
“Subsidiary Redesignation” has the meaning given to such term in the
definition of “Unrestricted Subsidiary”.
“Supplemental Agent” has the meaning specified in Section 9.14(a).
“
Swap Contract” means
(a) any and all
rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps
or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions,
cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such
transaction is governed by or subject to any master agreement, and
(b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any
form of master agreement published by the International Swaps and Derivatives Association, Inc., any
International Foreign
Exchange Master Agreement, or any other master agreement, including any obligations or liabilities under any such master agreement.
“
Swap Obligation” means, with respect to the Borrower or any
Subsidiary, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of
Section 1a(47) of the Commodity Exchange Act.
“Taxes” means all present and future taxes, levies, imposts, deductions, charges, duties, assessments, fees and withholdings (including backup
withholdings) and any other charges in the nature of a tax (including interest, penalties and other liabilities with respect thereto) that are imposed by any governmental or other taxing authority.
“Term Borrowing” means a borrowing of the same Type of Term Loan of a single Tranche from all Lenders having Term Commitments or Term Loans of the
respective Tranche on a given date (or resulting from a continuation or conversions of such date) having, if applicable, the same Interest Period.
“
Term B Loans” has the meaning specified in
Section 2.14(d)(ii)(E).
“
Term Commitment” means, as to each Term Lender,
(i) its Initial Term Commitment, (ii) its Term Commitment Increase,
(iii) its New Term Commitment or (iv) its Specified Refinancing Term Commitment. The amount of each Lender’s Initial Term Commitment is as set forth in the definition thereof and the amount of each Lender’s other Term Commitments shall be as
set forth in the Assignment and Assumption, or in the amendment or agreement relating to the respective Term Commitment Increase, New Term Commitment or Specified Refinancing Term Commitment pursuant to which such Lender shall have assumed
its Term Commitment, as applicable, as such amounts may be adjusted from time to time in accordance with this Agreement.
“Term Commitment Increase” has the meaning specified in Section 2.14(a).
“Term Facility” means a facility in respect of any Term Loan Tranche (including any Term Commitment Increase with respect to any Term Loan Tranche), as
the context may require.
“
Term Lender” means
(a) at any time on or prior to the Closing Date, any Lender that has an Initial Term Commitment at
such time and
(b) at any time after the Closing Date, any Lender that holds Term Loans and/or Term Commitments at such time.
“Term Loan” means an advance made by any Term Lender under any Term Facility (including, for the avoidance of doubt, the Initial Term Loans).
“Term Loan Tranche” means the respective facility and commitments utilized in making (or, where applicable, conversion of) Term Loans hereunder, with
there being one Tranche on the Closing Date (i.e., the Initial Term Loans and Initial Term Commitments). Additional
Term Loan Tranches may be added after the Closing Date pursuant to the terms hereof (e.g., New Term Loans, Specified Refinancing Term Loans, New Term Commitments, Extended Term Loans and Specified
Refinancing Term Commitments).
“Term Note” means, as applicable, any Term Notes and any other promissory note of the Borrower payable to any Term Lender or its registered assigns, in
substantially the form of Exhibit B-1, evidencing the indebtedness of the Borrower to such Term Lender resulting from the Term Loans under the same Term Loan Tranche made or held by such Term Lender.
“
Term SOFR” means, with respect to any SOFR Borrowing and for any tenor comparable to the applicable Interest Period, the Term SOFR Reference Rate at
approximately 5:00 a.m., Chicago time, two
(2) U.S. Government Securities Business Days prior to the commencement of such tenor comparable to the applicable Interest Period, as such rate is published by the CME
Term SOFR Administrator;
provided that if Term SOFR as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of this Agreement.
“
Term SOFR Reference Rate” means, for any day and time (such day, the “
Term SOFR Determination Day”), with
respect to any SOFR Borrowing and for any tenor comparable to the applicable Interest Period, the rate per annum published by the CME Term SOFR Administrator and identified by the Administrative Agent as the forward-looking term rate based on
SOFR. If by 5:00 p.m. (New York City time) on such Term SOFR Determination Day, the “Term SOFR Reference Rate” for the applicable tenor has not been published by the CME Term SOFR Administrator and a Benchmark Replacement Date with respect
to the Term SOFR has not occurred, then so long as such day is otherwise a U.S. Government Securities Business Day, the Term SOFR Reference Rate for such Term SOFR Determination Day will be the Term SOFR Reference Rate as published in respect
of the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate was published by the CME Term SOFR Administrator, so long as such first preceding U.S. Government Securities Business Day is not more than
five
(5) U.S. Government Securities Business Days prior to such Term SOFR Determination Day.
“Test Period” means the most recent period of four consecutive fiscal
quarters of the Restricted Group ended on or prior to such time (taken as one accounting period) in respect of which financial statements for each such quarter or fiscal year in such period are internally available (as determined in good
faith by the Borrower).
“Threshold Amount” means $75,000,000.
“Total Assets” means, as of any date, the total consolidated assets of the Borrower and its Restricted Subsidiaries on a consolidated basis, as shown
on the most recent consolidated balance sheet of the Borrower and its Restricted Subsidiaries, determined on a pro forma basis in a manner consistent with Section 1.10.
“Total Outstandings” means the aggregate Outstanding Amount of all
Loans and all L/C Obligations.
“Total Revolving Credit Outstandings” means the aggregate Outstanding Amount of all Revolving Credit Loans and L/C Obligations.
“
Tranche” means any Term Loan Tranche or any Revolving Tranche.
“Transaction Costs” has the meaning given to such term in clause
(iii) of the definition of “Transactions”.
“Transaction Documents” means that certain Separation and Distribution Agreement by and between MDU Resources and the Borrower, expected to be dated on
or about the Closing Date, and any other agreements entered into by the Borrower in connection with the Transactions.
“Transactions” means,
(i) internal reorganization transactions undertaken by MDU Resources, the Borrower and their respective Subsidiaries as a result of which the Borrower will hold, directly or through
its subsidiaries, the business, operations and activities of the construction services unit of MDU Resources as conducted as of immediately prior to the Spin-Off Date (the “Spinco Business”);
(ii) the Borrower
(a) obtaining the initial Facilities consisting of the initial Revolving Credit Facility and the initial Term Facility,
(b) lending or contributing a portion of the proceeds of the initial funding thereunder to Everus Construction, Inc., a Delaware corporation and a Wholly Owned Subsidiary of the Borrower and
(c) on the Closing Date or no later than one Business Day thereafter, the Borrower or one or more of its subsidiaries making one or more dividends, distributions, payments or other transfers to MDU and/or one or
more of its subsidiaries in an aggregate amount of up to $290,000,000 (the “
Closing Payment”);
(iii) the Borrower using a portion of the proceeds to pay the Borrower’s and its Subsidiaries’ fees, costs and expenses related to the Transactions (the “Transaction Costs”);
(iv) the distribution on a pro rata basis to equityholders of MDU Resources of
80.1% or more of the shares of equity interests of the Borrower (with cash
in lieu of fractional shares) with the Borrower holding, directly or through its subsidiaries, the Spinco Business (the consummation of the foregoing, the “
Spin-Off”, and the date of such consummation
of the Spin-Off, the “
Spin-Off Date”);
(v) the separation of the Spinco Business from MDU Resources and the consummation of the other transactions contemplated by the Transaction Documents;
(vi) the execution and performance of the agreements (along with
schedules and exhibits thereto) relating to the foregoing;
(vii) each of the transactions ancillary to the foregoing, including any distributions or other transfers of cash and/or other property or liabilities or provision of services by MDU
Resources or its Subsidiaries to the Borrower or its Subsidiaries, and vice versa; and(viii) the payment of the Transaction Costs.
“Treasury Capital Stock” has the meaning specified in Section 7.05(b)(2).
“Type” means, with respect to a Loan, its character as an ABR Loan or SOFR Loan.
“UCP” means the Uniform Customs and Practice for Documentary Credits, International Chamber of Commerce Publication No. 600 (or such later version
thereof as may be in effect at the applicable time).
“
UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the
United Kingdom Prudential Regulation Authority) or any person falling within IFPRU
11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which
includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
“UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK
Financial Institution.
“Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
“Undisclosed Administration” means in relation to a Lender or its
direct or indirect parent company, the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official by a supervisory authority or regulator under or based on the law in the
country where such Person is subject to home jurisdiction supervision if applicable law requires that such appointment is not to be publicly disclosed.
“
Unfunded Advances/Participations” means
(a)
with respect to the Administrative Agent, the aggregate amount, if any
(i) made available to the Borrower on the assumption that each Lender has made available to the Administrative Agent such Lender’s share of
the applicable Borrowing available to the Administrative Agent as contemplated by
Section 2.12(b) and (ii) with respect to which a corresponding amount shall not in fact have been returned to
the Administrative Agent by the Borrower or made available to the Administrative Agent by any such Lender and
(b) with respect to any L/C Issuer, the aggregate amount, if any, of amounts drawn under Letters of
Credit in respect of which a Revolving Credit Lender shall have failed to make Revolving Credit Loans or L/C Advances to reimburse such L/C Issuer pursuant to
Section 2.03(d).
“
Unfunded Pension Liability” means the excess of a Plan’s benefit liabilities under Section 4001(a) of ERISA over the current value of such Plan’s assets, determined in accordance with assumptions used for funding the Plan
pursuant to
Section 412 of the Code for the applicable plan year.
“Uniform Commercial Code” or “UCC” means the Uniform Commercial Code as the same may from time to time be in effect in the State of New York or the Uniform Commercial Code (or similar
code or statute) of another jurisdiction, to the extent it may be required to apply to any item or items of Collateral.
“United States” and “U.S.”
mean the United States of America.
“Unreimbursed Amount” has the meaning specified in Section 2.03(d)(i).
“
Unrestricted Cash and Cash Equivalents” means, as of any date of determination, cash or Cash Equivalents included on the consolidated balance sheet of
the Borrower and its Restricted Subsidiaries as of the end of the most recent fiscal period for which consolidated financial statements are available (which may, at the Borrower’s election, be internal financial statements) that
(1) would not appear as “restricted” on the consolidated balance sheet of the Borrower and its Restricted Subsidiaries or
(2) are restricted in favor of the Facilities (which may also
secure other Indebtedness secured by a
pari passu or junior Lien basis with the Facilities).
“Unrestricted Subsidiary” means:
(1) any Subsidiary of the Borrower that at the time of determination is an Unrestricted Subsidiary (as designated by the Borrower in the manner provided below);
and
(2) any Subsidiary of an Unrestricted Subsidiary.
The Borrower may designate any Subsidiary of the Borrower (other than the Borrower or any Subsidiary that directly or indirectly owns Capital Stock of the Borrower), (including any newly
acquired or newly formed Subsidiary or a Person becoming a Subsidiary through merger, consolidation or other business combination transaction, or Investment therein), to be an Unrestricted Subsidiary only if:
(1) at the time of such designation, such Subsidiary or any of its Subsidiaries does not own any Capital Stock of the Borrower or any other Subsidiary of the
Borrower which is not a Subsidiary of the Subsidiary to be so designated or otherwise an Unrestricted Subsidiary;
(2) such designation and the Investment, if any, of the Borrower in such Subsidiary complies with
Section 7.05; and
(3) such designation would not cause an Event of Default.
If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate fair market value of all outstanding Investments owned by the Borrower and its Restricted Subsidiaries in
the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments pursuant to
Section 7.05
or under one or more clauses of the definition of Permitted Investments, as determined by the Borrower. That designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise
meets the definition of an Unrestricted Subsidiary. The Borrower may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause an Event of Default (such redesignation, a “
Subsidiary Redesignation”).
Any designation of a Subsidiary of the Borrower as an Unrestricted Subsidiary will be evidenced to the Administrative Agent by delivering to the Administrative Agent a certificate of a
Responsible Officer certifying that such designation complies with the preceding conditions and was not prohibited by
Section 7.05. If, at any time, any Unrestricted Subsidiary would fail to meet the
preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Agreement and any Indebtedness and Liens of such Subsidiary will be deemed to be incurred by a Restricted
Subsidiary as of such date and, if such Indebtedness or Liens are not permitted to be incurred as of such date under
Section 7.01, the Borrower will be in default of such covenant.
The Borrower may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary;
provided that such designation will be deemed to be
an incurrence of Indebtedness and Liens by a Restricted Subsidiary of any outstanding Indebtedness and Liens of such Unrestricted Subsidiary, and such designation will only be permitted if
(1) such Indebtedness
is permitted under
Section 7.01 (including pursuant to
clause (b)(5) thereof treating such redesignation as an acquisition for the purpose of such clause), calculated on a pro forma
basis as if such designation had occurred at the beginning of the applicable reference period; and (2) no Event of Default pursuant to
Sections 8.01(a),
(f) or
(g) would be in existence following such designation. Any such designation by the Borrower shall be evidenced to the Administrative Agent by delivering to the Administrative Agent a certificate of a
Responsible Officer certifying that such designation complies with the preceding conditions.
Notwithstanding anything else herein to the contrary,
(a) the Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, sell, convey,
transfer or otherwise dispose of (including pursuant to an Investment) any Material Intellectual Property that is owned by, or exclusively licensed to, the Borrower or any Restricted Subsidiary to any Unrestricted Subsidiary and
(b) the Borrower may not designate any Restricted Subsidiary as an Unrestricted Subsidiary to the extent that such Restricted Subsidiary or any of its Subsidiaries owns, licenses or otherwise holds any legal right
in any Material Intellectual Property.
“Unsecured Specified Debt” means Indebtedness in respect of any Term Facility (including, for the avoidance of doubt, any New Term Facility), any
Revolving Credit Facility (including, for the avoidance of doubt, any New Revolving Facility), any other loans incurred pursuant to any Loan Document, any Incremental Equivalent Debt, any Ratio Debt, any Permitted Debt Exchange Notes, any
Specified Refinancing Debt, any Credit Agreement Refinancing Debt, any Refinancing Indebtedness in respect of any of the foregoing, in each case, that is unsecured.
“
U.S. Government Securities Business Day” means any day except for
(a) a Saturday,
(b) a
Sunday or
(c) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United
States government securities.
“U.S. Person” means any Person that is a “United States person” as defined in Section 7701(a)(30) of the Code.
“U.S. Subsidiary” means any Subsidiary of the Borrower that is
organized under the laws of any jurisdiction within the United States of America (but not, for the avoidance of doubt, any territory thereof).
“U.S. Tax Compliance Certificate” has the meaning assigned to such term in Section 3.01(h)(ii)(B)(3).
“
Voting Stock” of any Person as of any date means the Capital Stock of
such Person that is at the time entitled to vote (without regard to the occurrence of any contingency) in the election of the Board of Directors of such Person. When referring to a CFC or FSHCO, the term Voting Stock shall be interpreted in
a manner consistent with Treasury Regulations
Section 1.956-2(c)(2).
“Weighted Average Life to Maturity” means, when applied to any
Indebtedness at any date, the quotient (in number of years) obtained by dividing:
(1) the sum of the products obtained by multiplying
(i) the number of years (calculated to the nearest one-twelfth) from the date of determination to the
date of each successive
scheduled principal payment of such Indebtedness or redemption or similar payment with respect to such Disqualified Stock or Preferred Stock, by (ii) the amount of such payment, by
(2) the sum of all such payments;
provided that, for purposes of determining the Weighted Average Life to Maturity of any Indebtedness, the effects of any prepayments or amortization
made on such Indebtedness prior to the date of such determination will be disregarded.
“Wholly Owned Restricted Subsidiary” means any Wholly Owned Subsidiary that is a Restricted Subsidiary.
“
Wholly Owned Subsidiary” of any Person means a direct or indirect Subsidiary of such Person
100.0% of the outstanding Capital Stock or other ownership interests of which (other than
directors’ qualifying shares or shares or interests required to be held by foreign nationals or other third parties to the extent required by applicable law) shall at the time be owned by such Person or by one or more Wholly Owned
Subsidiaries of such Person. Unless otherwise indicated in this Agreement, all references to Wholly Owned Subsidiaries shall mean Wholly Owned Subsidiaries of the Borrower.
“Withholding Agent” means any Loan Party and the Administrative Agent
or any other withholding agent under applicable Law.
“
Write-Down and Conversion Powers” means,
(a) with respect to any EEA Resolution Authority, the write-down and
conversion powers of such EEA Resolution Authority from time to time under the Bail‑In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule and
(b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or
any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have
effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
“Yen” means freely transferable lawful money of Japan (expressed in Yen).
Section 1.02 Other Interpretive Provisions. With reference to this Agreement and each other Loan
Document, unless otherwise specified herein or in such other Loan Document:
(a) The meanings of defined terms are equally applicable to the singular and plural forms of the defined terms.
(b) The words “herein,” “hereto,” “hereof” and “hereunder” and words of similar import when used in any Loan
Document shall refer to such Loan Document as a whole and not to any particular provision thereof.
(c) References in this Agreement to an Exhibit, Schedule, Article, Section, clause or subclause refer
(A) to the appropriate Exhibit or Schedule to, or Article, Section, clause or subclause in this Agreement or
(B) to the extent such references are not present in this Agreement, to the
Loan Document in which such reference appears.
(d) The terms “including,” “include” and “includes” are by way of example and shall
be deemed to be followed by the phrase “without limitation”.
(e) The term “documents” includes any and all instruments, documents, agreements, certificates, notices, reports,
financial statements and other writings, however evidenced, whether in physical or electronic form.
(f) Any reference herein to any Person shall be construed to include such Person’s successors and assigns.
(g) In the computation of periods of time from a specified date to a later
specified date, the word “from” means “from and including;” the words “to” and “until” each mean “to but excluding;” and the word “through” means “to and including”.
(h) Section headings herein and in the other Loan Documents are included for convenience of reference only and
shall not affect the interpretation of this Agreement or any other Loan Document.
(i) When calculating the availability under any basket or ratio under this Agreement or compliance with any
provision of this Agreement which requires the calculation of a basket or ratio in connection with any Limited Condition Transaction and any actions or transactions related thereto (including acquisitions, Investments, the incurrence,
issuance or assumption of Indebtedness and the use of proceeds thereof, the incurrence or creation of Liens, repayments, Restricted Payments and Asset Dispositions), in each case, at the option of the Borrower (the Borrower’s election to
exercise such option, an “
LCT Election”), the date of determination for availability under any such basket or ratio and whether any such action or transaction is permitted (or any requirement or
condition therefor is complied with or satisfied (including as to the absence of any continuing Default or Event of Default (other than in connection with testing the satisfaction of any conditions to the making any L/C Credit Extension or
any Revolving Credit Borrowing with respect to the Revolving Credit Commitments that exist on the Closing Date))) or whether any representations and warranties (or any specified representations and warranties) are true and correct (other than
in connection with testing the satisfaction of any conditions to the making of any L/C Credit Extension or any Revolving Credit Borrowing with respect to Revolving Credit Commitments that exist on the
Closing
Date) under this Agreement shall be deemed to be the date (the “
LCT Test Date”) either
(a) the definitive agreement (or other
relevant definitive documentation) for such Limited Condition Transaction is entered into (or, if applicable, the date of delivery of an irrevocable declaration of a Restricted Payment or similar event or the date of any notice, which may be
conditional, of such a repayment, repurchase or refinancing of Indebtedness is given to the holders of such Indebtedness), or
(b) solely in connection with an acquisition to which the
United Kingdom City Code on
Takeovers and Mergers applies, the date on which a “Rule
2.7 announcement” of a firm intention
to make an offer (or equivalent announcement in another jurisdiction) (an “
LCT Public Offer”) in respect of a target of a Limited Condition Transaction and, in each case, if, after giving pro forma
effect to the Limited Condition Transaction and any actions or transactions related thereto (including acquisitions, Investments, the incurrence, issuance or assumption of Indebtedness and the use of proceeds thereof, the incurrence or
creation of Liens, repayments, Restricted Payments and Asset Dispositions) and any related pro forma adjustments as if they had occurred at the beginning of the most recent Test Period ended prior to the LCT Test Date, the Borrower or any of
its Restricted Subsidiaries would have been permitted to take such actions or consummate such transactions on the relevant LCT Test Date in compliance with such ratio, test or basket (and any related requirements and conditions), such ratio,
test or basket (and any related requirements and conditions) shall be deemed to have been complied with (or satisfied) for all purposes (in the case of Indebtedness, for example, whether such Indebtedness is committed, issued, assumed or
incurred at the LCT Test Date or at any time thereafter);
provided that
(a) if financial statements for one or more subsequent fiscal quarters shall have become
available, the Borrower may elect, in its sole discretion, to redetermine all such ratios, tests or baskets on the basis of such financial statements, in which case, such date of redetermination shall thereafter be the applicable LCT Test
Date for purposes of such ratios, tests or baskets,
(b) except as contemplated in the foregoing
clause (a), compliance with such ratios, test or baskets (and any related requirements and conditions) shall
not be determined or tested at any time after the applicable LCT Test Date for such Limited Condition Transaction and any actions or transaction related thereto (including acquisitions, Investments, the incurrence, issuance or assumption of
Indebtedness and the use of proceeds thereof, the incurrence or creation of Liens, repayments, Restricted Payments and Asset Dispositions) and
(c) Consolidated Cash Interest Expense will be calculated using an
assumed interest rate as reasonably determined by the Borrower.
For the avoidance of doubt, if the Borrower has made an LCT Election:
(1) if any of the ratios, tests or baskets for which compliance was determined or tested as of the LCT Test Date would at any time after the LCT Test Date have been exceeded or
otherwise failed to have been complied with as a result of fluctuations in any such ratio, test or basket, including due to fluctuations in EBITDA or Total Assets of the Borrower or the Person subject to such Limited Condition Transaction,
such baskets, tests or ratios will not be deemed to have been exceeded or failed to have been complied with as a result of such fluctuations;
(2) any change to the applicable exchange rate utilized in calculating compliance with any Dollar‑based provision of this Agreement, at any time from and after the LCT Test Date to
the date of consummation of such Investment, acquisition or repayment, repurchase or refinancing of Indebtedness, will not be taken into account for purposes of determining
(x) whether any Indebtedness or Lien
that is being incurred in connection with such Investment, acquisition or repayment, repurchase or refinancing of Indebtedness is permitted, or
(y) compliance by any Restricted Group Member with any other
provision of the Loan Documents;
(3) if any related requirements and conditions (including as to the absence of any continuing Default or Event of Default) for which compliance or satisfaction was determined or tested
as of the LCT Test Date would at any time after the LCT Test Date not have been complied with or satisfied (including due to the occurrence or continuation of a Default or an Event of Default), such requirements and conditions will not be
deemed to have been failed to be complied with or satisfied (and such Default or Event of Default shall be deemed not to have occurred or be continuing);
(4) for purposes of determining whether the bring down of representations and warranties (or specified representations and warranties) in connection with any such Investment,
acquisition or repayment, repurchase or refinancing of Indebtedness, as applicable, are true and correct, such condition shall be deemed satisfied so long as such representation and warranties, as applicable, are true and correct in all
material respects on the LCT Test Date; and
(5) in calculating the availability under any ratio, test or basket in connection with any action or transaction unrelated to such Limited Condition Transaction following the
relevant LCT Test Date and prior to the earlier of the date on which such Limited Condition Transaction is consummated or the date that the definitive agreement or date for redemption, purchase or repayment specified in an irrevocable notice
for such Limited Condition Transaction is terminated, expires or passes (or, if applicable, the irrevocable notice is terminated, expires or passes or, as applicable, the offer in respect of an LCT Public Offer for, such acquisition is
terminated), as applicable, without consummation of such Limited Condition Transaction, any such ratio, test or basket shall be determined or tested giving pro forma effect to such Limited Condition Transaction.
(j) For the purposes of
Sections 2.05(b)(i),
6.12,
7.03,
7.04
and
7.05, an allocation of assets to a division of a Restricted Subsidiary that is a limited liability company, or an allocation of assets to a series of a Restricted Subsidiary that is a limited liability company, shall be treated as
a transfer of assets from one Restricted Subsidiary to another Restricted Subsidiary.
(k) Any transaction or event shall be considered “permitted by” or made “in accordance with” or “in compliance
with” this Agreement or any particular provision hereof if such transaction or event is not expressly prohibited by this Agreement or such provision, as the case may be.
(l) Notwithstanding anything to the contrary herein, in the event an item of Indebtedness (or any portion
thereof) is incurred or issued, any Lien is incurred or other transaction is undertaken in reliance on any ratio based exceptions, thresholds and baskets, such ratio(s) shall be calculated with respect to such incurrence, issuance or other
transaction without giving effect to amounts being utilized under any other exceptions, thresholds or baskets (other than ratio based baskets) on the same date. Each item of Indebtedness that is incurred or issued, each Lien incurred and each
other transaction undertaken will be deemed to have been incurred, issued or taken first, to the extent available, pursuant to the relevant ratio based test.
(m) Notwithstanding anything to the contrary
herein, in the event an item of Indebtedness (or any portion thereof) is incurred or issued, any Lien is incurred or other transaction is undertaken in reliance on any ratio based exceptions, thresholds and baskets, such ratio(s) shall be
calculated such that, with respect to borrowings under the Revolving Credit Facility, such ratio(s) shall include the daily average of such borrowings over the portion of the fiscal quarter in which
the applicable calculation occurs and the immediately preceding three quarters and not the borrowings under the Revolving Credit Facility on the applicable date of determination.
Section 1.03 Accounting
Terms.
(a) All financial statements and all financial data required to be submitted pursuant to this Agreement shall be
prepared in conformity with GAAP, as in effect from time to time, and all terms of an accounting or financial nature shall be construed and interpreted in accordance with GAAP, as in effect on the date hereof.
(b) If at any time any change in GAAP or the application thereof would affect the computation or interpretation
of any financial ratio, basket, requirement or other provision set forth in any Loan Document, and either the Borrower or the Required Lenders shall so request, the Administrative Agent and the Borrower shall negotiate in good faith to amend
such ratio, basket, requirement or other provision to preserve the original intent thereof in light of such change in GAAP or the application thereof (subject to the approval of the Required Lenders, such consent not to be unreasonably
withheld, conditioned or delayed) (
provided that any change affecting the computation of the ratio set forth in
Section 7.08 shall be subject solely to
the approval of the Required Revolving Lenders (not to be unreasonably withheld, conditioned or delayed) and the Borrower);
provided that, until so amended,
(i) such
ratio, basket, requirement or other provision shall continue to be computed or interpreted in accordance with GAAP or the application thereof prior to such change therein or (ii) the Borrower may elect to fix GAAP (for purposes of such ratio,
basket, requirement or other provision) as of another later date notified in writing to the Administrative Agent from time to time.
(c) Notwithstanding anything to the contrary contained herein, all such
financial statements shall be prepared, and all financial covenants contained herein or in any other Loan Document shall be calculated, in each case, without giving effect to any election under FASB ASC 825 (or
any similar accounting principle) permitting a Person to value its financial liabilities at the fair value thereof.
Section 1.04 Rounding. Under this Agreement, any financial ratios required to be maintained or satisfied in order for a
specific action to be permitted shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result
up or down to the nearest number (with a rounding-up if there is no nearest number).
Section 1.05 References to Agreements and Laws. Unless otherwise expressly provided herein,
(a)
references to Organization Documents, agreements (including the Loan Documents) and other contractual instruments shall be deemed to include all subsequent amendments, restatements, extensions, supplements and other modifications thereto, but
only to the extent that such amendments, restatements, extensions, supplements and other modifications are permitted by any Loan Document and
(b) references to any Law shall include all statutory and regulatory
provisions consolidating, amending, replacing, supplementing or interpreting such Law.
Section 1.06 Times of Day. Unless otherwise specified, all references herein to times of day shall be references to Chicago time
(daylight savings or standard, as applicable).
Section 1.07 Timing of Payment or Performance. When the payment of any obligation or the performance of any covenant, duty or
obligation is stated to be due or performance required on a day which is not a Business Day, the date of such payment (other than as specifically provided in
Section 2.12 or as described in
the definition of Interest Period) or performance shall extend to the immediately succeeding Business Day.
Section 1.08 Currency
Equivalents Generally.
(a) Any amount specified in this Agreement (other than in
Articles II,
IX
and
X or as set forth in
clause (b) of this
Section 1.08) or any of the other Loan Documents to be in Dollars shall also include the equivalent of such amount in any currency
other than Dollars, such equivalent amount (the “
Agent’s Spot Rate of Exchange”) to be determined at the rate of exchange for the purchase of Dollars with the Alternative Currency or other currency in
the London foreign exchange market at or about 11:00 a.m. London time (or New York City time, as applicable) on a particular day as displayed by Reuters as the “ask price” or as displayed on such other information service which publishes that
rate of exchange from time to time in place of Reuters (or if such service ceases to be available, the equivalent of such amount in Dollars as determined by reference to such other publicly available service for displaying exchange rates as
may be agreed upon by the Administrative Agent and the Borrower, or, in the absence of such agreement, such rate shall instead be the arithmetic average of the spot rates of exchange of the Administrative Agent in the market where its foreign
currency exchange operations in respect of such currency are then being conducted, at or about 9:00 a.m. (Chicago time) on such date for the purchase of Dollars for delivery two (2) Business Days later);
provided
that if any basket is exceeded solely as a result of fluctuations in applicable currency exchange rates after the last time such basket was utilized, such basket will not be deemed to have been exceeded solely as a result of such fluctuations
in currency exchange rates.
(b) For purposes of determining the Consolidated First Lien Net Leverage Ratio, the Consolidated Interest Coverage
Ratio and the Consolidated Total Net Leverage Ratio, amounts of Indebtedness denominated in a currency other than Dollars will be converted to Dollars
(i) for the purposes of testing the Financial Covenants, at
the exchange rate consistent with that used to calculate consolidated net income in the most recent financial statements of the Borrower upon which such calculations were based and (ii) for any other purpose, at the exchange rate as of the
date of determination;
provided that, at the option of the Borrower, if any Restricted Group Member has entered into any currency Swap Contracts in respect of any borrowings, the Dollar amount of such
borrowings shall be determined by first taking into account the effects of that currency Swap Contract.
(c) Notwithstanding anything to the contrary in this Agreement,
(i) any
representation or warranty that would be untrue or inaccurate, (ii) any undertaking that would be breached or (iii) any event that would constitute a Default or an Event of Default, in each case, solely as a result of fluctuations in
applicable currency exchange rates, shall not be deemed to be untrue, inaccurate, breached or so constituted, as applicable, solely as a result of such fluctuations in currency exchange rates.
Section 1.09 Letter of Credit Amounts. Unless otherwise specified
herein, the amount of a Letter of Credit at any time shall be deemed to be the amount available to be drawn under such Letter of Credit during the remaining life of such Letter of Credit;
provided,
however, that if any presentation of drawing documents shall have been made on or prior to the expiration date of such Letter of Credit and the applicable L/C Issuer shall not yet have honored such drawing
or given notice of dishonor, the amount of such Letter of Credit that is the subject of such drawing shall be treated as still outstanding.
Section 1.10 Pro Forma Calculations. (a) For any events described below that occur subsequent to the commencement of a period for
which the financial effect of such events is being calculated, and giving effect to the events for which such calculation is being made, such calculation will give pro forma effect to such events as if such events occurred on the first day of
the most recent Test Period ended on or before the occurrence of such event (the “Reference Period”):
(i) the incurrence, assumption, guarantee, redemption, defeasance, retirement or extinguishment of any Indebtedness (other than
Indebtedness incurred under any revolving credit facility unless such Indebtedness has been permanently repaid and has not been replaced), the incurrence of any Reserved Indebtedness Amount and/or the issuance, repurchase or redemption of
Disqualified Stock or Preferred Stock;
(ii) the making of
any Investments, acquisitions, dispositions, Asset Disposition, mergers, amalgamations,
consolidations, operational changes, business expansions and disposed or discontinued operations;
provided that for the avoidance of doubt, at the Borrower’s option, notwithstanding any classification
under GAAP of any Person, property, business or asset as discontinued operations, no pro forma effect shall be given to any discontinued operations (and the income or loss attributable to such Person, property, business or asset shall not be
excluded for any purposes hereunder) until such disposition shall have been consummated;
(iii) operational changes or restructurings of the business of the Borrower or any of its Subsidiaries that
the Borrower or such Subsidiary, as applicable, has determined to make and/or made during or subsequent to such Reference Period which are expected to have a continuing impact and are factually supportable, which would include cost savings
resulting from head count reduction, closure of facilities and other operational changes and other cost savings in connection therewith; and
(iv) the designation of any Restricted Subsidiary as an Unrestricted Subsidiary or the designation of any Unrestricted Subsidiary as a
Restricted Subsidiary.
(b) For purposes of this
Section 1.10, whenever pro forma
effect is to be given to a transaction (including the Transactions), the pro forma calculations shall be made in good faith by a Responsible Officer of the Borrower (and may include, for the avoidance of doubt, cost savings, operating expense
reductions and synergies resulting from such transactions which is being given pro forma effect;
provided that the aggregate amount of cost
savings, operating expense reductions and synergies added to Consolidated EBITDA pursuant to this Section 1.10 (combined with the aggregate amount of cost savings, operating expense reductions and synergies added to Consolidated
EBITDA pursuant to clause (1)(g) of the definition of Consolidated EBITDA) shall not exceed 30% of Consolidated EBITDA for any four fiscal quarter period (determined after giving effect thereto and all other adjustments and addbacks);
provided, further, that in each case of
this clause (b) and clause (1)(g) of the definition of Consolidated EBITDA, such 30% cap shall not apply to any such adjustments that (A) are of the
type that would be permitted to be included in pro forma financial statements prepared in accordance with Regulation S-X under the Securities Act or
(B) are otherwise in connection with or
related to the Transactions). If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on
the date on which the relevant calculation is being made had been the applicable rate for the entire reference period (taking into account any Swap Obligations applicable to such Indebtedness). Interest on a Finance Lease Obligation shall be
deemed to accrue at an interest rate reasonably determined by a Responsible Officer of the Borrower to be the rate of interest implicit in such Finance Lease Obligation in accordance with GAAP. For purposes of making the computation referred
to above, interest on any Indebtedness under a revolving credit facility computed with a pro forma basis shall be computed based upon the
daily average of borrowings over the portion of the fiscal quarter
in which the applicable calculation occurs and the immediately preceding three quarters and not the borrowings under such revolving credit facility on the applicable date of determination. Interest on Indebtedness that may
optionally be determined at an interest rate based upon a factor of a prime or similar rate, a SOFR-based rate, a eurocurrency interbank offered rate, or other rate, shall be determined to have been based upon the rate actually chosen, or if
none, then based upon such optional rate chosen as the Borrower may designate.
(c) Notwithstanding the foregoing, when calculating the Consolidated First Lien Net Leverage Ratio and/or
Consolidated Interest Coverage Ratio for purposes of determining actual compliance (and not pro forma compliance or compliance on a pro forma basis) with the Financial Covenants, any transaction and any related pro forma adjustment
contemplated in this
Section 1.10 (and corresponding provisions of the definition of Consolidated EBITDA) that occurred subsequent to the end of the applicable four quarter period shall not be
given pro forma effect.
Section 1.11 Calculation of Baskets. If any of the baskets set forth in this Agreement are
exceeded solely as a result of fluctuations to LTM EBITDA and/or Total Assets for the most recently completed fiscal quarter after the last time such baskets were calculated for any purpose under this Agreement, such baskets will not be
deemed to have been exceeded solely as a result of such fluctuations.
Section 1.12 Calculation of Ratios. For all purposes under this Agreement, including for purposes of calculating the Consolidated First Lien Net Leverage Ratio, the
Consolidated Total Net Leverage Ratio or the Consolidated Interest Coverage Ratio, as applicable, in connection with the incurrence, issuance or assumption of any Indebtedness or the incurrence or creation of any Lien pursuant to the
definition of “Permitted Liens,” the Borrower may elect, at its option, to treat all or any portion of the committed amount of any Indebtedness (and the issuance and creation of letters of credit and bankers’ acceptances thereunder) which is
to be incurred (or any commitment in respect thereof) or secured by such Lien, as applicable (any such committed amount elected until revoked as described below, the “
Reserved Indebtedness Amount”), as
being incurred as of such election date, and, if such Consolidated First Lien Net Leverage Ratio, Consolidated Total Net Leverage Ratio, Consolidated Interest Coverage Ratio or other provision of this Agreement, as applicable, is complied
with (or satisfied) with respect thereto on such election date, any subsequent borrowing or reborrowing thereunder (and the issuance and creation of letters of credit and bankers’ acceptances thereunder) will be deemed to be permitted under
this Agreement, whether or not the Consolidated First Lien Net Leverage Ratio, Consolidated Total Net Leverage Ratio, Consolidated Interest Coverage Ratio or other provision of this Agreement, as applicable, at the actual time of any
subsequent borrowing or reborrowing (or issuance or creation of letters of credit or bankers’ acceptances thereunder) is complied with (or satisfied) for all purposes (including as to the absence of any continuing Default or Event of
Default);
provided that for purposes of subsequent calculations of the Consolidated First Lien Net Leverage Ratio, the Consolidated Total Net Leverage Ratio or the Consolidated Interest Coverage Ratio
or such other provision of this Agreement, as applicable, the Reserved Indebtedness Amount shall be deemed to be outstanding, whether or not such amount is actually outstanding, for so long as such commitments are outstanding or until the
Borrower revokes an election of a Reserved Indebtedness Amount.
Section 1.13 Interest Rates; Benchmark
Notification. The interest rate on a Loan denominated in dollars may be derived from an interest rate benchmark that may be discontinued or is, or may in the future become, the subject of regulatory reform. Upon the
occurrence of a Benchmark Transition Event,
Section 3.04(b) provides a mechanism for determining an alternative rate of interest. The Administrative Agent does not warrant or accept any
responsibility for, and shall not have any liability with respect to, the administration, submission, performance or any other matter related to any interest rate used in this Agreement, or with respect to any alternative or successor rate
thereto, or replacement rate thereof, including without limitation, whether the composition or characteristics of any such alternative, successor or replacement reference rate will be similar to, or produce the same value or economic
equivalence of, the existing interest rate being replaced or have the same volume or liquidity as did any existing interest rate prior to its discontinuance or unavailability. The Administrative Agent and its affiliates and/or other related
entities may engage in transactions that affect the calculation of any interest rate used in this Agreement or any alternative, successor or alternative rate (including any Benchmark Replacement) and/or any relevant adjustments thereto, in
each case, in a manner adverse to the Borrower. The Administrative Agent may select information sources or services in its reasonable discretion to ascertain any interest rate used in this Agreement, any component thereof, or rates
referenced in the definition thereof, in each case pursuant to the terms of this Agreement, and shall have no liability to the Borrower, any Lender or any other person or entity for damages of any kind, including direct or indirect, special,
punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such
information source or service.
ARTICLE II
THE COMMITMENTS AND CREDIT EXTENSIONS
(a) The Initial Term Borrowing. Subject to the terms and conditions set forth herein, each Initial Term
Lender severally agrees to make to the Borrower a single loan denominated in Dollars (the “
Initial Term Loans”) on the Closing Date in an amount not to exceed such Initial Term Lender’s Initial Term
Commitment. The Initial Term Borrowing shall consist of Initial Term Loans made simultaneously by the Initial Term Lenders in accordance with their respective Initial Term Commitments. Amounts borrowed under this
Section 2.01(a) and
subsequently repaid or prepaid may not be reborrowed (it being understood, however, that prepayments will be taken into account for purposes of any Prepayment-Based Incremental Facility to the extent provided by
Section 2.14). Initial Term Loans may be ABR Loans or SOFR Loans as further provided herein.
(b) The Revolving Credit Borrowings. Subject to the terms and conditions set
forth herein, each Revolving Credit Lender severally agrees to make Revolving Credit Loans denominated in Dollars to the Borrower from time to time on a revolving basis on and after the Closing Date on any Business Day until and excluding the
Business Day preceding the Maturity Date for the Revolving Credit Facility, in an aggregate amount not to exceed at any time outstanding the amount of such Lender’s Initial Revolving Credit Commitment;
provided,
however, that after giving effect to any Revolving Credit Borrowing,
(x) the Total Revolving Credit Outstandings shall not exceed the aggregate amount of Initial Revolving
Credit Commitments and
(y) the aggregate Pro Rata Share of the Outstanding Amount of the Revolving Credit Loans of any Lender,
plus such Lender’s Pro Rata Share of the
Outstanding Amount of all L/C Obligations shall not exceed the aggregate amount of such Lender’s Initial Revolving Credit Commitment. Within the limits of each Lender’s Revolving Credit Commitment, and subject to the other terms and
conditions hereof, the Borrower may borrow under this
Section 2.01(b), prepay under
Section 2.05, and reborrow under this
Section 2.01(b). Revolving Credit Loans may be ABR
Loans or SOFR Loans. To the extent that any portion of the Revolving Credit Facility has been refinanced with one or more new revolving credit facilities constituting Specified Refinancing Debt, each Revolving Credit Borrowing (including any
deemed Revolving Credit Borrowings made pursuant to
Section 2.03) shall be allocated pro rata among the Revolving Tranches.
(c) After the Closing Date, subject to the terms and conditions set forth herein,
each Lender with a Term Commitment (other than an Initial Term Commitment) with respect to any Tranche of Term Loans (other than Initial Term Loans) pursuant to any Term Commitment Increase, New Term Commitment or Specified Refinancing Term
Commitment, as applicable, severally agrees to make a Term Loan under such Tranche to the Borrower of such Tranche as set forth in the amendment or agreement relating to the respective Term Commitment Increase, New Term Commitment or
Specified Refinancing Term Commitment pursuant to which such Lender shall have assumed its Term Commitment, as applicable.
(d) After the Closing Date, subject to the terms and conditions set forth herein, each Revolving Credit Lender
with a Revolving Credit Commitment pursuant to any Revolving Credit Commitment Increase, New Revolving Commitment or Specified Refinancing Revolving Credit Commitment, as applicable, severally agrees to make Revolving Credit Loans to the
Borrower as set forth in the amendment or agreement relating to the respective Revolving Credit Commitment Increase, New Revolving Commitment or Specified Refinancing Revolving Credit Commitment pursuant to which such Lender shall have
assumed its Revolving Credit Commitment, as applicable.
Section 2.02 Borrowings,
Conversions and Continuations of Loans.
(a) Each Term Borrowing, each Revolving Credit Borrowing, each conversion of Term Loans or Revolving Credit
Loans from one Type to another, and each continuation of SOFR Loans shall be made upon irrevocable notice by the Borrower to the Administrative Agent. Each such notice must be in writing and must be received by the Administrative Agent not
later than
(i) 11:00 a.m. (Chicago time) three
(3) U.S. Government Securities Business Days prior to the requested date of any Borrowing of, conversion of ABR Loans to, or
continuation of (as applicable), SOFR Loans and (ii) 11:00 a.m. (Chicago time) on the requested date of any Borrowing of ABR Loans or of any conversion of SOFR Loans to ABR Loans. Each notice pursuant to this
Section 2.02(a) shall be
delivered to the Administrative Agent in the form of a written Committed Loan Notice, appropriately completed and signed by a Responsible Officer of the Borrower.
(b) Each Borrowing of, conversion to or continuation of SOFR Loans shall be
(i) in a principal amount of $1,000,000, or (ii) a whole multiple of $100,000 in excess thereof. Except as provided in Section 2.03(d), each Borrowing of, or conversion to, ABR Loans shall be (i) in a principal amount of $1,000,000 or (ii) a whole multiple of $100,000 in excess thereof. Subject to Section 3.04, Loans shall be required to be maintained as SOFR Loans or ABR Loans.
Each Committed Loan Notice shall specify
(i) whether the Borrower is requesting a Term Borrowing, a Revolving Credit Borrowing, a conversion of a Tranche of Term
Loans or Revolving Credit Loans from one Type to another, or a continuation of SOFR Loans, (ii) the requested date of the Borrowing, conversion or continuation, as applicable (which shall be a Business Day), (iii) the principal amount of
Loans to be borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to which existing Tranche of Term Loans or Revolving Credit Loans are to be converted and
(v) if applicable, the duration of
the Interest Period with respect thereto. If, with respect to any SOFR Loans, the Borrower fails to specify a Type of Loan in a Committed Loan Notice or if the Borrower fails to give a timely notice requesting a conversion or continuation,
then the applicable Tranche of Term Loans or Revolving Credit Loans shall be made as, or converted to, SOFR Loans with an Interest Period of one month. Any such automatic conversion or continuation pursuant to the immediately preceding
sentence shall be effective as of the last day of the Interest Period then in effect with respect to the applicable SOFR Loans. If the Borrower requests a Borrowing of, conversion to, or continuation of SOFR Loans in any such Committed Loan
Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month.
(c) Following receipt of a Committed Loan Notice, the Administrative Agent shall promptly notify each applicable
Lender of the amount of its Pro Rata Share of the applicable Tranche of Term Loans or Revolving Credit Loans, and if no timely notice of a conversion or continuation of SOFR Loans is provided by the Borrower, the Administrative Agent shall
notify each Lender of the details of any automatic conversion to SOFR Loans, with an Interest Period of one month as described in
Section 2.02(a). In the case of a Term Borrowing or a Revolving Credit Borrowing, each Appropriate
Lender shall make the amount of its Loan available to the Administrative Agent in immediately available funds at the Administrative Agent’s Office not later than 2:00 p.m. (Chicago time) on the Business Day specified in the applicable
Committed Loan Notice. Each Lender may, at its option, make any Loan available to the Borrower by causing any foreign or domestic branch or Affiliate of such Lender to make such Loan;
provided that
any exercise of such option shall not affect the obligation of the Borrower to repay such Loan in accordance with the terms of this Agreement. Upon satisfaction of the applicable conditions set forth in
Section 4.02
(or, if such Borrowing is the initial Credit Extension,
Section 4.01), the Administrative Agent shall make all funds so received available to the Borrower in like funds as received by the
Administrative Agent either by
(i) crediting the account of the Borrower on the books of the Administrative Agent with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with
instructions provided to (and reasonably acceptable to) the Administrative Agent by the Borrower;
provided,
however, that if, on the date the Committed Loan
Notice with respect to such Borrowing is given by the Borrower, there are L/C Borrowings outstanding, then the proceeds of such Borrowing shall be applied,
first, to the payment in full of any such L/C Borrowings, and
second,
to the Borrower as provided above.
(d) Except as otherwise provided herein, a SOFR Loan may be continued or converted only on the last day of an
Interest Period for such SOFR Loan unless the Borrower pays the amount due under
Section 3.06 in connection therewith. During the existence of an Event of Default, at the election of the
Administrative Agent or the Required Lenders, no Loans may be requested as, converted to or continued as SOFR Loans.
(e) The Administrative Agent shall promptly notify the Borrower and the Lenders of the interest rate applicable
to any Interest Period for SOFR Loans upon determination of such interest rate. The determination of Term SOFR by the Administrative Agent shall be conclusive in the absence of manifest error.
(f) After giving effect to all Term Borrowings, all Revolving Credit Borrowings, all conversions of Term Loans
or Revolving Credit Loans from one Type to another, and all continuations of Term Loans or Revolving Credit Loans of the same Type, there shall not be more than ten Interest Periods in effect.
(g) The failure of any Lender to make the Loan 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 Loan on the date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Loan to be made by such other Lender on the date of any
Borrowing, which for the avoidance of doubt does not limit such Lender’s obligations under
Section 2.17.
Section 2.03 Letters of Credit.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and
conditions set forth herein,
(A) each L/C Issuer agrees, in reliance upon (among other things) the agreements of the other Revolving Credit Lenders set forth in
this
Section 2.03,
(1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Sublimit Expiration Date, to issue
Letters of Credit denominated in Dollars (
provided that no L/C Issuer shall be required to issue Letters of Credit hereunder other than standby Letters of Credit denominated in Dollars, and
provided, further,
that there shall not at any time be more than a total of twenty Letters of Credit outstanding) for the account of any Restricted Group Member (
provided that the Borrower hereby irrevocably agrees to reimburse the applicable L/C Issuer for amounts drawn on any Letters of Credit issued for the account of any Restricted Group Member on a joint and
several basis with such Restricted Subsidiary and shall be a co-applicant for each such Letter of Credit issued for the account of a Restricted Subsidiary, but in no event shall any Excluded Subsidiary be responsible for any amounts drawn on
any Letters of Credit issued for the account of the Borrower or any other Subsidiary) and to amend or extend Letters of Credit previously issued by it, in accordance with
Section 2.03(c), and (2) to honor drawings under the Letters of
Credit; and
(B) the Revolving Credit Lenders severally agree to participate in Letters of Credit issued for the
account of any Restricted Group Member;
provided that no L/C Issuer shall be obligated to make any L/C Credit Extension with respect to any Letter of Credit, and no Lender shall be obligated to
participate in any Letter of Credit, if as of the date of such L/C Credit Extension
(w) the Total Revolving Credit Outstandings in respect of any Revolving Tranche would exceed such Revolving Tranche,
(x) the Total Revolving Credit Outstandings would exceed the Revolving Credit Facility,
(y) the aggregate Pro Rata Share of the Outstanding Amount of the Revolving Credit Loans of any
Lender,
plus such Lender’s Pro Rata Share of the Outstanding Amount of all L/C Obligations would exceed such Lender’s Initial Revolving Credit Commitment or
(z) the
Outstanding Amount of the L/C Obligations would exceed the Letter of Credit Sublimit;
provided,
further, that no L/C Issuer identified on
Schedule 1.01(c)
shall have any obligation to make an L/C Credit Extension if, after giving effect thereto, the L/C Obligations in respect of Letters of Credit issued by such L/C Issuer would exceed the amount set forth opposite such L/C Issuer’s name on
Schedule
1.01(c). Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain
Letters of Credit to replace Letters of Credit that have expired or been terminated or that have been drawn upon and reimbursed. All Letters of Credit shall be denominated in Dollars.
(ii) No L/C Issuer shall be under any obligation to issue any Letter of Credit (and, in the case of
clauses (B) and
(C) below unless the applicable requisite consents specified therein have been obtained, no L/C Issuer shall issue any Letter of Credit) if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such
L/C Issuer from issuing such Letter of Credit, or any Law applicable to such L/C Issuer or any request or directive (whether or not having the force of Law) from any Governmental Authority with jurisdiction over such L/C Issuer shall
prohibit, or request that such L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such L/C Issuer with respect to such Letter of Credit any restriction, reserve or
capital requirement (for which such L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date
and which, in each case, such L/C Issuer in good faith deems material to it;
(B) subject to
Section 2.03(c)(iii), the expiry date of such requested Letter of Credit would occur after the earlier of
(x) five (5) Business Days prior to the
scheduled Maturity Date then in effect for the Revolving Credit Facility (or, if such day is not a Business Day, the immediately preceding
Business Day) and
(y) more than 12 months after the date of issuance, unless the applicable L/C Issuer, in its sole discretion, has approved such expiry date.
(C) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Sublimit Expiration Date, unless
(i) all the Revolving Credit Lenders and the applicable L/C Issuer have approved such expiry date and/or (ii) the applicable L/C Issuer has approved such expiry date and such requested Letter of Credit has been
Cash Collateralized by the applicant requesting such Letter of Credit in accordance with
Section 2.16;
(D) the issuance of such Letter of Credit would violate one or more generally applicable policies of such L/C Issuer in place at the
time of such request;
(E) such Letter of Credit is in an initial amount of less than $5,000 or such lesser amount as is acceptable to the applicable L/C
Issuer in its sole discretion;
(F) such Letter of Credit is denominated in a currency other than Dollars;
(G) the proceeds of such Letter of Credit would be made available to any Person
(i) to fund any
activity or business of or with any Sanctioned Person, or any dealing or investment in or with any country or territory that, at the time of such funding, is a Sanctioned Country or (ii) in any manner that would result in a violation of any
Sanctions Laws and Regulations by any party to this Agreement;
(H) such L/C Issuer does not as of the issuance date of such requested Letter of Credit issue Letters of Credit in the requested
currency; or
(I) any Revolving Credit Lender is at that time a Defaulting Lender, unless the applicable L/C Issuer has entered into
arrangements, including reallocation of the Defaulting Lender’s Pro Rata Share of the outstanding L/C Obligations pursuant to
Section 2.17(a)(iv) or the delivery of Cash Collateral in
accordance with
Section 2.16 with the Borrower or such Lender to eliminate such L/C Issuer’s actual or potential Fronting Exposure (after giving effect to
Section 2.17(a)(iv))
with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which such L/C Issuer has actual or potential Fronting Exposure under such
Tranche.
(iii) No L/C Issuer shall be under any obligation to issue an amendment to any Letter of Credit if such L/C Issuer would have no
obligation at such time to issue such Letter of Credit in its amended form under the terms hereof.
(iv) Each L/C Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the
documents associated therewith, and each L/C Issuer shall have all of the benefits and immunities
(A) provided to the Administrative Agent in
Article IX with
respect to any acts taken or omissions suffered by such L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term
“Administrative Agent” as used in
Article IX included each L/C Issuer with respect to such acts or omissions and
(B) as additionally provided herein with respect
to each L/C Issuer.
(b) The foregoing benefits and immunities shall not excuse any L/C Issuer from liability to the Borrower to the
extent of any direct damages (as opposed to indirect, special, consequential, punitive or exemplary damages claims which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by
such L/C Issuer’s gross negligence, bad faith or willful misconduct as determined by a court of competent jurisdiction in a final and nonappealable judgment.
(c) Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as applicable, upon the request of the Borrower delivered to the applicable L/C
Issuer (with a copy to the Administrative Agent) in the form of an irrevocable Letter of Credit Application, including agreed-upon draft language for such Letter of Credit reasonably acceptable to the applicable L/C Issuer (it being
understood that such draft language for each such Letter of Credit must be in English or, if agreed to in the sole discretion of the applicable L/C Issuer, accompanied by an English translation certified by the Borrower to be a true and
correct English translation), appropriately completed and signed by a Responsible Officer of the Borrower. Such Letter of Credit Application must be received by the applicable L/C Issuer and the Administrative Agent not later than 2:00 p.m.
(Chicago time) at least five (5) Business Days (or such shorter period as such L/C Issuer and the Administrative Agent may agree in a particular instance in their sole discretion) prior to the proposed issuance date. In the case of a request
for the issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and detail reasonably satisfactory to the applicable L/C Issuer:
(A) the proposed issuance date of the requested
Letter of Credit (which shall be a Business Day not later than 30 days prior to the Maturity Date of the Revolving Credit Facility, unless the Administrative Agent and the applicable L/C Issuer otherwise agree);
(B)
the Person for whose account the requested Letter of Credit is to be issued (which must be a Restricted Group Member); and
(C) such other matters as the applicable L/C Issuer may reasonably request. In the case
of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail reasonably satisfactory to the applicable L/C Issuer:
(1) the Letter of Credit
to be amended;
(2) the proposed date of the issuance of the amendment (which shall be a Business Day);
(3) the nature of the proposed amendment; and (4) such other matters as the
applicable L/C Issuer may reasonably request.
(ii) Promptly following delivery of any Letter of Credit Application to the applicable L/C Issuer, the applicable L/C Issuer will confirm
with the Administrative Agent that the Administrative Agent has received a copy of such Letter of Credit Application and, if the Administrative Agent has not received a copy of such Letter of Credit Application, then the applicable L/C Issuer
will provide the Administrative Agent with a copy thereof. Upon receipt by such L/C Issuer of confirmation from the Administrative Agent that the requested issuance or amendment is permitted in accordance with the terms hereof, then, subject
to the terms and conditions hereof, such L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of any Restricted Group Member (as designated in the Letter of Credit Application) or issue the applicable amendment,
as applicable. Immediately upon the issuance of each Letter of Credit, each Revolving Credit Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the applicable L/C Issuer a risk participation in
such Letter of Credit in an amount equal to such Lender’s Pro Rata Share of the Revolving Credit Facility,
multiplied by the amount of such Letter of Credit.
(iii) If the Borrower so requests in any applicable Letter of Credit Application, the applicable L/C Issuer may, in its sole and absolute
discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “
Auto-Extension Letter of Credit”);
provided that any such
Auto-Extension Letter of Credit must permit such L/C Issuer to prevent any such extension at least once in each
12-month period (commencing with the date of issuance of such Letter of Credit) by giving prior
notice to the beneficiary thereof not later than a day in each such
12-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the applicable L/C Issuer, the
Borrower shall not be required to make a specific request to such L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Revolving Credit Lenders shall be deemed to have authorized (but may not
require) the applicable L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry date not later than the Letter of Credit Sublimit Expiration Date;
provided,
however, that such L/C Issuer shall not permit any such extension if such L/C Issuer has determined that it would have no obligation at such time to issue such Letter of Credit in its extended form under
the terms hereof (by reason of the provisions of
Section 2.03(a)(ii) or otherwise).
(iv) Promptly upon request thereof by the Borrower or the Administrative Agent and after its delivery of any Letter of Credit or any
amendment to a Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, the applicable L/C Issuer will also
(A) deliver to the Borrower, the applicable Restricted Group Member and
the Administrative Agent a true and complete copy of such Letter of Credit or amendment and
(B) the Administrative Agent in turn will notify each Revolving Credit Lender of such issuance or amendment and the
amount of such Revolving Credit Lender’s Pro Rata Share therein.
(v) Notwithstanding anything to the contrary set forth above, the issuance of any Letters of Credit by any L/C Issuer under this
Agreement shall be subject to such reasonable additional letter of credit issuance procedures and requirements as may be required by such L/C Issuer’s internal letter of credit issuance policies and procedures, in its sole discretion, as in
effect at the time of such issuance, including requirements with respect to the prior receipt by such L/C Issuer of customary “know your customer” information regarding a prospective account party or applicant that is not a Loan Party
hereunder, as well as regarding any beneficiaries of a requested Letter of Credit. Additionally, if
(a) the beneficiary of a Letter of Credit issued hereunder is an issuer of a letter of credit not governed by
this Agreement for the account of any Restricted Group Member (an “
Other LC”) and
(b) such Letter of Credit is issued to provide credit support for such Other LC, no
amendments may be made to such Other LC without the consent of the applicable L/C Issuer hereunder.
(d) Drawings and Reimbursements; Funding of Participations.
(i)
After examination of drawing document(s), the applicable L/C Issuer shall notify the Borrower of
the date and the amount of a drawing presented under any Letter of Credit and paid by such L/C Issuer. Each L/C Issuer shall notify the Borrower on the date of any payment by such L/C Issuer under a Letter of Credit (each such date, an “Honor Date”), and the Borrower shall reimburse such L/C Issuer through the Administrative Agent in an amount equal to the amount of such drawing no later than on the next succeeding Business Day (and any
reimbursement made on such next Business Day shall be taken into account in computing interest and fees in respect of any such Letter of Credit)
after the Borrower shall have received notice of such payment
with interest on the amount so paid or disbursed by such L/C Issuer, to the extent not reimbursed prior to 11:00 a.m. (Chicago time) on the applicable Honor Date, from
and including the date paid or disbursed to but excluding the date such L/C Issuer was reimbursed by the Borrower therefor at a rate per annum equal to the ABR as in effect from time to time, plus the Applicable Rate as in effect from time to time for Revolving Credit Loans that are maintained as ABR Loans. If the Borrower fails to so reimburse such L/C Issuer such next
Business Day, the L/C Issuer will notify the Administrative Agent thereof and the Administrative Agent shall promptly notify each Revolving Credit Lender under the applicable Revolving Tranche of the Honor Date, the amount of the
unreimbursed drawing (the “Unreimbursed Amount”), and the amount of such Revolving Credit Lender’s Pro Rata Share thereof. In such
event, in the case of an Unreimbursed Amount, the Borrower shall be deemed to have requested a Revolving Credit Borrowing of ABR Loans, to be disbursed on such date in an amount equal to the Unreimbursed Amount, in accordance with the
requirements of Section 2.02 but without regard to the minimum and multiples specified in Section 2.02 for the principal amount of ABR Loans or SOFR Loans, as applicable, but subject to the amount of the unused portion of
the Revolving Credit Commitments under such Revolving Tranche and the conditions set forth in Section 4.02 (other than the delivery of a Committed Loan Notice). Any notice given by an L/C Issuer or the Administrative Agent pursuant
to this Section 2.03(d)(i) may be given by telephone if promptly confirmed in writing; provided that the lack of such a prompt
confirmation shall not affect the conclusiveness or binding effect of such notice.
(ii) Each Revolving Credit Lender (including each Lender acting as an L/C Issuer) under the applicable Revolving Tranche shall upon any
notice pursuant to
Section 2.03(d)(i) make funds available (and the Administrative Agent may apply Cash Collateral provided for this purpose) for the account of the applicable L/C Issuer, at the Administrative Agent’s Office in an
amount equal to, and in Dollars, its applicable Pro Rata Share of the Unreimbursed Amount not later than 2:00 p.m. (Chicago time) on the Business Day specified in such notice by the Administrative Agent, whereupon, subject to the provisions
of
Section 2.03(d)(iii), each Revolving Credit Lender under such Revolving Tranche that so makes funds available
shall be
deemed to have made an ABR Revolving Credit Loan under such Revolving Tranche to the Borrower in such amount. The Administrative Agent shall promptly remit the funds so received to the applicable L/C Issuer.
(iii) With respect to any Unreimbursed Amount that is not fully refinanced by a Revolving Credit Borrowing of ABR Loans because the
conditions set forth in
Section 4.02 cannot be satisfied (other than the condition in
Section 4.02(c), which shall be deemed to be satisfied)
or for any other reason, the Borrower shall be deemed to have incurred from the applicable L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and payable on demand
(together with interest) and shall bear interest at the Default Rate then applicable to
ABR Revolving Credit Loans. In such
event, each Revolving Credit Lender’s payment to the Administrative Agent for the account of the applicable L/C Issuer pursuant to
Section 2.03(d)(ii) shall be deemed payment in respect of its participation in such L/C Borrowing and
shall constitute an L/C Advance from such Lender in satisfaction of its participation obligation under this
Section 2.03.
(iv) Until each Revolving Credit Lender under the applicable Revolving Tranche funds its Revolving Credit Loan or L/C Advance pursuant to
this
Section 2.03(d) to reimburse the applicable L/C Issuer for any amount drawn under any Letter of Credit, interest in respect of such Lender’s applicable Pro Rata Share of such amount shall be solely for the account of such L/C
Issuer.
(v) Each applicable Revolving Credit Lender’s obligation to make Revolving Credit Loans or L/C Advances to reimburse the applicable L/C
Issuer for amounts drawn under Letters of Credit, as contemplated by this
Section 2.03(d), shall be absolute and unconditional and shall not be affected by any circumstance, including
(A) any setoff,
counterclaim, recoupment, defense or other right which such Lender may have against such L/C Issuer, the Borrower or any other Person for any reason whatsoever,
(B) the occurrence or continuance of a Default or
(C) any other occurrence, event or condition, whether or not similar to any of the foregoing;
provided,
however, that each
Revolving Credit Lender’s obligation to make Revolving Credit Loans pursuant to this
Section 2.03(d) is subject to the conditions set forth in
Section 4.02 (other than delivery by the
Borrower of a Committed Loan Notice). No such making of an L/C Advance shall relieve or otherwise impair the obligation of the Borrower to reimburse the applicable L/C Issuer for the amount of any payment made by the applicable L/C Issuer
under any Letter of Credit, together with interest as provided herein.
(vi) If any Revolving Credit Lender fails to make available to the Administrative Agent for the account of the applicable L/C Issuer any
amount required to be paid by such Lender pursuant to the foregoing provisions of this
Section 2.03(d) by the time specified in
Section 2.03(d)(ii), then, without limiting the other provisions of this Agreement, such L/C
Issuer shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is
immediately available to such L/C Issuer at a rate per annum equal to the greater of the NYFRB Rate from time to time in effect and a rate reasonably determined by such L/C Issuer in accordance with banking industry rules on interbank
compensation,
plus any reasonable administrative, processing or similar fees customarily charged by such L/C Issuer in connection with the foregoing. If such Lender pays such principal amount, the
amount so paid (less interest and fees) shall constitute such Lender’s Loan included in the relevant Borrowing or L/C Advance in respect of the relevant L/C Borrowing, as applicable. A certificate of the applicable L/C Issuer submitted to
any Revolving Credit Lender (through the Administrative Agent) with respect to any amounts owing under this
Section 2.03(d)(vi) shall be conclusive absent manifest error.
(e) Repayment of Participations.
(i) If, at any time after an L/C Issuer has made a payment under any Letter of Credit issued by it and has received from any Revolving
Credit Lender such Lender’s L/C Advance in respect of such payment in accordance with
Section 2.03(d), the Administrative Agent receives for the account of such L/C Issuer any payment in respect of the related Unreimbursed Amount or
interest thereon (whether directly from the Borrower or otherwise, including proceeds of Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent will distribute to such Lender its applicable Pro Rata Share
thereof (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s L/C Advance was outstanding) in the same funds as those received by the Administrative Agent.
(ii) If any payment received by the Administrative Agent for the account of an L/C Issuer pursuant to
Section 2.03(d)(i) is
required to be returned under any of the circumstances described in
Section 10.06 (including pursuant to any settlement entered into by such L/C Issuer in its discretion), each Revolving
Credit Lender shall pay to the Administrative Agent for the account of such L/C Issuer its applicable Pro Rata Share thereof on demand of the Administrative Agent,
plus interest thereon from the date
of such demand to the date such amount is returned by such Lender, at a rate per annum equal to the NYFRB Rate from time to time in effect. The obligations of the Lenders under this
clause (ii) shall survive the payment in full of the
Obligations and the termination of this Agreement.
(f) Obligations Absolute. The obligation of the Borrower to reimburse the applicable L/C Issuer for
each drawing under each Letter of Credit and to repay each L/C Borrowing shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including the
following:
(i) any lack of validity or enforceability of such Letter of Credit, this Agreement, or any other agreement or instrument relating
thereto;
(ii) the existence of any claim, counterclaim, setoff, defense or other right that the Borrower or any Subsidiary may have at any time
against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), the applicable L/C Issuer or any other Person, whether in connection with this Agreement,
the transactions contemplated hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction;
(iii) any draft, demand, certificate or other document presented under such Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit;
(iv) any payment by the applicable L/C Issuer under such Letter of Credit against presentation of a draft, certificate or other drawing
document that does not comply with the terms of such Letter of Credit; or any payment made by the applicable L/C Issuer under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the
benefit of creditors, administrator, administrative receiver, judicial manager, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection
with any proceeding under any Debtor Relief Law;
(v) any exchange, release or non-perfection of any Collateral, or any release or amendment or waiver of or consent to departure from the
Guaranty or any other guarantee, for all or any of the Obligations of the Borrower in respect of such Letter of Credit; or
(vi) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that
might otherwise constitute a defense available to, or a legal or equitable discharge of, or provide a right of setoff against the Borrower’s obligations hereunder.
The Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance with the instructions of
the Borrower or other irregularity, the Borrower will promptly notify the applicable L/C Issuer. The Borrower shall be conclusively deemed to have waived any such claim against any L/C Issuer and its correspondents unless such notice is
given as aforesaid.
(g) Role of L/C Issuer. Each Lender and the Borrower agree that, in paying any drawing under a Letter of Credit, the applicable L/C
Issuer shall not have any responsibility to obtain any document (other than any sight draft, certificates and other documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such
document or the authority of the Person executing or delivering any such document. None of the applicable L/C Issuer, any Agent-Related Person nor any of the respective correspondents, participants or assignees of the applicable L/C Issuer
shall be liable to any Lender for
(i) any action taken or omitted in connection herewith at the request or with the approval of the Revolving Credit Lenders or the Required Revolving Lenders, as applicable; (ii)
any action taken or omitted in the absence of bad faith, gross negligence or willful misconduct as determined by a court of competent jurisdiction in a final and nonappealable judgment; or (iii) the due execution, effectiveness, validity or
enforceability of any document or instrument related to any Letter of Credit or Letter of Credit Application. The Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any
Letter of Credit;
provided,
however, that this assumption is not intended to, and shall not, preclude the Borrower from pursuing such rights and remedies as
it may have against the beneficiary or transferee at Law or under any other agreement. None of the applicable L/C Issuer, any Agent-Related Person, nor any of the respective correspondents, participants or assignees of such L/C Issuer, shall
be liable or responsible for any of the matters described in
clauses (i) through
(vi) of
Section 2.03(f);
provided,
however, that
anything in such clauses to the contrary notwithstanding, the Borrower may have a claim against such L/C Issuer, and such L/C Issuer may be liable to the Borrower, to the extent, but only to the extent, of any direct, as opposed to indirect,
special, punitive, consequential or exemplary, damages suffered by the Borrower which a court of competent jurisdiction determines in a final non-appealable judgment were caused by such L/C Issuer’s bad faith, willful misconduct or gross
negligence or material breach of its obligations under this Agreement. In furtherance and not in limitation of the foregoing, the applicable L/C Issuer may, in its sole discretion, either accept documents that appear on their face to be in
order and make payment upon such documents, without responsibility for further investigation, regardless of any notice or information to the contrary, and such L/C Issuer shall not be responsible for the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason or refuse
to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.
(h) Letter of Credit Fees. The Borrower shall pay to the Administrative Agent for the account of each
Revolving Credit Lender in accordance with its applicable Pro Rata Share, a Letter of Credit fee in Dollars which shall accrue for each Letter of Credit issued for its account in an amount equal to the Applicable Rate then in effect for SOFR
Loans with respect to the Revolving Credit Facility,
multiplied by the daily maximum amount available to be drawn under such Letter of Credit (whether or not such maximum amount may be drawn
immediately under such Letter of Credit);
provided,
however, that any Letter of Credit fees otherwise payable for the account of a Defaulting Lender with
respect to any Letter of Credit as to which such Defaulting Lender has not provided Cash Collateral satisfactory to the applicable L/C Issuer pursuant to this
Section 2.03 shall be payable, to
the maximum extent permitted by applicable Law, to the other Revolving Credit Lenders in accordance with the upward adjustments in their respective applicable Pro Rata Shares allocable to such Letter of Credit pursuant to
Section 2.17(a)(iv), with the balance of such fee, if any, payable to the applicable L/C Issuer for its own account. Such Letter of Credit fees shall be computed on a quarterly basis in arrears and shall be due
and payable on January 15, April 15, July 15 and October 15 of each year, commencing with the first such date to occur after the issuance of such Letter of Credit, in respect of the three-month period then ending (or portion thereof, in the
case of the first payment), the date of termination or expiration of the applicable Letter of Credit, on the Letter of Credit Sublimit Expiration Date and thereafter on demand. If there is any change in the Applicable Rate during any
quarter, the daily maximum amount of each Letter of Credit shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect.
(i) Fronting Fee and Documentary and Processing Charges Payable to an L/C
Issuer. The Borrower shall pay directly to the applicable L/C Issuer for its own account a fronting fee in Dollars equal to 0.125% of the maximum daily amount
available to be drawn under such Letter of Credit issued for its account on a quarterly basis in arrears. Such fronting fee shall be due and payable on January 15, April 15, July 15 and October 15 of each year, in respect of the
three-month period then ending (or portion thereof, in the case of the first payment)
, commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit
Sublimit Expiration Date and thereafter on demand. For purposes of computing the maximum daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section
1.09. In addition, the Borrower, as applicable, shall pay directly to the applicable L/C Issuer for its own account the customary issuance, presentation, administration, amendment and other processing fees, and other standard costs
and charges, of such L/C Issuer relating to letters of credit as from time to time in effect. Such customary fees and standard costs and charges are due and payable within five (5) Business Days of demand and are nonrefundable.
(j) Conflict with Letter of Credit Application. In the event of any conflict between the terms hereof and the terms of any Letter of
Credit Application, the terms hereof shall control.
(k) Reporting. To the extent that any Letters of Credit are issued by an L/C Issuer other than the
Administrative Agent, each such L/C Issuer shall furnish to the Administrative Agent a report detailing the L/C Obligations outstanding under all Letters of Credit issued by it, such report to be in a form and at reporting intervals as shall
be agreed between the Administrative Agent and such L/C Issuer;
provided that in no event shall such reports be furnished at intervals less than 31 days (and in no event shall any such report be
provided earlier than the fifth (5th) Business Day after the end of any calendar month in respect of a calendar month period).
(l) Provisions Related to Extended Revolving Credit Commitments. If the Maturity Date in respect of any
Tranche of Revolving Credit Commitments occurs prior to the expiration of any Letter of Credit, then
(i) if one or more other Tranches of Revolving Credit Commitments in respect of which the Maturity Date shall
not have occurred are then in effect, such Letters of Credit shall automatically be deemed to have been issued (including for purposes of the obligations of the Revolving Credit Lenders to purchase participations therein and to make Revolving
Credit Loans and payments in respect thereof pursuant to this
Section 2.03) under (and ratably participated in by Lenders pursuant to) the Revolving Credit Commitments in respect of such
non-terminating Tranches up to an aggregate amount not to exceed the aggregate principal amount of the unused Revolving Credit Commitments thereunder at such time (it being understood that no partial amount of any Letter of Credit may be so
reallocated) and to the extent any Letters of Credit are not able to be reallocated pursuant to this
clause (l) and there are outstanding Revolving Credit Loans under the non-terminating Tranches, the Borrower agrees to repay all such
Revolving Credit Loans (or such lesser amount as is necessary to reallocate all Letters of Credit pursuant to this
clause (l)) or (ii) to the extent not reallocated pursuant to immediately preceding
clause (i), the Borrower
shall Cash Collateralize any such Letter of Credit in accordance with
Section 2.16 but only up to the amount of such Letter of Credit not so reallocated. Except to the extent of reallocations
of participations pursuant to
clause (i) of the immediately preceding sentence, the occurrence of a Maturity Date with respect to a given tranche of Revolving Credit Commitments shall have no effect upon (and shall not diminish) the
percentage participations of the Revolving Credit Lenders in any Letter of Credit issued before such Maturity Date.
(m) Letters of Credit Issued for Account of Restricted Subsidiaries. Notwithstanding that a Letter of
Credit issued or outstanding hereunder supports any obligations of, or is for the account of, a Restricted Subsidiary, or states that a Restricted Subsidiary is the “account party,” “applicant,” “customer,” “instructing party,” or the like of
or for such Letter of Credit, and without derogating from any rights of the applicable L/C Issuer (whether arising by contract, at law, in equity or otherwise) against such Restricted Subsidiary in respect of such Letter of Credit, the
Borrower
(i) shall reimburse, indemnify and compensate the applicable L/C Issuer hereunder for such Letter of Credit (including to reimburse any and all drawings thereunder) as if such Letter of Credit had been
issued solely for the account of the Borrower and (ii) irrevocably waives any and all defenses that might otherwise be available to it as a guarantor or surety of any or all of the obligations of such Restricted Subsidiary in respect of such
Letter of Credit. The Borrower hereby acknowledges that the issuance of such Letters of Credit for its Restricted Subsidiaries inures to the benefit of the Borrower, and that the Borrower’s business derives substantial benefits from the
businesses of such Restricted Subsidiaries.
(n) Applicability of ISP and UCP. Unless otherwise expressly agreed in writing by the applicable L/C Issuer and the Borrower when a
Letter of Credit is issued for the Borrower’s account by such L/C Issuer,
(i) the rules of the ISP shall be stated therein to apply to each standby Letter of Credit and (ii) the rules of the UCP shall be stated
therein to apply to each commercial Letter of Credit. Notwithstanding the foregoing, no L/C Issuer shall be responsible to the Borrower for, and such L/C Issuer’s rights and remedies against any the Borrower shall not be impaired by, any
action or inaction of such L/C Issuer required or permitted under any law, order, or practice that is required or permitted to be applied to any Letter of Credit or this Agreement, including the Laws or any order of a jurisdiction where such
L/C Issuer or the beneficiary is located, the practice stated in the ISP or UCP, as applicable, or in the decisions, opinions, practice statements, or official commentary of the
International Chamber of Commerce Banking Commission, the
Bankers
Association for Finance and Trade (BAFT), or the Institute of International Banking Law & Practice, whether or not any Letter of Credit chooses such laws or practice rules.
Section 2.05 Prepayments.
(i) The Borrower may, upon notice substantially in the form of
Exhibit I to the Administrative Agent, at any time or from time
to time voluntarily prepay Loans in whole or in part without premium or penalty;
provided that
(1) such notice must be received by the Administrative Agent not later than
(A) 12:00 noon (Chicago time) three
(3) U.S. Government Securities Business Days prior to any date of prepayment of SOFR Loans and
(B) 11:00 a.m.
(Chicago time) on the date of prepayment of ABR Loans (or, in each case, such shorter period as the Administrative Agent shall agree);
(2) any prepayment of SOFR Loans shall be
(x)
in a principal amount of $3,000,000, or
(y) a whole multiple of $1,000,000 in excess thereof; and (3) any prepayment of ABR Loans shall be
(x) in a principal amount of $500,000, or
(y) a whole multiple of $100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment, the
Tranche of Loans to be prepaid, the Type(s) of Loans to be prepaid and, if SOFR Loans are to be prepaid, the Interest Period(s) of such Loans (except that if the class of Loans to be prepaid includes both
(i) ABR
Loans and (ii) SOFR Loans, absent direction by the Borrower, the applicable prepayment shall be applied first to ABR Loans to the full extent thereof before application to SOFR Loans, in a manner that minimizes the amount payable by the
Borrower in respect of such prepayment pursuant to
Section 3.06, to the extent applicable). The Administrative Agent will promptly notify each Lender
of its receipt of each such notice, and of the amount of such Lender’s ratable portion of such prepayment (based on such Lender’s ratable share of the relevant Facility). If such notice is given by the Borrower, subject to
clause (ii)
below, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a SOFR Loan shall be accompanied by all accrued interest thereon,
together with any additional amounts required pursuant to, if applicable,
Section 3.06. Subject to
Section 2.17, each prepayment of
outstanding Term Loan Tranches pursuant to this
Section 2.05(a) shall be applied to the Term Loan Tranche or Term Loan Tranches designated on such notice on a pro rata basis within such Term Loan Tranche. Subject to
Section 2.17, each prepayment of an outstanding Term Loan Tranche pursuant to this
Section 2.05(a) shall be applied to the remaining amortization payments of such Term Loan Tranche as
directed by the Borrower (or, if the Borrower has not made such designation, in direct order of maturity), but, in any event, on a pro rata basis to the Lenders within such Term Loan Tranche.
(ii) Notwithstanding anything to the contrary contained in this Agreement, any notice of prepayment under
Section 2.05(a)(i) may
state that it is conditioned upon the occurrence or non-occurrence of any event specified therein (including the effectiveness of other credit facilities, indentures or similar agreements or other transactions), in which case such notice may
be revoked or extended by the Borrower (by written notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied.
(b) Mandatory.
(i) If any Asset Disposition or Casualty Event (or series of related Asset Dispositions or Casualty
Events) (other than, in each case, any Excluded Casualty Event) results in the receipt by any Restricted Group Member of aggregate Net Cash Proceeds in excess of the greater of $44
,000,000 and
20.0% of LTM EBITDA (“
Relevant Transaction”), then, except to the extent the Borrower elects to reinvest an amount equal to all or a portion of such Net Cash Proceeds in
accordance with
Section 7.04, the Borrower shall prepay, subject to
Section 2.05(b)(vii), an aggregate principal amount of Term Loans in an amount equal to
100.0%
(as may be adjusted pursuant to the second proviso below) of the Net Cash Proceeds received from such Relevant Transaction within the time period specified in
Section 7.04;
provided that the Borrower or any Restricted Subsidiary may use a portion of the Net Cash Proceeds received from such Relevant Transaction to prepay
or repurchase any other Indebtedness that is pari passu in right of payment and security with the Initial Term Loans to the extent the documentation governing such other Indebtedness requires such a
prepayment or repurchase thereof with the proceeds of such Relevant Transaction, to the extent not deducted in the calculation of Net Cash Proceeds, in each case in an amount not to exceed the product of:
(1) the amount of such Net Cash Proceeds and
(2) a fraction, the numerator of which is the outstanding principal amount of such other
Indebtedness (or to the extent such amount is not in Dollars, such equivalent amount of such Indebtedness converted into Dollars as determined in accordance with
Section 1.08) and the
denominator of which is the aggregate outstanding principal amount of Term Loans and such other Indebtedness (or to the extent such amount is not in Dollars, such equivalent amount of such Indebtedness converted into Dollars as determined in
accordance with
Article I);
provided,
further, that such prepayment percentage shall be reduced from
100.0%
to
50.0% and to
0.0% if, on a pro forma basis after giving effect to such Asset Disposition or Casualty Event, as applicable, and the use of proceeds therefrom, the Consolidated
First Lien Net Leverage Ratio would be equal to or less than
1.25 to
1.00 or
0.75 to
1.00, respectively (any Net Cash
Proceeds in respect of any such Asset Disposition or Casualty Event not required to be applied in accordance with this
Section 2.05(b) as a result of the application of this proviso shall collectively constitute “
Retained Asset Excess Proceeds”, which Retained Asset Excess Proceeds may be used for any purpose permitted hereunder);
provided,
further, that only the amount of Net Cash Proceeds in excess of the greater of $44
,000,000 and
20.0% of LTM EBITDA for any Asset Disposition or Casualty Event (or series of related Asset Dispositions or Casualty Events) shall be subject to prepayment
pursuant to this
Section 2.05(b)(i) and, in such case, the required prepayment shall be only the amount in excess thereof.
(ii) Upon the incurrence or issuance by any Restricted Group Member of any Credit Agreement Refinancing Debt, any Specified Refinancing Term Loans, in each case,
incurred to refinance a Term Loan Tranche, or any Indebtedness not expressly permitted to be incurred or issued pursuant to
Section 7.01, the Borrower shall prepay an aggregate principal
amount of Term Loan Tranches in an amount equal to
100.0% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by such Restricted Group Member.
(iii) Upon the incurrence by any Restricted Group Member of any Specified Refinancing Debt constituting revolving credit facilities
incurred to refinance Revolving Credit Loans, the Borrower shall prepay an aggregate principal amount of Revolving Credit Loans in an amount equal to
100.0% of all Net Cash Proceeds received therefrom immediately
upon receipt thereof by such Restricted Group Member.
(iv) If for any reason the sum of the Total Revolving Credit Outstandings of a Revolving Tranche at any time exceeds the sum of the
applicable Revolving Tranche in respect thereof (including after giving effect to any reduction in the Revolving Credit Commitments of such Revolving Tranche pursuant to
Section 2.06), the
Borrower shall immediately prepay the Loans under the applicable Revolving Tranche and/or Cash Collateralize the L/C Obligations related thereto in an aggregate amount equal to such excess;
provided,
however, that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this
Section 2.05(b)(iv) unless after the prepayment in full of the Loans under the
applicable Revolving Tranche the sum of the Total Revolving Credit Outstandings of such applicable Revolving Tranche exceed the aggregate Revolving Credit Commitments for such applicable Revolving Tranche then in effect.
(v) Subject to
Section 2.17, the aggregate amount of any prepayment of Term Loans that
is required pursuant to this
Section 2.05(b) shall be made to each Term Loan Tranche on a
pro rata basis (or, if agreed to in writing by the Majority Lenders of a Term Loan Tranche (including
pursuant to any amendment to the Agreement pursuant to which such Term Loan Tranche was established), in a manner that provides for more favorable prepayment treatment of other Term Loan Tranches) (other than a prepayment of
(x) Term Loans or Revolving Credit Loans, as applicable, with the proceeds of Indebtedness incurred pursuant to
Section 2.18, which shall be applied to the Term
Loan Tranche or Revolving Tranche, as applicable, being refinanced pursuant thereto or
(y) Term Loans with the proceeds of any Credit Agreement Refinancing Debt issued to the extent permitted under
Section
7.01(b)(1), which shall be applied to the Term Loan Tranche being refinanced pursuant thereto). Amounts to be applied to a Term Loan Tranche in connection with prepayments made pursuant to this
Section 2.05(b) shall be applied
to interest on each such Term Loan Tranche on a pro rata basis that is accrued and payable at such time and thereafter to the remaining
scheduled installments with respect to such Term Loan Tranche in direct
order of maturity. Each prepayment of Term Loans under a particular Tranche of a Facility pursuant to this
Section 2.05(b) be applied to the remaining amortization payments of such Term Loan Tranche as directed by the Borrower (or,
if Borrower has not made such designation, in direct order of maturity), but, in any event, on a pro rata basis to the Lenders within such Term Loan Tranche and be applied on a pro rata basis to the then outstanding ABR Loans and SOFR Loans
under such Tranche;
provided that, if there are no Declining Lenders with respect to such prepayment, then the amount thereof shall be applied first to ABR Loans under such Tranche to the full extent
thereof before application to SOFR Loans, in each case in a manner that minimizes the amount payable by the Borrower in respect of such prepayment pursuant to
Section 3.06.
(vi) All prepayments under this Section 2.05 shall be made together with, in the case of any such prepayment of a
SOFR Loan on a date other than the last day of an Interest Period therefor, any amounts owing in respect of such SOFR Loan pursuant to Section 3.06. Notwithstanding any of the other
provisions of this Section 2.05(b), so long as no Event of Default shall have occurred and be continuing, if any prepayment of SOFR Loans is required to be made under this Section 2.05(b), other than on the last day of the
Interest Period therefor, the Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder into a Cash Collateral account until the last day of such Interest Period, at which time
the Administrative Agent shall be authorized (without any further action by or notice to or from the Borrower or any other Loan Party) to apply such amount to the prepayment of such Loans in accordance with this Section 2.05(b) (it
being agreed, for clarity, that interest shall continue to accrue on the Loans so prepaid until the amount so deposited is actually applied to prepay such Loans). Upon the occurrence and during the continuance of any Event of Default, the
Administrative Agent shall also be authorized (without any further action by or notice to or from the Borrower or any other Loan Party) to apply such amount to the prepayment of the outstanding Loans in accordance with this Section
2.05(b).
(vii) Notwithstanding any other provisions of this
Section 2.05,
to the extent that any or all of the Net Cash Proceeds of any Asset Disposition by a Non-U.S. Subsidiary (or a U.S. Subsidiary of a Non-U.S. Subsidiary) (a “
Foreign Disposition”) or the Net Cash
Proceeds of any Casualty Event from a Non-U.S. Subsidiary (or a U.S. Subsidiary of a Non-U.S. Subsidiary) (a “
Foreign Casualty Event”), in each case, giving rise to a prepayment event pursuant to
Section
2.05(b)(i), are or is prohibited, restricted or delayed by applicable local law, rule or regulation (including, without limitation,
(i) financial assistance and corporate benefit restrictions and (ii)
fiduciary and statutory duties of any director or officer of such Subsidiaries), restricted by applicable organizational documents or any agreement or is subject to other onerous organizational or administrative impediments, in each case,
from being repatriated or otherwise paid to the Borrower or so prepaid or such repatriation, other payment or prepayment would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a
material risk of breach of fiduciary or statutory duties by any director or officer), an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay Term Loans at the times provided in this
Section 2.05.
Notwithstanding any other provisions of this
Section 2.05, to the extent that the Borrower has
determined in good faith that repatriation or other payment of any or all of the Net Cash Proceeds of any Foreign Disposition or any Foreign Casualty Event, in each case, giving rise to a prepayment event pursuant to
Section 2.05(b)(i),
could reasonably be expected to result in adverse Tax consequences (which for the avoidance of doubt, includes, but is not limited to, any prepayment out of such Net Cash Proceeds whereby doing so the Borrower, any of its Subsidiaries, any
direct or indirect parent of the Borrower or any of their respective affiliates and/or equity owners would incur a Tax liability, including as a result of a taxable dividend or a withholding Tax) or is prohibited or restricted by applicable
law, rule or regulation, an amount equal to the Net Cash Proceeds so affected will not be required to be applied to repay Term Loans at the times provided in this
Section 2.05.
(viii) No Restricted Group Member shall be required to monitor any Payment Block and/or reserve cash for future repatriation after the
Borrower has notified the Administrative Agent of the existence of such Payment Block.
(c) Term Lender Opt-Out. With respect to any mandatory prepayment of Initial Term Loans and, unless otherwise specified in the
documents therefor, other Term Loan Tranches, pursuant to Section 2.05(b)(i), any Appropriate Lender, at its option, may elect not to accept such prepayment as provided below. The Borrower may notify the Administrative Agent of any
event giving rise to a prepayment under Section 2.05(b)(i) at least ten (10) Business Days prior to the date of such prepayment. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation
of the amount of such prepayment that is required to be made under Section 2.05(b)(i) (the “Prepayment Amount”). The Administrative Agent will promptly notify each Appropriate Lender of the
contents of any such prepayment notice so received from the Borrower, including the date on which such prepayment is to be made (the “Prepayment Date”). Any Appropriate Lender may (but solely to the
extent the Borrower elects for this clause (c) to be applicable to a given prepayment) decline to accept all (but not less than all) of its share of any such prepayment (any such Lender, a “Declining
Lender”) by providing written notice to the Administrative Agent no later than five (5) Business Days after the date of such Appropriate Lender’s receipt of notice from the Administrative Agent regarding such prepayment. If any
Appropriate Lender does not give a notice to the Administrative Agent on or prior to such fifth (5th) Business Day informing the Administrative Agent that it declines to accept the applicable prepayment, then such Lender will be deemed to
have accepted such prepayment. On any Prepayment Date, an amount equal to the Prepayment Amount, minus the portion thereof allocable to Declining Lenders, in each case for such Prepayment Date, shall
be paid to the Administrative Agent by the Borrower and applied by the Administrative Agent ratably to prepay Term Loans under the Term Loan Tranches owing to Appropriate Lenders (other than Declining Lenders) in the manner described in Section
2.05(b) for such prepayment. Any amounts that would otherwise have been applied to prepay Term Loans, New Term Loans or Specified Refinancing Term Loans owing to Declining Lenders shall be retained by the Borrower (any Net Cash
Proceeds retained by the Borrower in accordance with this Section 2.05(c) shall constitute “Retained Declined Proceeds”).
(d) All Loans shall be repaid, whether pursuant to this
Section 2.05
or otherwise, in the currency in which they were made.
Section 2.06 Termination or Reduction of Commitments.
(a) Optional. The Borrower may, upon written notice by the Borrower to the
Administrative Agent, terminate the unused portions of the Commitments under any Term Loan Tranche, the Letter of Credit Sublimit, or the unused Revolving Credit Commitments under any Revolving Tranche, or from time to time permanently reduce
the unused portions of the Commitments under any Term Loan Tranche, the Letter of Credit Sublimit, or the unused Revolving Credit Commitments under any Revolving Tranche;
provided that
(i) any such notice shall be received by the Administrative Agent three (3) Business Days (or such shorter period as the Administrative Agent shall agree) prior to the date of termination or reduction, (ii) any
such partial reduction shall be in an aggregate amount of $500,000 or any whole multiple of $100,000 in excess thereof and (iii) the Borrower shall not terminate or reduce
(A) the Commitments under any Tranche
of the Revolving Credit Facility if, after giving effect thereto and to any concurrent prepayments hereunder,
(x) the Total Revolving Credit Outstandings would exceed the Revolving Credit Facility or
(y) the Total Revolving Credit Outstandings with respect to such Tranche would exceed the Revolving Credit Commitments under such Tranche or
(B) the Letter of Credit Sublimit if,
after giving effect thereto, the Outstanding Amount of L/C Obligations not fully
Cash Collateralized hereunder would exceed the Letter of
Credit Sublimit. Any such notice of termination or reduction of commitments pursuant to this
Section 2.06(a) may state that it is conditioned upon the occurrence or non-occurrence of any event specified therein (including the
effectiveness of other credit facilities, indentures or similar agreements or other transactions), in which case such notice may be revoked by the Borrower (by written notice to the Administrative Agent on or prior to the specified effective
date) if such condition is not satisfied. For the avoidance of doubt, upon termination of the Aggregate Commitments and payment in full of all Obligations in cash and in immediately available funds (other than any Remaining Obligations) and
the expiration without any pending drawing or termination of all Letters of Credit (other than any Remaining Obligations), this Agreement shall automatically terminate and the Administrative Agent shall comply with
Section 9.01(c) and
Section 9.11.
(i) The Aggregate Commitments under a Term Loan Tranche shall be automatically and permanently reduced to zero on the date of the
initial incurrence of Term Loans under such Term Loan Tranche, which in the case of the Initial Term Commitments shall be the Closing Date (except as provided pursuant to the definitive documentation relating to any Term Loan Tranche that is
in the form of a delayed draw facility).
(ii) Upon the incurrence by any Restricted Group Member of any Specified Refinancing Debt constituting revolving credit facilities, the Revolving Credit Commitments
of the Lenders under the Tranche of Revolving Credit Loans being refinanced shall be automatically and permanently reduced on a ratable basis by an amount equal to
100.0% of the Commitments under such Specified
Refinancing Debt constituting revolving credit facilities.
(iii) If after giving effect to any reduction or termination of Revolving Credit Commitments under this
Section 2.06, the Letter of Credit Sublimit exceeds the amount of the Revolving Credit Facility at such time, the Letter of Credit Sublimit shall be automatically reduced by the amount of such excess.
(iv) The aggregate Revolving Credit Commitments with respect to any Tranche of the Revolving Credit Facility shall automatically and
permanently be reduced to zero on the Maturity Date with respect to such Tranche of the Revolving Credit Facility.
(c) Application of Commitment Reductions; Payment of Fees. The Administrative Agent will promptly notify
the applicable Lenders of the applicable Facility of any termination or reduction of the Commitments under any Term Loan Tranche, the Letter of Credit Sublimit or the Revolving Credit Commitment under this
Section
2.06. Upon any reduction of Commitments under a Facility or a Tranche thereof, the Commitment of each Lender under such Facility or Tranche thereof shall be reduced by such Lender’s ratable share of the amount by which such
Facility or Tranche thereof is reduced (other than the termination of the Commitment of any Lender as provided in
Section 3.08). All facility fees accrued until the effective date of any
termination of the Aggregate Commitments and unpaid, shall be paid on the effective date of such termination. For the avoidance of doubt, to the extent that any portion of the Revolving Credit Loans have been refinanced with one or more new
revolving credit facilities constituting Specified Refinancing Debt, any prepayments of Revolving Credit Loans made pursuant to this
Section 2.06 (other than any prepayments of Revolving
Credit Loans made pursuant to
Section 2.06(b)(ii)) shall be allocated ratably among the Revolving Tranches.
Section 2.07 Repayment of Loans.
(a) Initial Term Loans. The Borrower shall repay to the Administrative Agent for the ratable account of
the Initial Term Lenders the aggregate principal amount of the Initial Term Loans outstanding in consecutive quarterly installments as follows (which installments shall, to the extent applicable, be reduced as a result of the application of
prepayments in accordance with the order of priority set forth in
Sections 2.05 and
2.06, or be increased as a result of any increase in the amount of Initial Term Loans pursuant to
Section 2.14 (such increased amortization payments to be calculated in the same manner (and on the same basis) as the schedule set forth below for the Initial Term Loans made as of the Closing
Date)):
| |
Date
|
|
Amount
|
| |
The last Business Day of each fiscal quarter starting with the fiscal quarter ending on March 31, 2025 and through and including the last full fiscal quarter ending prior to the Maturity Date
|
|
1.25% of the aggregate initial principal amount of the Initial Term Loans on the Closing Date
|
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Maturity Date for the Initial Term Loans
|
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All unpaid aggregate principal amounts of any outstanding Initial Term Loans
|
provided,
however, that
(i) if the date
scheduled for any
principal repayment installment is not a Business Day, such principal repayment installment shall be repaid on the immediately preceding Business Day and (ii) the final principal repayment installment of the Initial Term Loans shall be repaid
on the Maturity Date for the Initial Term Loans and in any event shall be in an amount equal to the aggregate principal amount of all Initial Term Loans outstanding on such date.
(b) Revolving Credit Loans. The Borrower shall repay to the Administrative Agent for the ratable account
of the Appropriate Lenders on the applicable Maturity Date for the Revolving Credit Facilities of a given Tranche the aggregate principal amount of all of its Revolving Credit Loans of such Tranche outstanding on such date.
(c) All Loans shall be repaid, whether pursuant to this
Section 2.07
or otherwise, in the currency in which they were made.
(a) Each SOFR Loan under a Facility shall bear interest on the outstanding
principal amount thereof for each Interest Period at a rate per annum equal to the sum of
(A) Term SOFR for such Interest Period,
plus (B)
the Applicable Rate for SOFR Loans under such Facility.
(b) Each ABR Loan under a Facility shall bear interest on the outstanding principal amount thereof from the
applicable borrowing date or conversion date, as applicable, at a rate per annum equal to the sum of
(A) the ABR,
plus (B) the Applicable
Rate for ABR Loans under such Facility.
(c) Notwithstanding the foregoing, during the continuance of an Event of Default
under Sections 8.01(a), (f) or (g), the Borrower shall pay interest on all overdue Obligations hereunder, which shall include all Obligations following an acceleration pursuant to
Section
8.02 (including an automatic acceleration), at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws. Accrued and unpaid interest on past due amounts
(including interest on past due interest) shall be due and payable upon demand.
(d) Accrued interest on each Loan shall be due and payable in arrears on each Interest Payment Date applicable
thereto and at such other times as may be specified herein;
provided that in the event of any repayment or prepayment of any Loan (other than Revolving Credit Loans bearing interest based on the ABR
that are repaid or prepaid without any corresponding termination or reduction of the Revolving Credit Commitments other than as set forth in
Section 2.14(e)), accrued interest on the principal
amount repaid or prepaid shall be payable on the date of such repayment or prepayment. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any
proceeding under any Debtor Relief Law.
(e) Interest on each Loan shall be payable in the currency in which each Loan was made.
(f) All computations of interest hereunder shall be made in accordance with
Section
2.10 of this Agreement.
Section 2.09 Fees. In addition to certain fees described in
Sections 2.03(h) and
(i):
(a) Revolving Credit Commitments Commitment Fee. The Borrower shall
pay to the Administrative Agent for the account of each Revolving Credit Lender in accordance with its Pro Rata Share of each Tranche of the Revolving Credit Facility, a commitment fee (a “Commitment Fee”)
equal to the Applicable Commitment Fee, multiplied by the average daily amount for the applicable fiscal quarter by which the aggregate Revolving Credit Commitments under such Tranche exceed the sum
of (A) the Outstanding Amount of Revolving Credit Loans under such Tranche and (B) the Outstanding Amount of L/C Obligations under such Tranche, subject to adjustment as provided
in Section 2.17. The Commitment Fee shall accrue at all times from the Closing Date until the Maturity Date for the Revolving Credit Facility, and shall be due and payable quarterly in arrears on January 15, April 15, July 15 and
October 15 of each year, beginning with the first such date to occur following the Closing Date, and on the Maturity Date for the Revolving Credit Facility. For the avoidance of doubt, the Commitment Fee payable hereunder shall accrue and
be payable in Dollars.
(b) Other Fees. The Borrower shall pay to the Lenders, the Administrative Agent and the Collateral Agent
such fees as shall have been separately agreed upon in writing in the amounts and at the times so specified.
Section 2.10 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate.
(a) All computations of interest for ABR Loans when the Alternate Base Rate is based on the Prime Rate shall be
made on the basis of a year of
365 or 366 days, as applicable, and actual days elapsed. All other computations of fees and interest shall be made on the basis of a
360-day year
and actual days elapsed. Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid;
provided that any Loan that is repaid on the same day on which it is made shall, subject to
Section 2.12(a), bear interest for one day. Each determination by the
Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.
(b) If, as a result of any restatement of or other adjustment to the financial statements of the Borrower or for
any other reason, the Borrower or the Lenders determine that
(i) the Consolidated Total Net Leverage Ratio as calculated by the Borrower as of any applicable date was inaccurate and (ii) a proper calculation of
such ratio would have resulted in higher interest and/or fees for any period, the Borrower shall be obligated to pay to the Administrative Agent for the account of the applicable Lenders or the applicable L/C Issuer, as applicable, promptly
on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to the Borrower under the Bankruptcy Code of the United States, automatically and with any such demand by the
Administrative Agent being excused), an amount equal to the excess of the amount of interest and fees that should have been paid for such period over the amount of interest and fees actually paid for such period. This
clause (b)
shall not limit the rights of the Administrative Agent, any Lender or the applicable L/C Issuer, as applicable, under
Section 2.03(d)(iii),
Sections 2.03(h)
or
(i),
Section 2.08 or under
Article VIII. Except in any case where a demand is excused as provided above, any additional interest and fees
under this
Section 2.10(b) shall not be due and payable until a demand is made for such payment by the Administrative Agent and accordingly, any nonpayment of such interest and fees as result of any such inaccuracy shall not
constitute a Default (whether retroactively or otherwise), and none of such additional amounts shall be deemed overdue or accrue interest at the Default Rate, in each case at any time prior to the date that is five (5) Business Days following
such demand.
Section 2.11 Evidence of Indebtedness.
(a) The Credit Extensions made by each Lender shall be evidenced by one or more accounts or records maintained by
such Lender and evidenced by one or more entries in the Register maintained by the Administrative Agent, acting solely for this purpose as a non-fiduciary agent of the Borrower, in each case in the ordinary course of business. The accounts
or records maintained by each Lender shall be prima facie evidence absent manifest error of the amount of the Credit Extensions made by the Lenders to the Borrower and the interest and payments thereon. Any failure to so record or any error
in doing so shall not, however, limit the obligation of the Borrower hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict between the accounts and records maintained by any Lender and the accounts
and records of the Administrative Agent in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error. Upon the written request of any Lender made through the Administrative
Agent, the Borrower shall execute and deliver to such Lender (through the Administrative Agent) a Note payable to such Lender, which execution and delivery the Administrative Agent shall record in the Register, which, to the extent consistent
with the records in the Register, shall evidence such Lender’s Loans in addition to such accounts or records. Each Lender may attach
schedules to its Note and endorse thereon the date, Type (if applicable),
amount and maturity of its Loans and payments with respect thereto.
(b) In addition to the accounts and records referred to in
Section 2.11(a), each Lender and the
Administrative Agent shall maintain in accordance with its usual practice accounts or records and, in the case of the Administrative Agent, entries in the Register, evidencing the purchases and sales by such Lender of participations in
Letters of Credit. In the event of any conflict between the accounts and records maintained by the Administrative Agent and the accounts and records of any Lender in respect of such matters, the accounts and records of the Administrative
Agent shall control in the absence of manifest error.
(c) Entries made in good faith by the Administrative Agent in the Register pursuant to
Sections
2.11(a) and
(b), and by each Lender in its accounts or records pursuant to
Sections 2.11(a) and
(b), shall be prima facie
evidence of the amount of principal and interest due and payable or to become due and payable from the Borrower to, in the case of the Register, each Lender and, in the case of such accounts or records, such Lender, under this Agreement and
the other Loan Documents, absent manifest error;
provided that the failure of the Administrative Agent or such Lender to make an entry, or any finding that an entry is incorrect, in the Register or
such accounts or records shall not limit the obligations of the Borrower under this Agreement and the other Loan Documents.
Section 2.12 Payments Generally; Administrative Agent’s Clawback.
(a) General. All payments to be made by the Borrower shall be made without
condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to the Administrative Agent, for the account of the respective
Lenders to which such payment is owed, at the Administrative Agent’s Office in Dollars and in immediately available funds not later than 1:00 p.m. (Chicago time) on the date specified herein. The Administrative Agent will promptly distribute
to each Lender its ratable share in respect of the relevant Facility or Tranche thereof (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office. All payments
received by the Administrative Agent after 1:00 pm (Chicago time) shall be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue. If any payment to be made by the Borrower shall come
due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as applicable;
provided,
however, that, if such extension would cause payment of interest on or principal of SOFR Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding
Business Day.
(b) (i)
Funding by Lenders; Presumption by Administrative Agent. Unless the Administrative Agent shall have received notice
from a Lender prior to the proposed date of any Borrowing of Loans (or, in the case of any Borrowing of ABR Loans, prior to
12:00 noon (Chicago time) on the date of such Borrowing) that such Lender will not make
available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with and at the time required by
Section 2.02(b) and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if any Lender does not in fact make its share of the applicable Borrowing
available to the Administrative Agent, then such Lender and the Borrower agrees to pay to the Administrative Agent forthwith on demand an amount equal to such applicable share in immediately available funds with interest thereon, for each day
from and including the date such amount is made available to the Borrower by the Administrative Agent to but excluding the date of payment to the Administrative Agent, at
(A) in the case of a payment to be made
by such Lender, the greater of the NYFRB Rate and a rate reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation,
plus any reasonable
administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing and
(B) in the case of a payment to be made by the Borrower, the interest rate
applicable to ABR Loans under the applicable Facility. If both the Borrower and such Lender pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the
amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid (less interest and fees) shall constitute such Lender’s Loan
included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make its share of any Borrowing available to the Administrative Agent.
(ii)
Payments by the Borrower; Presumptions by Administrative Agent. Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the
Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C Issuer, as applicable, the amount due. In such event, if the Borrower
does not in fact make such payment, then each of the Appropriate Lenders or the applicable L/C Issuer, as applicable, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or such
L/C Issuer, in immediately available funds with interest thereon, for each day from and including the date such amount is distributed by the Administrative Agent to but excluding the date of payment to the Administrative Agent, at the greater
of the NYFRB Rate and a rate reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation,
plus any reasonable administrative, processing or
similar fees customarily charged by the Administrative Agent in connection with the foregoing.
A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this Section 2.12(b) shall be conclusive, absent manifest error.
(c) Failure to Satisfy Conditions Precedent. If any Lender makes available to the Administrative Agent
funds for any Loan to be made by such Lender as provided in the foregoing provisions of this
Article II, and such funds are not made available to the Borrower by the Administrative Agent
because the conditions to the applicable Credit Extension set forth in
Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such
funds (in like funds as received from such Lender) to such Lender on demand, without interest.
(d) Obligations of the Lenders Several. The obligations of the Lenders hereunder to make Loans, to fund
participations in Letters of Credit and to make payments pursuant to
Section 9.07 are several and not joint. The failure of any Lender to make any Loan or to fund any such participation or to
make any payment under
Section 9.07 on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible
for the failure of any other Lender to so make its Loan or, to fund its participation or to make its payment under
Section 9.07.
(e) Funding Source. Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place
or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(f) Insufficient Funds. If at any time insufficient funds are received by and available to the
Administrative Agent to pay fully all amounts of principal, L/C Borrowings, interest and fees then due hereunder, such funds shall be applied
(i)
first, toward payment of interest and fees then due
hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii)
second, toward payment of principal and L/C Borrowings then due hereunder, ratably among the
parties entitled thereto in accordance with the amounts of principal and L/C Borrowings then due to such parties.
(g) Unallocated Funds. If the Administrative Agent receives funds for application to the Obligations of
the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may, but shall not be obligated to, elect to
distribute such funds to each of the Lenders in accordance with such Lender’s ratable share of the sum of
(a) the Outstanding Amount of all Loans outstanding at such time and
(b)
the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
Section 2.13 Sharing of Payments. If, other than as expressly provided elsewhere herein (including the application of funds arising from the existence of a
Defaulting Lender), any Lender shall obtain on account of the Loans made by it, or the participations in L/C Obligations held by it, any payment (whether voluntary, involuntary, through the exercise of any right of setoff, or otherwise) in
excess of its ratable share (or other share contemplated hereunder) thereof, such Lender shall immediately
(a) notify the Administrative Agent of such fact and
(b) purchase from
the other Lenders such participations in the Loans made by them and/or such subparticipations in the participations in L/C Obligations held by them, as applicable, as shall be necessary to cause such purchasing Lender to share the excess
payment in respect of such Loans or such participations, as applicable, pro rata with each of them;
provided,
however, that if all or any portion of such
excess payment is thereafter recovered from the purchasing Lender under any of the circumstances described in
Section 10.06 (including pursuant to any settlement entered into by the purchasing
Lender in its discretion), such purchase shall to that extent be rescinded and each other Lender shall repay to the purchasing Lender the purchase price paid therefor, together with an amount equal to such paying Lender’s ratable share
(according to the proportion of
(i) the amount of such paying 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, without further interest thereon. The Borrower agrees that any Lender so purchasing a participation from another Lender may, to the fullest extent permitted by Law, exercise all
its rights of payment (including the right of setoff, but subject to
Section 10.09) with respect to such participation as fully as if such Lender were the direct creditor of the Borrower in
the amount of such participation. The Administrative Agent will keep records (which shall be conclusive and binding in the absence of manifest error) of participations purchased under this
Section 2.13
and will in each case notify the Lenders following any such purchases or repayments. Each Lender that purchases a participation pursuant to this
Section 2.13 shall from and after such
purchase have the right to give all notices, requests, demands, directions and other communications under this Agreement with respect to the portion of the Obligations purchased to the same extent as though the purchasing Lender were the
original owner of the Obligations purchased. For the avoidance of doubt, the provisions of this
Section 2.13 shall not be construed to apply to
(A) the
application of Cash Collateral provided for in
Section 2.16,
(B) the assignments and participations (including by means of a dutch auction, exchange, open market
debt repurchase, or otherwise) described in
Section 10.07,
(C)
(i) the incurrence of any New Term Loans in accordance with
Section 2.14, (ii) the prepayment of Revolving Credit Loans in accordance with
Section 2.14(e) in connection with a Revolving Credit Commitment
Increase or (iii) any Specified Refinancing Debt in accordance with
Section 2.18,
(D) any Extension described in
Section
2.19, or
(E) any applicable circumstances contemplated by
Sections 2.05(b),
2.14,
2.17 or
3.08. For purposes of
clause (b) of
the definition of “Excluded Taxes,” a Lender that acquires a participation pursuant to this
Section 2.13 shall be treated as having acquired such participation on the earlier date(s) on which
such Lender acquired the applicable interest(s) in the Commitment(s) or Loan(s) (as applicable) to which such participation relates.
Section 2.14 Incremental Facilities.
(a) The Borrower may, from time to time after the Closing Date, upon notice by the
Borrower to the Administrative Agent and the Person appointed by the Borrower to arrange an incremental Facility (such Person (who may be
(i) the Administrative Agent, if it so agrees, or (ii) any other Person
appointed by the Borrower), the “
Incremental Arranger”) specifying the proposed amount thereof and the proposed currency denomination thereof, request
(i) an increase in
the Commitments under any Revolving Tranche (which shall be on the same terms as, and become part of, the Revolving Tranche proposed to be increased) (each, a “
Revolving Credit Commitment Increase”),
(ii) an increase in any Term Loan Tranche then outstanding (which shall be on the same terms as, and become part of, the Term Loan Tranche proposed to be increased hereunder (except as otherwise provided in
clause (d) below with
respect to amortization)) (each, a “
Term Commitment Increase”), (iii) the addition of one or more new revolving credit facilities to the Facilities, in each case, in such currency or currencies as the
Borrower identifies in such notice (each, a “
New Revolving Facility” and, any advance made by a Lender thereunder, a “
New Revolving Loan”; and the commitments
thereof, the “
New Revolving Commitment”) and (iv) the addition of one or more new term loan facilities (including one or more delayed draw term loan facilities), in each case, in such currency or
currencies as the Borrower identifies in such notice (each, a “
New Term Facility”, together with any New Revolving Facility, Term Commitment Increase or Revolving Credit Commitment Increase, the “
Incremental Facilities”; and any advance made by a Lender thereunder, a “
New Term Loan”; and the commitments thereof, the “
New Term
Commitment” and such New Term Commitment, together with the Revolving Credit Commitment Increase, the New Revolving Commitments and the Term Commitment Increase, the “
New Loan Commitments”) in
an amount not to exceed the sum of:
(w)
(i) the sum of
(A) the greater of
(1) $220
,000,000
and (2)
100.0% of LTM EBITDA and
(B) the unused amount of the General Debt Amount,
minus (ii) the amount of any Indebtedness previously
incurred in reliance on this
clause (w) as incremental facilities incurred pursuant to this
Section 2.14, Incremental Equivalent Debt, Ratio Debt and/or Incurred Acquisition
Indebtedness (and not redesignated as incurred under any other provision of the Incremental Amount (in accordance with this Agreement) (the “
Cash-Capped Incremental Facility”),
(x) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as the Maximum Leverage Requirement is satisfied,
(y) an amount equal to
(i)
(A) all voluntary prepayments of Term Loans or any other long-term Indebtedness that is secured by a
Lien on the Collateral on a senior or
pari passu basis with the Initial Term Loans (including, for the avoidance of doubt, any New Term Loans that are secured by a Lien on the Collateral on a
pari passu basis with the Initial Term Loans) (including any payments made pursuant to
Section 2.05(a) or
Section
3.08(a)) and
(B) all repurchases and/or cancellations of Term Loans or any other long-term Indebtedness that is secured by a Lien on the Collateral on a senior or
pari passu basis with the Initial Term Loans (including, for the avoidance of doubt, any New Term Loans that are secured by a Lien on the Collateral on a
pari passu basis with the
Initial Term Loans) in an amount equal to the amount of the Indebtedness retired in connection with such repurchase and (ii)
(A) all voluntary prepayments of Revolving Credit Loans and any other revolving credit
loans that are secured by a Lien on the Collateral on a
pari passu basis with the Initial Term Loans (including, for the avoidance of doubt, any New Revolving Loans that are secured by a Lien on the
Collateral on a
pari passu basis with the Initial Term Loans) (including any payments made pursuant to
Section 2.05(a) or
Section 3.08(a)) to the extent accompanied by a corresponding, permanent reduction in the applicable revolving credit commitment,
(B) all repurchases and/or cancellations of Revolving
Credit Loans or any other revolving credit loans that are secured by a Lien on the Collateral on a
pari passu basis with the Initial Term Loans (including, for the avoidance of doubt, any New
Revolving Loans that are secured by a Lien on the Collateral on a senior or
pari passu basis with the Initial Term Loans) in an amount equal to the amount of the Indebtedness retired in connection
with such repurchase and
(C) all voluntary prepayments, repurchases and/or cancellations of any other First Lien Specified Debt, in each case under this
clause (y),
(x)
including any payments made at a discount to par or via an open-market purchase (with credit given for the actual amount of any cash payment) and
(y) to the extent not funded with the proceeds of long-term
Indebtedness (it being agreed and understood, for the avoidance of doubt, that Indebtedness incurred pursuant to any revolving credit facility (including the Revolving Credit Facility) shall not constitute long-term Indebtedness for such
purpose), in each case less the amount of any Indebtedness previously incurred in reliance on this
clause (y) as incremental facilities incurred pursuant to this
Section 2.14,
Incremental Equivalent Debt, Ratio Debt and/or Incurred Acquisition Indebtedness (and not redesignated as incurred under any other provision of the Incremental Amount in accordance with this Agreement) (the “
Prepayment-Based
Incremental Facility”), and
(z)
(i) in the case of any New Revolving Facility or New Term Facility that effectively extends the maturity date of any First Lien Specified Debt, Junior Lien
Specified Debt or Unsecured Specified Debt, an amount equal to the portion of such First Lien Specified Debt, Junior Lien Specified Debt or Unsecured Specified Debt that will be replaced by such New Revolving Facility or New Term Facility
(the “
Effective Extension Incremental Facility”) and (ii) in the case of any New Revolving Facility or Revolving Credit Commitment Increase that effectively replaces any Commitments under the Revolving
Credit Facility or any New Revolving Facility or Revolving Credit Commitment Increase that is terminated pursuant to
Section 3.08(a), an amount equal to the portion of such Commitments that
will be so terminated;
(such sum of the foregoing
clauses (w) through
(z), at any such time and subject to
Section 1.02(i),
the “
Incremental Amount”);
provided that any such request for an increase shall be in a minimum amount of the lesser of
(x) $5,000,000 or, in the
case of any New Loan Commitments denominated in an Alternative Currency, the equivalent Dollar amount, and
(y) the entire amount of any increase that may be requested under this
Section 2.14;
provided,
further, that for purposes of any New Loan Commitments established pursuant to this
Section 2.14,
Incremental Equivalent Debt Incurred pursuant to
Section 2.15, Ratio Debt
and any Incurred Acquisition Indebtedness:
(A) unless the Borrower elects otherwise,
(x) the Borrower shall be deemed to have used amounts under the Ratio-Based Incremental
Facility (to the extent compliant therewith) prior to using amounts under the Effective Extension Incremental Facility, the Prepayment-Based Incremental Facility or the Cash-Capped Incremental Facility (or, solely with respect to Incurred
Acquisition Indebtedness, the Incurred Acquisition General Basket) and
(y) the Borrower shall be deemed to have used the Prepayment-Based Incremental Facility prior to utilization of the Cash-Capped Incremental
Facility;
(B) New Loan Commitments pursuant to this
Section 2.14, Incremental Equivalent Debt
pursuant to
Section 2.15, Ratio Debt and Incurred Acquisition Indebtedness may be incurred substantially concurrently under the Ratio-Based Incremental Facility (to the extent compliant
therewith), the Effective Extension Incremental Facility, the Prepayment-Based Incremental Facility and the Cash-Capped Incremental Facility (and, solely with respect to Incurred Acquisition Indebtedness, the Incurred Acquisition General
Basket) or any combination of any of the foregoing, and proceeds from any such incurrence may be utilized in a single transaction or series of related transactions by, unless the Borrower elects otherwise, first, calculating the incurrence
under the Ratio-Based Incremental Facility (without inclusion of
(x) any amounts incurred substantially concurrently pursuant to the Prepayment-Based Incremental Facility or the Cash-Capped Incremental Facility
(or, solely with respect to Incurred Acquisition Indebtedness, the Incurred Acquisition General Basket),
(y) any amounts incurred substantially concurrently under any fixed basket under
Section 7.01 or
(z) any revolving credit loans incurred substantially concurrently with such single transaction or series of related transactions) and then calculating the
incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts utilized pursuant to the Cash-Capped Incremental Facility (and, solely with respect to Incurred Acquisition Indebtedness, the Incurred Acquisition
General Basket)) and then calculating the incurrence under the Effective Extension Incremental Facility and the Cash-Capped Incremental Facility (and, solely with respect to Incurred Acquisition Indebtedness, the Incurred Acquisition General
Basket), as applicable;
(C) all or any portion of Indebtedness originally designated as incurred under the Prepayment-Based Incremental Facility or the
Cash-Capped Incremental Facility (or, solely with respect to Incurred Acquisition Indebtedness, the Incurred Acquisition General Basket) shall automatically cease to be deemed incurred under the Prepayment-Based Incremental Facility or the
Cash-Capped Incremental Facility (or, solely with respect to Incurred Acquisition Indebtedness, the Incurred Acquisition General Basket) and shall instead be deemed incurred under the Ratio-Based Incremental Facility from and after the first
date on which the Borrower would be permitted to incur all or such portion, as applicable, of the aggregate principal amount of such Indebtedness under the Ratio-Based Incremental Facility (for the avoidance of doubt, which determination
shall be made without duplication of such Indebtedness originally designated as incurred under the Prepayment-Based Incremental Facility or the Cash-Capped Incremental Facility (or, solely with respect to Incurred Acquisition Indebtedness,
the Incurred Acquisition General Basket)) (which, for the avoidance of doubt, shall have the effect of increasing the Prepayment‑Based Incremental Facility and/or the Cash-Capped Incremental Facility (and/or, solely with respect to Incurred
Acquisition Indebtedness, the Incurred Acquisition General Basket), as applicable, by all or such portion, as applicable, of the aggregate principal amount of such Indebtedness); and
(D) solely for the purpose of cash netting in calculating the Consolidated First Lien Net Leverage Ratio or the Consolidated Total Net Leverage Ratio to
determine the availability under the Ratio-Based Incremental Facility at the time of incurrence any cash proceeds of any New Loan Commitments incurred pursuant to this
Section 2.14, any
Incremental Equivalent Debt Incurred pursuant to
Section 2.15, any Ratio Debt or any Incurred Acquisition Indebtedness, in each case,
incurred at such test date shall be excluded for purposes of calculating cash or Cash Equivalents.
The Borrower may designate any Incremental Arranger of any New Loan Commitments with such titles under the New Loan Commitments as Borrower may deem appropriate.
(b) For the avoidance of doubt, the Borrower will not be obligated to approach any Lender to participate in any New
Loan Commitments. Any Lender approached to participate in any New Loan Commitments may elect or decline, in its sole discretion, to participate in such increase or new facility. The Borrower may also invite additional Eligible Assignees
reasonably satisfactory to the Incremental Arranger and with the consent of the Administrative Agent and, solely in connection with a Revolving Credit Commitment Increase or New Revolving Facility, each L/C Issuer (to the extent the consent
of any of the foregoing would be required to assign Revolving Credit Loans or Term Loans, as applicable, to such Eligible Assignee, which consent shall not be unreasonably withheld, delayed or conditioned) to become Lenders pursuant to a
joinder agreement to this Agreement. Unless requested by the Borrower, neither the Administrative Agent nor the Collateral Agent (in their respective capacities as such) shall be required to execute, accept or acknowledge any joinder
agreement pursuant to this
Section 2.14 and such execution shall not be required for any such joinder agreement to be effective;
provided that, with
respect to any New Loan Commitments, the Borrower must provide to the Administrative Agent the documentation providing for such New Loan Commitments.
(c) If (i) a Revolving Tranche or a Term Loan Tranche is increased in accordance with this
Section 2.14 or (ii) a New Term Facility or New Revolving Facility is added in accordance with this
Section 2.14, the Incremental Arranger and the Borrower shall
determine the effective date (the “
Increase Effective Date”) and the final allocation of such increase, New Term Facility or New Revolving Facility among the applicable Lenders. The Incremental
Arranger shall promptly notify the applicable Lenders of the final allocation of such increase, New Term Facility or New Revolving Facility and the Increase Effective Date. In connection with
(i) any increase
in a Term Loan Tranche or Revolving Tranche or (ii) any addition of a New Term Facility or New Revolving Facility, in each case, pursuant to this
Section 2.14, this Agreement and the other
Loan Documents may be amended in writing (which may be executed and delivered by the Borrower, the Administrative Agent and the Incremental Arranger (and the Lenders hereby authorize any such Incremental Arranger to execute and deliver any
such documentation)) in order to establish the New Term Facility or New Revolving Facility or to effectuate the increases to the Term Loan Tranche or Revolving Tranche and to reflect any technical changes necessary or appropriate to give
effect to such increase or new facility in accordance with its terms as set forth herein pursuant to the documentation relating to such New Term Facility or New Revolving Facility. As of the Increase Effective Date, in the case of an
increase to an existing Term Loan Tranche, the amortization schedule for such Term Loan Tranche then increased set forth in
Section 2.07(a) (or any other applicable amortization schedule for
New Term Loans or Specified Refinancing Term Loans) shall be amended in writing (which may be executed and delivered by the Borrower, the Administrative Agent and the Incremental Arranger (and the Lenders hereby authorize any such Incremental
Arranger to execute and deliver any such documentation)) to increase the then-remaining unpaid installments of principal by an aggregate amount equal to the additional Loans under such Term Loan Tranche being made on such date, such aggregate
amount to be applied to increase such installments ratably in accordance with the amounts in effect immediately prior to the Increase Effective Date.
(d) With respect to any Revolving Credit Commitment Increase, Term Commitment Increase or addition of New Term Facility or New Revolving
Facility pursuant to this Section 2.14:
(i)
no Event of Default (subject to Section 1.02(i)) would exist immediately after giving
effect thereto;
(A) in the case of any increase of the Revolving Tranche,
(1) the final maturity shall be the same as the Maturity Date applicable to the applicable Revolving
Credit Facility,
(2) no amortization or mandatory commitment reduction prior to the Latest Maturity Date applicable to the Revolving Credit Facility shall be required and (3) the terms and documentation
applicable to the Revolving Credit Facility shall apply (other than with respect to pricing (except with respect to the Applicable Rate and any interest rate floors) and fees),
(B) in the case of any New Revolving Facility,
(1) the final maturity shall be no earlier than the Latest Maturity Date applicable to the Revolving Credit
Facility,
(2) no amortization or mandatory commitment reduction prior to the Latest Maturity Date applicable to the Revolving Credit Facility shall be required and (3) shall have terms that are substantially the
same as those applicable to the Revolving Credit Facility (other than with respect to pricing and fees) or that are otherwise reasonably acceptable to the Administrative Agent (it being understood that certain provisions regarding prepayment,
borrowing, participation and commitment reduction may differ and that any terms that are applicable only after the Latest Maturity Date of the then existing Revolving Credit Facility shall be deemed acceptable to the Administrative Agent),
(C) in the case of an increase to an existing Term Loan Tranche,
(1) the final maturity shall be the same as the Maturity Date applicable to the applicable
Term Loan Tranche,
(2) the amortization shall be as described under
clause (c) above and (3) the terms and documentation applicable to the applicable existing Term Loan Tranche shall apply (other than
with respect to pricing (except with respect to the Applicable Rate and any interest rate floors) and fees),
(D) in the case of any New Term Facility, the final maturity of the New Term Loans thereunder shall be no earlier than the Latest Maturity Date for, and such New Term Loans shall not have a
Weighted Average Life to Maturity shorter than the remaining Weighted Average Life to Maturity of, any then outstanding Term Loans;
provided that
(x) Extendable Bridge
Loans/Interim Debt and
(y) an aggregate principal amount of New Term Loans under such New Term Facility not in excess of the maximum aggregate principal amount then permitted to be incurred in reliance on the
Inside Maturity Basket, in each case, may have a maturity date earlier than the Latest Maturity Date for any then outstanding Term Loans (or, in the case of New Term Facilities incurred in reliance on an Inside Maturity Basket, the Facilities
to which such Inside Maturity Basket applies) and the Weighted Average Life to Maturity thereof may be shorter than the remaining Weighted Average Life to Maturity of any then outstanding Term Loans
(or, in the case of New Term Facilities incurred in reliance on an Inside Maturity Basket, the Facilities
to which such Inside Maturity Basket applies (it being agreed that no such final Stated Maturity or
Weighted Average Life to Maturity of New Term Facilities incurred pursuant to this clause (y) shall be less than the final Stated Maturity and remaining Weighted Average Life to Maturity of the Initial Term Loans)); and
(E) (to the extent the initial Facilities are then outstanding) in the case of any New Term Facility or New Revolving Facility, the terms of such facility (other than pricing, final maturity
and Weighted Average Life to Maturity), taken as a whole, shall not be materially more restrictive than the terms of the Initial Term Loans or the Initial Revolving Credit Commitments, respectively, as determined in good faith by the Borrower
(but excluding any terms
(x) that are added in the applicable initial Facility for the benefit of the Lenders thereunder pursuant to an amendment hereto (with no consent of the Lenders being required),
(y) that are only applicable to periods after the latest final maturity date of the applicable initial Facility existing at the time of the incurrence of such facility or
(z) reflect
market terms and conditions (taken as a whole) (as determined by the Borrower in good faith) at the time of incurrence);
provided that, notwithstanding anything herein to the contrary, any New Term
Facility in the form of term “b” loans (the New Term Loans thereunder, “
Term B Loans”)
(v) may include a basket providing that future Incremental Facilities in an
aggregate amount equal to (1) the greater of $220,000,000 and 100% of LTM EBITDA,
plus (2) the amount of any prepayments of Term Loans under any future term loan “a”
facility (but not, for the avoidance of doubt, the Initial Term Loans), may have a maturity date (and Weighted Average Life to Maturity) that is earlier than the latest maturity and Weighted Average Life to Maturity of such Term B Loans (but
not, for the avoidance of doubt, the Initial Term Loans) (the “
Inside Maturity Basket”);
(w) may include, applicable only to any Term B Loans, “anti-Windstream” two (2)
year statute of limitations on known defaults and anti-net-short language on terms agreed between the Borrower and the Administrative Agent,
(x) may include a customary “excess cash flow” mandatory prepayment
event,
(y) may have customary call-protection including “soft-call” protection in connection with any repricing transaction and
(z) may also, to the extent so provided in the
applicable amendment to this Agreement setting forth the terms of such Term B Loans, specify whether
(A) the Lenders of such Term B Loans shall have any voting rights in respect of the Financial Covenants and
(B) any breach of such covenants would result in a Default or Event of Default for the Lenders of such Term B Loans prior to an acceleration of Commitments or Loans by the applicable Lenders in accordance with the
terms of this Agreement as a result of such breach (such terms described in
clauses (v) through
(y), the “
Permitted TLB Terms”); and
(iii) except as set forth in subclauses (d)(ii)(B) and (d)(ii)(D) above with respect to final maturity and Weighted Average Life to Maturity of any New Term Facility or terms
of a New Revolving Facility, and subject to subclause (d)(ii)(E), any such New Term Facility or New Revolving Facility shall have such terms as are agreed to by the Borrower and the Incremental Arranger (including with respect to the
interest rate margins, OID, upfront fees (if any), interest rate “floors” (if any) and amortization schedule of such New Term Facility or New Revolving Facility, as applicable);
(iv) to the extent reasonably requested by the Incremental Arranger and expressly set forth in the documentation relating to such New Loan Commitments, the Incremental Arranger shall have
received legal opinions, resolutions, officers’ certificates, reaffirmation agreements and/or subsequent ranking agreements or amendment agreements to, confirmations of and/or lower ranking Collateral Documents, as applicable, consistent with
those delivered on the Closing Date under Section 4.01 or delivered from time to time pursuant to Section 6.12, Section 6.14 and/or Section 6.16 with respect to the Borrower and each material Guarantor that is organized in a jurisdiction for which counsel to the Administrative Agent
advises that such deliveries are reasonably necessary to preserve the Collateral in such jurisdiction (other than changes to such legal opinions resulting from a change in Law, change in fact or change to counsel’s form of opinion); and
(v) subject to
Section 1.02(i), except to the extent otherwise agreed by the applicable Incremental Arranger and the Borrower, no Revolving
Credit Commitment Increase, Term Commitment Increase, New Term Commitment or New Revolving Commitment shall become effective unless
(x) the representations and warranties of each the Borrower and each other Loan
Party contained in
Article V or any other Loan Document shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by
materiality) on and as of the date of such effectiveness, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (and in all
respects if any such representation or warranty is already qualified by materiality) as of such earlier date, and except that for purpose of this
clause (v), the representations and warranties contained in
Sections
5.05(a) and
(b) shall be deemed to refer to the most recent financial statements furnished pursuant to
Sections 6.01(a) and
(b),
respectively, prior to such effectiveness or
(y)
in the event that such Revolving Credit Commitment Increase, Term Commitment Increase, New Term Commitment or New
Revolving Commitment
is used to finance a Limited Condition Transaction, the Specified Representations, and in the case of any Limited Condition Transaction consisting of an acquisition, those
representations of the seller or the target company (as applicable) included in the acquisition agreement related to such acquisition that are material to the interests of the Lenders in respect of such Revolving Credit Commitment
Increase, Term Commitment Increase, New Term Commitment or New Revolving Commitment
and only to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations under such
acquisition agreement as a result of a failure of such representations to be accurate, shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by
materiality) on and as of the date of such effectiveness, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (and in all
respects if any such representation or warranty is already qualified by materiality) as of such earlier date.
Subject to the foregoing, the conditions precedent to each such increase or New Loan Commitment shall be solely those agreed to by the Lenders providing such increase or New Loan Commitment,
as applicable, and the Borrower.
Notwithstanding the foregoing,
(x) to the extent any terms of any Term Commitment Increase, Revolving Credit Commitment Increase, New Term Facility or New
Revolving Facility are more favorable (with respect to the lenders thereunder) than the comparable terms hereunder (with respect to the Lenders under the Initial Term Loans or the
Initial
Revolving Tranche, as applicable), such terms (if favorable to the applicable Lenders) may be, solely at the request of the Borrower, incorporated into this Agreement (or any other applicable Loan Document) for the benefit of the applicable
Lenders (to the extent applicable to such Lender) without further amendment requirements (it being agreed and understood, for the avoidance of doubt, that, at the option of the Borrower and with the consent of the Administrative Agent (not to
be unreasonably withheld or delayed), the Borrower may, but shall not be required to, increase the Applicable Rate or amortization payments relating to any existing Term Facility to bring such Applicable Rate in line with the relevant Term
Commitment Increase or New Term Facility to achieve fungibility with such existing Term Facility) and
(y) such terms other than the terms described in
clause (x) above may, solely at the request of the
Borrower, be incorporated into this Agreement (or any other applicable Loan Document) for the benefit of the applicable Lenders (to the extent applicable to such Lender) without further amendment requirements if reasonably satisfactory to the
Borrower, the Incremental Arranger and the Administrative Agent.
To the extent the Borrower establishes a New Revolving Facility, then the Administrative Agent and the Borrower shall be permitted to amend this Agreement to require borrowings and repayments
on a pro rata basis among Revolving Tranches (except for
(A) payments of interest and fees at different rates on the Revolving Credit Commitments (and related outstandings),
(B)
repayments required upon the Maturity Date of any Revolving Credit Loan and
(C) repayments made in connection with a permanent repayment and termination of the Revolving Credit Loans or Revolving Credit
Commitments of Revolving Credit Loans after the effective date of such New Revolving Facility).
(e) On the Increase Effective Date with respect to an increase to an Existing Revolving Tranche,
(x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit
Commitments (each, a “
Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such
Revolving Credit Lender’s participations hereunder in outstanding L/C Obligations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations
hereunder in L/C Obligations will equal the Pro Rata Share of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and
(y)
if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting
such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with
Section
3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected
pursuant to the immediately preceding sentence. The additional Term Loans made under the Term Loan Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures set forth in
Sections 2.01 and
2.02 and on the date of the making of such New Term Loans, and notwithstanding anything to the contrary set forth in
Sections 2.01 and
2.02,
such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender under such
Term Loan Tranche will participate proportionately in each then outstanding Borrowing of Term Loans under the Term Loan Tranche.
(f) (i) Any New Revolving Facility and New Term Facility,
shall comply with the Incremental Debt Lien/Guarantee Parameters,
(ii) the New Term Facility or New Revolving Facility, as applicable, shall, for purposes of prepayments, be treated substantially the same as (and in any event no more favorably than) the
Initial Term Loans or Initial Revolving Tranche, as applicable, unless the Borrower otherwise elects (but in any event no more favorably than the Initial Term Loans or the Initial Revolving Tranche, as applicable), unless any such more
favorable terms are applicable only after the Latest Maturity Date of the Initial Term Loans and the Initial Revolving Tranche, and
(iii) any New Term Facility that is secured by a lien on the Collateral on a pari passu basis with the Initial Term Loans shall share ratably (or on
a lesser basis) with respect to any mandatory prepayments of the Initial Term Loans (other than mandatory prepayments resulting from a refinancing of any Facility, which may be applied exclusively to the Facility being refinanced and other
than any excess cash flow prepayments in respect of Term B Loans which may be applied ratably across all Term Facilities).
(g) If the Incremental Arranger is not the Administrative Agent, the actions authorized to be taken by the
Incremental Arranger herein shall be done in consultation with the Administrative Agent and, with respect to the preparation of any documentation necessary or appropriate to carry out the provisions of this
Section
2.14 (including amendments to this Agreement and the other Loan Documents), any comments to such documentation reasonably requested by the Administrative Agent shall be reflected therein.
Section 2.15 Incremental Equivalent Debt.
(a) Any Loan Party may from time to time after the Closing Date issue one or more
series of senior secured, senior unsecured, senior subordinated or subordinated notes, loans or Extendable Bridge Loans/Interim Debt (such notes, loans and/or Extendable Bridge Loans/Interim Debt, collectively, “
Incremental Equivalent Debt”) in an amount not to exceed the Incremental Amount available at the time of incurrence (subject to
Section 1.02(i));
provided that
(i) no Event of Default (subject to
Section 1.02(i)) would exist immediately after giving effect to any such incurrence of
Incremental Equivalent Debt and (ii) any such incurrence of Incremental Equivalent Debt shall be in a minimum amount of the lesser of
(x) $5,000,000 (or the equivalent Dollar amount) and
(y) the entire amount that may be requested under this
Section 2.15;
provided,
further,
that:
(A) unless the Borrower elects otherwise,
(x) the Borrower shall be deemed to have used amounts under
the Ratio-Based Incremental Facility (to the extent compliant therewith) prior to using amounts under the Effective Extension Incremental Facility, the Prepayment-Based Incremental Facility or the Cash-Capped Incremental Facility and
(y) the Borrower shall be deemed to have used the Prepayment-Based Incremental Facility prior to utilization of the Cash-Capped Incremental Facility;
(B) New Loan Commitments pursuant to
Section 2.14, Incremental Equivalent Debt
pursuant to this
Section 2.15, Ratio Debt and Incurred Acquisition Indebtedness may be incurred substantially concurrently under the Ratio-Based Incremental Facility (to the extent compliant
therewith), the Effective Extension Incremental Facility, the Prepayment-Based Incremental Facility and the Cash-Capped Incremental Facility or any combination of any of the foregoing, and proceeds from any such incurrence may be utilized in
a single transaction or series of related transactions by, unless the Borrower elects otherwise, first, calculating the incurrence under the Ratio-Based Incremental Facility (without inclusion of
(x) any amounts
incurred substantially concurrently pursuant to the Prepayment-Based Incremental Facility or the Cash-Capped Incremental Facility,
(y) any amounts incurred substantially concurrently under any fixed basket under
Section 7.01 or
(z) any revolving credit loans incurred substantially concurrently with such single transaction or series of related transactions) and then
calculating the incurrence under the Prepayment-Based Incremental Facility (without inclusion of any amounts utilized pursuant to the Cash-Capped Incremental Facility) and then calculating the incurrence under the Effective Extension
Incremental Facility and the Cash-Capped Incremental Facility, as applicable;
(C) all or any portion of Indebtedness originally designated as incurred under the Prepayment-Based Incremental Facility or the Cash-Capped Incremental Facility
shall automatically cease to be deemed incurred under the Prepayment-Based Incremental Facility or the Cash-Capped Incremental Facility and shall instead be deemed incurred under the Ratio-Based Incremental Facility from and after the first
date on which the Borrower would be permitted to incur all or such portion, as applicable, of the aggregate principal amount of such Indebtedness under the Ratio-Based Incremental Facility (for the avoidance of doubt, which determination
shall be made without duplication of such Indebtedness originally designated as incurred under the Prepayment-Based Incremental Facility or the Cash-Capped Incremental Facility) (which, for the avoidance of doubt, shall have the effect of
increasing the Prepayment-Based Incremental Facility and/or the Cash-Capped Incremental Facility, as applicable, by all or such portion, as applicable, of the aggregate principal amount of such Indebtedness); and
(D) solely for the purpose of cash netting in calculating the Consolidated First Lien Net Leverage Ratio or the Consolidated Total
Net Leverage Ratio to determine the availability under the Ratio-Based Incremental Facility at the time of incurrence any cash proceeds of any New Loan Commitments incurred pursuant to
Section 2.14,
any
Incremental Equivalent Debt Incurred pursuant to this
Section 2.15, any Ratio Debt or any Incurred Acquisition Indebtedness, in
each case, incurred at such test date shall be excluded for purposes of calculating cash or Cash Equivalents.
The Borrower may appoint any Person as arranger of such Incremental Equivalent Debt (such Person (who may be the Administrative Agent, if it so agrees), the “Incremental
Equivalent Debt Arranger”).
(b) (i) Any Incremental Equivalent Debt
shall
comply with the Incremental Debt Lien/Guarantee Parameters,
(ii) the final maturity of any Incremental Equivalent Debt shall be no earlier than the Latest Maturity Date for, and such Incremental Equivalent Debt shall not have a Weighted Average Life
to Maturity shorter than the remaining Weighted Average Life to Maturity of, any then outstanding Term Loans;
provided that
(x) Extendable Bridge Loans/Interim Debt and
(y) an aggregate principal amount of Incremental Equivalent Debt not in excess of the maximum aggregate principal amount then permitted to be incurred in reliance on the Inside Maturity Basket, in each case, may
have a maturity date earlier than the Latest Maturity Date for any then outstanding Term Loans (or, in the case of Incremental Equivalent Debt incurred in reliance on an Inside Maturity Basket, the
Facilities
to which such Inside Maturity Basket applies) and the Weighted Average Life to Maturity thereof may be shorter than the remaining Weighted Average Life to Maturity of any then outstanding Term Loans (or, in the case of Incremental
Equivalent Debt incurred in reliance on an Inside Maturity Basket, the
Facilities to which such Inside Maturity Basket applies (it being agreed that no such final Stated Maturity or Weighted Average Life to
Maturity of Incremental Equivalent Debt incurred pursuant to this clause (y) shall be less than the final Stated Maturity and remaining Weighted Average Life to Maturity of the Initial Term Loans)) and
(iii) any Incremental Equivalent Debt (other than any Extendable Bridge Loans/Interim Debt) shall not be subject to any mandatory redemption or prepayment provisions or rights, except to the
extent any such mandatory redemption or prepayment is required to be applied pro rata (or greater than pro rata) to the Initial Term Loans and other Incremental Equivalent Debt that is secured by a lien on the Collateral on a pari passu basis with the Initial Term Loans and other than mandatory prepayments resulting from a refinancing of any Facility, which may be applied exclusively to the Facility being refinanced and other
than any excess cash flow prepayments in respect of Incremental Equivalent Debt structured as term “b” loans, as reasonably determined by the Borrower, which prepayments may be applied ratably across all Term Facilities. Subject to the
foregoing, the conditions precedent to each such incurrence shall be agreed to by the creditors providing such Incremental Equivalent Debt and the Borrower.
(c) The Lenders hereby authorize the Incremental Equivalent Debt Arranger and the Administrative Agent (and the
Lenders hereby authorize the Incremental Equivalent Debt Arranger and the Administrative Agent to execute and deliver such amendments) to enter into amendments to this Agreement and the other Loan Documents with the Borrower as may be
necessary in order to secure any Incremental Equivalent Debt with the Collateral and/or to make such technical amendments as may be necessary or appropriate in the reasonable opinion of the Incremental Equivalent Debt Arranger, the
Administrative Agent and the Borrower in connection with the incurrence of such Incremental Equivalent Debt, in each case on terms consistent with this
Section 2.15. If the Incremental
Equivalent Debt Arranger is not the Administrative Agent, the actions authorized to be taken by the Incremental Equivalent Debt Arranger herein shall be done in consultation with the Administrative Agent and, with respect to applicable
documentation (including amendments to this Agreement and the other Loan Documents), any comments to such documentation reasonably requested by the Administrative Agent shall be reflected therein.
Section 2.16 Cash
Collateral.
(a) Upon the request of the Administrative Agent or the applicable L/C Issuer
(i)
if the applicable L/C Issuer has honored any full or partial drawing request under any Letter of Credit and such drawing has resulted in an L/C Borrowing or (ii) if, as of the Letter of Credit Sublimit Expiration Date, any L/C Obligation for
any reason remains outstanding, the Borrower shall, in each case, promptly deliver to the
Administrative Agent Cash Collateral in
an amount sufficient to cover
103.0% of the then Outstanding Amount of all L/C Obligations. At any time that there shall exist a Defaulting Lender, promptly upon the request of the Administrative Agent or the
applicable L/C Issuer, the Borrower shall deliver to the
Administrative Agent Cash Collateral in an amount sufficient to cover
103.0% of all Fronting Exposure of such Defaulting Lender after giving effect to
Section 2.17(a)(iv) and any Cash Collateral provided by such Defaulting Lender.
(b) All Cash Collateral (other than credit support not constituting funds subject to deposit) shall be maintained
in blocked, deposit accounts at the Administrative Agent or the Collateral Agent (or other financial institution selected by any of them). The Borrower, and to the extent provided by any Revolving Credit Lender, such Revolving Credit Lender,
hereby grant to (and subject to the control of) the Administrative Agent and the Collateral Agent, for the benefit of the Administrative Agent, the applicable L/C Issuer and the Revolving Credit Lenders, and agrees to maintain, a first
priority security interest in all such cash, deposit accounts and all balances therein, and all other property so provided as collateral pursuant hereto, and in all proceeds of the foregoing, all as security for the obligations to which such
Cash Collateral may be applied pursuant to
Section 2.16(c). If at any time the Administrative Agent determines that Cash Collateral is subject to any right or claim of any Person other than the Administrative Agent as herein provided
or that the total amount of such Cash Collateral is less than the applicable Fronting Exposure and other obligations secured thereby, the Borrower and the relevant Defaulting Lender shall, promptly upon demand by the Administrative Agent, pay
or provide to the Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency.
(c) Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under any of this
Section 2.16 or
Sections 2.03,
2.05,
2.06,
2.17,
8.02 or
8.04 in respect of Letters of Credit shall be held and applied to the
satisfaction of the specific L/C Obligations, obligations to fund participations therein (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) and other obligations for which the Cash
Collateral was so provided prior to any other application of such property as may be provided for herein.
(d) Cash Collateral (or the appropriate portion thereof) provided to reduce Fronting Exposure or other obligations
shall be released promptly following
(i) the elimination of the applicable Fronting Exposure (after giving effect to such release) or other obligations giving rise thereto (including by the termination of
Defaulting Lender status of the applicable Lender (or, as appropriate, its assignee following compliance with
Section 10.07(b)(viii))) or (ii) the Administrative Agent’s good faith determination that there exists excess Cash
Collateral;
provided,
however,
(x) that Cash Collateral furnished by or on behalf of a Loan Party shall not be released during
the continuance of a Default under
Sections 8.01(a),
(f) or
(g) or an Event of Default (and following application as provided in
this
Section 2.16 may be otherwise applied in accordance with
Section 8.04) and
(y) the Person providing Cash
Collateral and the applicable L/C Issuer may agree that Cash Collateral shall not be released but instead held to support future anticipated Fronting Exposure or other obligations.
Section
2.17 Defaulting Lenders.
(a) Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting
Lender, then, until such time as that Lender is no longer a Defaulting Lender, to the extent permitted by applicable Law:
(i) That Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be
restricted as set forth in
Section 10.01.
(ii) Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of that Defaulting
Lender (whether voluntary or mandatory, at maturity, pursuant to
Article VIII or otherwise, and including any amounts made available to the Administrative Agent by that Defaulting Lender pursuant to
Section
10.09), 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 that Defaulting Lender to the Administrative Agent hereunder;
second,
to the payment on a pro rata basis of any amounts owing by that Defaulting Lender to the L/C Issuers hereunder;
third, if so reasonably determined by the Administrative Agent or reasonably requested by the applicable L/C Issuer, to be
held as Cash Collateral for future funding obligations of that Defaulting Lender of any participation in any Letter of Credit;
fourth, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of
any Loan in respect of which that Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent;
fifth, if so determined by the Administrative Agent and the Borrower,
to be held in a non-interest bearing deposit account and released in order to satisfy obligations of that Defaulting Lender to fund Loans under this Agreement;
sixth, to the payment of any amounts owing to the Lenders or any L/C
Issuer as a result of any non-appealable judgment of a court of competent jurisdiction obtained by any Lender or any L/C Issuer against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this
Agreement;
seventh, so long as no Default or Event of Default pursuant to
Sections 8.01(a),
(f) or
(g) exists, to the
payment of any amounts owing to the Borrower or any of its Subsidiaries as a result of any non-appealable judgment of a court of competent jurisdiction obtained by the Borrower or any of its Subsidiaries against that Defaulting Lender as a
result of that Defaulting Lender’s breach of its obligations under this Agreement; and
eighth, to that Defaulting Lender or as otherwise directed by a court of competent jurisdiction;
provided
that if
(x) such payment is a payment of the principal amount of any Loans or L/C Borrowings in respect of which that Defaulting Lender has not fully funded its appropriate share and
(y)
such Loans or L/C Borrowings were made at a time when the conditions set forth in
Section 4.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and L/C
Borrowings owed to, all
non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or L/C Borrowings owed to, that Defaulting Lender. Any payments,
prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this
Section 2.17(a)(ii) shall be deemed paid to and
redirected by that Defaulting Lender, and each Lender irrevocably consents hereto.
(iii) That Defaulting Lender
(x) shall not be entitled to receive any commitment fee pursuant to
Section
2.09(a) for any period during which that Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender) and
(y) shall be limited in its right to receive Letter of Credit fees as provided in
Section 2.03(h).
(iv) During any period in which there is a Defaulting Lender, for purposes of computing the amount of the obligation of each
non-Defaulting Lender to acquire, refinance or fund participations in Letters of Credit pursuant to
Section
2.03, the Pro Rata Share of each
non-Defaulting Lender under a Revolving Tranche shall be determined without giving effect to the Commitment under such Revolving Tranche
of that Defaulting Lender;
provided that the aggregate obligation of each
non-Defaulting Lender under a Revolving Tranche to acquire, refinance
or fund participations in Letters of Credit issued under such Revolving Tranche shall not exceed the positive difference, if any, of
(1) the Commitment under such Revolving Tranche of that
non‑Defaulting Lender,
minus (2) the aggregate Outstanding Amount of
the Loans under such Revolving Tranche of that Revolving Credit Lender. No reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a
Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation.
(b) If the Borrower, the Administrative Agent and each L/C Issuer agree in writing in their sole discretion that a
Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein
(which may include arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable, purchase that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may
reasonably determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit to be held on a pro rata basis by the Lenders in accordance with their ratable shares (without giving effect to the
application of
Section 2.17(a)(iv)) in respect of that Lender, whereupon that Lender will cease to be a Defaulting Lender;
provided that no adjustments will be made retroactively with respect
to fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender; and
provided,
further, that except to the extent
otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender having been a Defaulting Lender.
Section 2.18 Specified Refinancing Debt.
(a) The Borrower may, from time to time after the
Closing Date, add one or more new term loan facilities and new revolving credit facilities to the Facilities (“
Specified Refinancing Debt”; and the commitments in respect of such new term facilities,
the “
Specified Refinancing Term Commitment”; and such new term facilities, “
Specified Refinancing Term Facilities”; and the commitments in respect of such new
revolving credit facilities, the “
Specified Refinancing Revolving Credit Commitment”) pursuant to procedures reasonably specified by any Person appointed by the Borrower, as agent under such Specified
Refinancing Debt (such Person (who may be the Administrative Agent, if it so agrees), the “
Specified Refinancing Agent”) and reasonably acceptable to the Borrower, to refinance (including by extending
the maturity):
(x) all or any portion of any Term Loan Tranches then outstanding under this Agreement,
(y) all or any portion of any Revolving Tranches then in effect under this Agreement or
(z) all or any portion of any Revolving Credit Commitment Increase, Term Commitment Increase, New Term Facility or New Revolving Facility then in effect that was incurred under Section 2.14, in each case pursuant to a Refinancing Amendment;
provided that:
(i) such Specified Refinancing Debt shall comply with the Incremental Debt Lien/Guarantee Parameters;
(ii) such Specified Refinancing Debt shall have such pricing and optional prepayment and other terms as may be agreed by the Borrower and the applicable Lenders thereof;
(iii) such Specified Refinancing Debt
(x) to the extent constituting Specified Refinancing Revolving Credit Commitments, shall not have a maturity date (or
have mandatory commitment reductions or amortization) that is prior to the
scheduled Maturity Date of the applicable Revolving Tranche being refinanced and
(y) to the extent
constituting Specified Refinancing Term Loans, shall have a maturity date that is not prior to the date that is the Latest Maturity Date of, and will have a Weighted Average Life to Maturity that is not shorter than the remaining Weighted
Average Life to Maturity of, the Term Loans being refinanced;
provided that
(x) Extendable Bridge Loans/Interim Debt and
(y) an aggregate
principal amount of Specified Refinancing Term Loans not in excess of the maximum aggregate principal amount then permitted to be incurred in reliance on the Inside Maturity Basket, in each case, may have a maturity date that is earlier than
the Latest Maturity Date of the Term Loans being refinanced (or, in the case of Specified Refinancing Debt incurred in reliance on an Inside Maturity Basket, the
Facilities to which such Inside Maturity
Basket applies) and the Weighted Average Life to Maturity thereof may be shorter than the remaining Weighted Average Life to Maturity of the Term Loans being refinanced (or, in the case of Specified Refinancing Debt incurred in
reliance on an Inside Maturity Basket, the
Facilities to which such Inside Maturity Basket applies (it being agreed that no such final Stated Maturity or Weighted Average Life to Maturity of Specified
Refinancing Debt incurred pursuant to this clause (y) shall be less than the final Stated Maturity and remaining Weighted Average Life to Maturity of the Initial Term Loans));
(iv) such Specified Refinancing Debt, in the case of Specified Refinancing Term Loans, shall share ratably in any mandatory prepayments of the then outstanding Initial Term Loans pursuant to
Section 2.05 (or otherwise provide for more favorable prepayment treatment for the then outstanding Initial Term Loans than the Specified Refinancing Term Loans), other than mandatory
prepayments resulting from a refinancing of any Facility, which may be applied exclusively to the Facility being refinanced and other than any excess cash flow prepayments in respect of any Specified Refinancing Term Loans structured as term
“b” loans, as reasonably determined by the Borrower, which prepayments may be applied ratably across all Term Facilities;
(v) such Specified Refinancing Debt, in the case of Specified Refinancing Revolving Credit Commitments, shall provide that each Revolving Credit Borrowing (including any deemed Revolving
Credit Borrowings made pursuant to Section 2.03) and participations in Letters of Credit pursuant to Section 2.03 shall be allocated pro rata
among the Revolving Tranches; and
(vi) the Net Cash Proceeds of such Specified Refinancing Debt shall be applied, substantially concurrently with the incurrence thereof, to the pro rata prepayment of outstanding Loans or
Commitments being so refinanced (or less than the pro rata prepayment of outstanding Loans made by any Term Lenders or the Revolving Credit Lenders, as applicable, that will be lenders of the Specified Refinancing Debt, as approved by such
Term Lenders or the Revolving Credit Lenders, as applicable);
provided that in the case of Revolving Credit Loans, a corresponding amount of Revolving Credit Commitments shall be permanently reduced,
in each case pursuant to
Sections 2.05 and
2.06, as applicable, and the payment of fees, expenses and premiums, if any, payable in connection therewith;
provided, however, that such Specified Refinancing Debt shall not have a principal or commitment amount (or
accreted value) greater than the Loans or Commitments being refinanced (plus an amount equal to accrued interest, fees, discounts, premiums and expenses).
Any Lender approached to provide all or a portion of any Specified Refinancing Debt may elect or decline, in its sole discretion, to provide such Specified Refinancing Debt. To achieve the
full amount of a requested issuance of Specified Refinancing Debt, and subject to the approval of the Administrative Agent and each L/C Issuer in the case of Specified Refinancing Revolving Credit Commitments, the Borrower may also invite
additional Eligible Assignees to become Lenders in respect of such Specified Refinancing Debt pursuant to a joinder agreement to this Agreement in form and substance reasonably satisfactory to the Specified Refinancing Agent. For the
avoidance of doubt, any allocations of Specified Refinancing Debt shall be made at the Borrower’s sole discretion, and the Borrower will not be obligated to allocate any Specified Refinancing Debt to any Lender.
(b) The effectiveness of any Refinancing Amendment shall be subject to conditions as are mutually agreed with the
participating Lenders providing such Specified Refinancing Debt and to the extent reasonably requested by the Specified Refinancing Agent and expressly set forth in the documentation relating to such Specified Refinancing Debt, receipt by the
Specified Refinancing Agent of legal opinions, board resolutions, officers’ certificates and/or reaffirmation agreements with respect to the Borrower and the Guarantors, including any supplements or amendments to the Collateral Documents
providing for such Specified Refinancing Debt to be secured thereby, consistent with those delivered on the Closing Date under
Section 4.01 or delivered from time to time pursuant to
Sections 6.12,
6.14 and/or
Section 6.16 (other than changes to such legal opinions resulting from a change in Law, change in fact or change to
counsel’s form of opinion). The Lenders hereby authorize the Specified Refinancing Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrower as may be necessary in order to establish new Tranches of
Specified Refinancing Debt and to make such technical amendments as may be necessary or appropriate in the reasonable opinion of the Specified Refinancing Agent and the Borrower in connection with the establishment of such new Tranches, in
each case on terms consistent with and/or to effect the provisions of this
Section 2.18.
(c) Each class of Specified Refinancing Debt incurred under this
Section 2.18 shall be in
an aggregate principal amount that is
(x) not less than $5,000,000 (or the equivalent Dollar amount) and
(y) an integral multiple of $1,000,000 (or the equivalent Dollar amount) in
excess thereof. Any Refinancing Amendment may provide for the issuance of Letters of Credit for the account of the Borrower in respect of a Revolving Tranche pursuant to any revolving credit facility established thereby, in each case on
terms substantially equivalent to the terms applicable to Letters of Credit under the Revolving Credit Commitments.
(d) The Specified Refinancing Agent shall promptly notify each Lender as to the effectiveness of each Refinancing
Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Refinancing Amendment, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the
Specified Refinancing Debt incurred pursuant thereto (including the addition of such Specified Refinancing Debt as separate “Facilities” hereunder and treated in a manner consistent with the Facilities being refinanced, including for purposes
of prepayments and voting). Any Refinancing Amendment may, without the consent of any Person other than the Borrower, the Specified Refinancing Agent and the Lenders providing such Specified Refinancing Debt, effect such amendments to this
Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Specified Refinancing Agent and the Borrower, to effect the provisions of or consistent with this
Section
2.18. In addition, if so provided in the relevant Refinancing Amendment and with the consent of each L/C Issuer, participations in Letters of Credit expiring on or after the
scheduled Maturity
Date in respect of a Revolving Tranche shall be reallocated from Lenders holding Revolving Credit Commitments to Lenders holding extended revolving commitments in accordance with the terms of such Refinancing Amendment;
provided,
however, that such participation interests shall, upon receipt thereof by the relevant Lenders holding extended revolving commitments, be deemed to be
participation interests in respect of such extended revolving commitments and the terms of such participation interests (including the commission applicable thereto) shall be adjusted accordingly. If the Specified Refinancing Agent is not
the Administrative Agent, the actions authorized to be taken by the Specified Refinancing Agent herein shall be done in consultation with the Administrative Agent and, with respect to the preparation of any documentation necessary or
appropriate to carry out the provisions of this
Section 2.18 (including amendments to this Agreement and the other Loan Documents), any comments to such documentation reasonably requested by
the Administrative Agent shall be reflected therein.
Section 2.19 Extension of Term Loans and Revolving Credit Commitments.
(a) The Borrower may at any time and from time to time request that all or a portion of the
(i) Term Loans of one or more Tranches existing at the time of such request (each, an “
Existing Term Tranche”, and the Term Loans of such Tranche, the “
Existing Term Loans”) or (ii) Revolving Credit Commitments of one or more Tranches existing at the time of such request (each, an “
Existing Revolving Tranche” and
together with the Existing Term Tranches, each an “
Existing Tranche”, and the Revolving Credit Commitments of such Existing Revolving Tranche together with the Existing Term Loans, the “
Existing Loans”), in each case, be converted to extend the
scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of
any Existing Tranche (any such Existing Tranche which has been so extended, an “
Extended Term Tranche” or “
Extended Revolving Tranche”, as applicable, and each an
“
Extended Tranche”, and the Term Loans or Revolving Credit Commitments, as applicable, of such Extended Tranches, the “
Extended Term Loans” or “
Extended Revolving Commitments”, as applicable, and collectively, the “
Extended Loans”) and to provide for other terms consistent with this
Section 2.19;
provided that
(i) any such request shall be made by the Borrower to certain Lenders specified by the Borrower with Term
Loans or Revolving Credit Commitments, as applicable, with a like maturity date (whether under one or more Tranches) on a pro rata basis (based on the aggregate outstanding principal amount of the Term Loans or on the aggregate Revolving
Credit Commitments, as applicable) and (ii) any applicable Minimum Extension Condition shall be satisfied unless waived by the Borrower in its sole discretion. In order to establish any Extended Tranche, the Borrower shall provide a notice
to the Administrative Agent (in such capacity, the “
Extended Loans Agent”) (who shall provide a copy of such notice to each of the requested Lenders of the applicable Existing Tranche) (an “
Extension Request”) setting forth the proposed terms of the Extended Tranche to be established, which terms shall be substantially similar to those applicable to the Existing Tranche from which they are to
be extended (the “
Specified Existing Tranche”), except that
(w) all or any of the final maturity dates of such Extended Tranches shall be delayed to later dates than the
final maturity dates of the Specified Existing Tranche,
(x)
(A) the interest margins with respect to the Extended Tranche may be higher or lower than the interest margins for the
Specified Existing Tranche and/or
(B) additional fees may be payable to the Lenders providing such Extended Tranche in addition to or in lieu of any increased margins contemplated by the preceding
clause (A),
(y) in the case of any Extended Term Tranche, such Extended Term Tranche shall share ratably in any mandatory prepayments of the then outstanding Initial Term Loans pursuant to
Section
2.05 (or otherwise provide for more favorable mandatory prepayment treatment for the then outstanding Initial Term Loans than such Extended Term Tranche, other than mandatory prepayments resulting from a refinancing of any
Facility, which may be applied exclusively to the Facility being refinanced and other than any excess cash flow prepayments in respect of any Extended Term Tranche structured as term “b” loans, as reasonably determined by the Borrower, which
may be applied ratably across all Term Facilities), and
(z) in the case of any Extended Term Tranche (other than any Extended Term Tranche in an aggregate principal amount not in excess of the maximum aggregate
principal amount then permitted to be incurred in reliance on a then-applicable Inside Maturity Basket), so long as the Weighted Average Life to Maturity of such Extended Tranche would be no shorter than the remaining Weighted Average Life to
Maturity of the Specified Existing Tranche, amortization rates with respect to the Extended Term Tranche may be higher or lower than the amortization rates for the Specified Existing Tranche, in each case to the extent provided in the
applicable Extension Amendment;
provided that, notwithstanding anything to the contrary in this
Section 2.19 or otherwise, assignments and
participations of Extended Tranches shall be governed by the same or, at the Borrower’s discretion, more restrictive assignment and participation provisions applicable to Initial Term Loans or Revolving Credit Commitments, as applicable, set
forth in
Section 10.07; and provided, further, for the avoidance of doubt that any Extended Term Tranche may be structured as term “b” loans and may include Permitted TLB Terms. No requested
Lender shall have any obligation to agree to have any of its Existing Loans converted into an Extended Tranche pursuant to any Extension Request and the commitment of any L/C Issuer to issue or maintain Letters of Credit shall not be extended
pursuant to an extension of any Existing Revolving Tranche pursuant to this
Section 2.19 without its written consent. Any Extended Tranche shall constitute a separate Tranche of Loans from
the Specified Existing Tranches and from any other Existing Tranches (together with any other Extended Tranches so established on such date). On the Extension Date applicable to any applicable Revolving Tranche under the Revolving Credit
Facility, the Borrower shall prepay the Revolving Credit Loans or L/C Advances (to the extent participated to Revolving Credit Lenders) outstanding on such Extension Date applicable to the relevant Revolving Tranche (and pay any additional
amounts required pursuant to
Section 3.06) to the extent necessary to keep the outstanding Revolving Credit Loans or L/C Advances (to the extent participated to Revolving Credit Lenders), as
applicable, applicable to the non-extending Revolving Credit Lenders under such Revolving Tranche in accordance with any revised Pro Rata Share of a Revolving Credit Lender in respect of the extended Revolving Credit Facility arising from any
non-ratable Extension to the Revolving Credit Commitments under this
Section 2.19.
(b) The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as the Extended Loans
Agent may agree in its sole discretion) prior to the date on which Lenders under the applicable Existing Tranche or Existing Tranches are requested to respond. Any Lender (an “Extending Lender”)
wishing to have all or a portion of its Specified Existing Tranche converted into an Extended Tranche shall notify the Extended Loans Agent (each, an “Extension Election”) on or prior to the date
specified in such Extension Request of the amount of its Specified Existing Tranche that it has elected to convert into an Extended Tranche. In the event that the aggregate amount of the Specified Existing Tranche subject to Extension
Elections exceeds the amount of Extended Tranches requested pursuant to the Extension Request, the Specified Existing Tranches subject to Extension Elections shall be converted to Extended Tranches on a pro rata basis based on the amount of
Specified Existing Tranches included in each such Extension Election. In connection with any extension of Loans pursuant to this Section 2.19 (each, an “Extension”),
the Borrower and Extended Loans Agent shall agree to such procedures regarding timing, rounding, lender revocation and other administrative adjustments to ensure reasonable administrative management of the credit facilities hereunder after
such Extension, in each case acting reasonably to accomplish the purposes of this Section 2.19. The Borrower may amend, revoke or replace an Extension Request pursuant to procedures
reasonably acceptable to the Extended Loans Agent at any time prior to the date on which Lenders under the applicable Existing Term Tranche or Existing Term Tranches are requested to respond to the Extension Request.
(c) Extended Tranches shall be established pursuant to an amendment (an “
Extension
Amendment”) to this Agreement (which may include amendments to provisions related to maturity, interest margins or fees referenced in
clauses (x) and
(y) of
Section 2.19(a), or,
in the case of Extended Term Tranches, amortization rates referenced in
clause (z) of
Section 2.19(a), and which, in each case, except to the extent expressly contemplated by the last sentence of this
Section 2.19(c)
and notwithstanding anything to the contrary set forth in
Section 10.01, shall not require the consent of any Lender other than the Extending Lenders with respect to the Extended Tranches
established thereby) executed by the Loan Parties, the Extended Loans Agent, and the Extending Lenders. Subject to the requirements of this
Section 2.19 and without limiting the generality or
applicability of
Section 10.01 to any
Section 2.19 Additional Amendments (as defined below), any Extension Amendment may provide for additional terms and/or additional amendments other than those referred to or contemplated above (any such
additional amendment, a “
Section 2.19 Additional Amendment”) to this Agreement and the other Loan Documents;
provided that such
Section 2.19 Additional Amendments do not become effective prior to the time that such
Section 2.19 Additional Amendments have been consented to (including, without limitation, pursuant to consents applicable to holders of any Extended
Tranches provided for in any Extension Amendment) by such of the Lenders, Loan Parties and other parties (if any) as may be required in order for such
Section 2.19 Additional Amendments to become effective in accordance with
Section 10.01;
provided,
further, that such Extended Tranche
shall comply with the Incremental Debt Lien/Guarantee Parameters.
Notwithstanding anything to the contrary in
Section 10.01, any such Extension Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be
necessary or appropriate, in the reasonable judgment of the Borrower and the Extended Loans Agent, to effect the provisions of this
Section 2.19;
provided
that the foregoing shall not constitute a consent on behalf of any Lender to the terms of any
Section 2.19 Additional Amendment. The Lenders hereby authorize the Extended Loans Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrower as may be necessary in
order to establish any Extended Loans and to make such technical amendments as may be necessary or appropriate in the reasonable opinion of the Extended Loans Agent and the Borrower in connection with the establishment of such Extended Loans,
in each case on terms consistent with and/or to effect the provisions of this
Section 2.19.
(d) Notwithstanding anything to the contrary contained in this Agreement, on any date on which any Existing Tranche
is converted to extend the related
scheduled maturity date(s) in accordance with
clause (a) above (an “
Extension Date”), in the case of the Specified Existing
Tranche of each Extending Lender, the aggregate principal amount of such Specified Existing Tranche shall be deemed reduced by an amount equal to the aggregate principal amount of Extended Tranche so converted by such Lender on such date, and
such Extended Tranches shall be established as a separate Tranche from the Specified Existing Tranche and from any other Existing Tranches (together with any other Extended Tranches so established on such date).
(e) If, in connection with any proposed Extension Amendment, any requested Lender declines to consent to the applicable extension on the terms
and by the deadline set forth in the applicable Extension Request (each such other Lender, a “
Non-Extending Lender”) then the Borrower may, on notice to the Extended Loans Agent and the Non-Extending
Lender, replace such Non-Extending Lender by causing such Lender to (and such Lender shall be obligated to) assign pursuant to
Section 10.07 (with the assignment fee and any other costs and
expenses to be paid by the Borrower in such instance) all of its rights and obligations under this Agreement to one or more assignees;
provided that neither the Extended Loans Agent nor any Lender
shall have any obligation to the Borrower to find a replacement Lender;
provided,
further, that the applicable assignee shall have agreed to provide Extended
Loans on the terms set forth in such Extension Amendment;
provided,
further, that all obligations of the Borrower owing to the Non-Extending Lender relating
to the Existing Loans so assigned shall be paid in full by the assignee Lender to such Non-Extending Lender concurrently with such Assignment and Assumption. In connection with any such replacement under this
Section 2.19, if the Non-Extending Lender does not execute and deliver to the Extended Loans Agent a duly completed Assignment and Assumption by the later of
(A) the date on which the
replacement Lender executes and delivers such Assignment and Assumption and
(B) the date as of which all obligations of the Borrower owing to the Non-Extending Lender relating to the Existing Loans so assigned
shall be paid in full by the assignee Lender to such Non-Extending Lender, then such Non-Extending Lender shall be deemed to have executed and delivered such Assignment and Assumption as of such date and the Borrower shall be entitled (but
not obligated) to execute and deliver such Assignment and Assumption on behalf of such Non‑Extending Lender.
(f) Following any Extension Date, with the written consent of the Borrower, any Non-Extending Lender may elect
to have all or a portion of its Existing Loans deemed to be an Extended Loan under the applicable Extended Tranche on any date (each date a “
Designation Date”) prior to the maturity date of such
Extended Tranche;
provided that such Lender shall have provided written notice to the Borrower and the Extended Loans Agent at least ten (10) Business Days prior to such Designation Date (or such
shorter period as the Administrative Agent may agree in its reasonable discretion);
provided,
further, that no greater amount shall be paid by or on behalf of
the Borrower or any of its Affiliates to any such Non-Extending Lender as consideration for its extension into such Extended Tranche than was paid to any Extending Lender as consideration for its Extension into such Extended Tranche.
Following a Designation Date, the Existing Loans held by such Lender so elected to be extended will be deemed to be Extended Loans of the applicable Extended Tranche, and any Existing Loans held by such Lender not elected to be extended, if
any, shall continue to be “Existing Loans” of the applicable Tranche.
(g) With respect to all Extensions consummated by the Borrower pursuant to this
Section 2.19,
(i) such Extensions shall not constitute optional or mandatory payments or prepayments for purposes of
Sections 2.05(a) and
(b) and (ii) no Extension Request is required to be in any minimum amount or any minimum increment;
provided that the Borrower may at its election specify as a
condition (a “
Minimum Extension Condition”) to consummating any such Extension that a minimum amount (to be determined and specified in the relevant Extension Request in Borrower’s sole discretion and
may be waived by the Borrower) of Existing Loans of any or all applicable Tranches be extended. The Administrative Agent and the Lenders hereby consent to the transactions contemplated by this
Section
2.19 (including, for the avoidance of doubt, payment of any interest, fees or premium in respect of any Extended Loans on such terms as may be set forth in the relevant Extension Request) and hereby waive the requirements of
any provision of this Agreement (including, without limitation,
Sections 2.05(a) and
(b) and
2.07) or any other Loan Document that may otherwise prohibit any
such Extension or any other transaction contemplated by this
Section 2.19.
Section 2.20 Permitted Debt Exchanges.
(a) Notwithstanding anything to the contrary contained in this Agreement, pursuant to one or more offers (each, a
“
Permitted Debt Exchange Offer”) made from time to time by the Borrower, the Borrower may from time to time following the Closing Date consummate one or more exchanges of Term Loans for Permitted Debt
Exchange Notes (each such exchange a “
Permitted Debt Exchange”) with any Lender (other than any Lender that, if requested by the Borrower, is unable to certify that it is either a “qualified
institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (as defined in Rule
501 under the Securities Act)), so long as the following conditions are
satisfied:
(i) no Event of Default shall have occurred and be continuing at the time the final offering document in respect of a Permitted Debt Exchange Offer is delivered to the relevant Lenders, (ii) the
aggregate principal amount (calculated on the face amount thereof) of Term Loans exchanged shall equal no more than the aggregate principal amount (calculated on the face amount thereof) of Permitted Debt Exchange Notes issued in exchange for
such Term Loans;
provided that the aggregate principal amount of the Permitted Debt Exchange Notes may include accrued interest and premium (if any) under the Term Loans exchanged and underwriting
discounts, fees, commissions and other amounts referred to in
clause (3) of the definition of “Refinancing Indebtedness” in connection with the issuance of such Permitted Debt Exchange Notes,
(iii) the aggregate principal amount (calculated on the face amount thereof) of all Term Loans exchanged by the Borrower pursuant to any Permitted Debt Exchange shall automatically be cancelled and retired by the Borrower on the date of the
settlement thereof (and, if requested by the Administrative Agent, any applicable exchanging Lender shall execute and deliver to the Administrative Agent an Assignment and Assumption, or such other form as may be reasonably requested by the
Administrative Agent, in respect thereof pursuant to which the respective Lender assigns its interest in the Term Loans being exchanged pursuant to the Permitted Debt Exchange to the Borrower for immediate cancellation), (iv) if the aggregate
principal amount of all Term Loans (calculated on the face amount thereof) tendered by Lenders in respect of the relevant Permitted Debt Exchange Offer (with no Lender being permitted to tender a principal amount of Term Loans which exceeds
the principal amount thereof actually held by it) shall exceed the maximum aggregate principal amount of such Term Loans offered to be exchanged by the Borrower pursuant to such Permitted Debt Exchange Offer, then the Borrower shall exchange
Term Loans subject to such Permitted Debt Exchange Offer tendered by such Lenders ratably up to such maximum amount based on the respective principal amounts so tendered,
(v) all documentation in respect of such
Permitted Debt Exchange shall be consistent with the foregoing, and all written communications generally directed to the Lenders in connection therewith shall be in form and substance consistent with the foregoing and made in consultation
with the Borrower and the Exchange Agent and (vi) any applicable Minimum Tender Condition (as defined below) shall be satisfied.
(b) With respect to all Permitted Debt Exchanges effected by the Borrower pursuant to this
Section 2.20,
(i) such Permitted Debt Exchanges (and the cancellation of the exchanged Term Loans in connection therewith) shall not constitute voluntary or mandatory payments or
prepayments for purposes of
Sections 2.05(a) or
(b), and (ii) such Permitted Debt Exchange Offer shall be made for not less than $5,000,000 in aggregate principal
amount of Term Loans;
provided that subject to the foregoing
clause (ii) the Borrower may at its election specify as a condition (a “
Minimum Tender Condition”)
to consummating any such Permitted Debt Exchange that a minimum amount (to be determined and specified in the relevant Permitted Debt Exchange Offer in Borrower’s discretion) of Term Loans of any or all applicable classes be tendered.
(c) In connection with each Permitted Debt Exchange, the Borrower and the Exchange Agent shall mutually agree to
such procedures as may be necessary or advisable to accomplish the purposes of this
Section 2.20 and without conflict with
Section 2.20(d);
provided
that the terms of any Permitted Debt Exchange Offer shall provide that the date by which the relevant Lenders are required to indicate their election to participate in such Permitted Debt Exchange shall be not less than a reasonable period
(in the discretion of the Borrower and the Exchange Agent) of time following the date on which the Permitted Debt Exchange Offer is made.
(d) The Borrower shall be responsible for compliance with, and hereby agrees to comply with, all applicable securities and other laws and
regulations in connection with each Permitted Debt Exchange, it being understood and agreed that
(x) none of the Exchange Agent, the Administrative Agent nor any Lender assumes any responsibility in connection
with Borrower’s compliance with such laws and regulations in connection with any Permitted Debt Exchange (other than the Borrower’s reliance on any certificate delivered pursuant to
Section 2.20(a) above for which such Lender shall
bear sole responsibility) and
(y) each Lender shall be solely responsible for its compliance with any applicable “insider trading” laws and regulations to which such Lender may be subject under the Exchange Act,
and/or other applicable securities laws and regulations.
(e) If the Exchange Agent is not the Administrative Agent, the actions authorized to be taken by the Exchange
Agent herein shall be done in consultation with the Administrative Agent and, with respect to the preparation of any documentation necessary or appropriate to carry out the provisions of this
Section
2.20, any comments to such documentation reasonably requested by the Administrative Agent shall be reflected therein.
TAXES, INCREASED COSTS PROTECTION AND ILLEGALITY
(a) All payments by or on account of any obligation of the Borrower or any other Loan Party hereunder or under
any other 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 or in respect of any such payment, 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, the sum payable by the applicable Loan Party shall be increased as necessary so that after all such deductions or withholdings for
Indemnified Taxes have been made (including such deductions and withholdings for Indemnified Taxes applicable to additional sums payable under this
Section 3.01) the Administrative Agent (for
amounts paid to the Administrative Agent in its own right) or Lender receives an amount equal to the sum it would have received had no such deduction or withholding for Indemnified Taxes been made.
(b) In addition but without duplication, the Loan Parties 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.
(c) Without duplication of amounts paid pursuant to
Section 3.01(a) or
Section
3.01(b), the Loan Parties shall jointly and severally indemnify each Recipient, within 30 days after receipt by the applicable Loan Party of written 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 3.01) payable or paid by such Recipient or required to be withheld or deducted from a payment to or for the
account of such Recipient and any reasonable out-of-pocket expenses arising therefrom or with respect thereto (other than any interest or penalties resulting from the gross negligence, bad faith or willful misconduct of such Recipient),
whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate setting forth in reasonable detail the calculation of the amount of such payment or liability delivered
to the Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.
(d) [Reserved].
(e) As soon as reasonably practicable after any payment of Taxes by any Loan Party to a Governmental Authority
pursuant to this
Section 3.01, such Loan Party shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such
payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.
(f) If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any
Indemnified Taxes as to which it has been indemnified pursuant to this
Section 3.01 (including by the payment of additional amounts pursuant to this
Section
3.01), 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 3.01 with respect to the
Indemnified Taxes giving rise to such refund), net of all reasonable 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 (which request shall include a copy of any notice of assessment or other evidence of any requirement to repay such refund;
provided
that, such indemnified party may redact any information therein that such indemnified party deems confidential), shall promptly repay to such indemnified party the amount paid over pursuant to this
Section 3.01(f) (
plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority.
Notwithstanding anything to the contrary in this
Section 3.01(f), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this
Section 3.01(f) 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
Section 3.01(f) 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.
(h) (i) Any Lender that is entitled to an exemption from or reduction of
withholding Tax with respect to any payments made under any Loan Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly
completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably
requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable Law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative
Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such
documentation (other than such documentation set forth in
clauses (h)(ii)(A),
(ii)(B) and
(ii)(D) of this
Section 3.01(h)) 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 (or is disregarded as an entity separate from its owner for U.S. federal income tax purposes if
such Lender’s regarded owner for U.S. federal income tax purposes (the “
Lender’s Regarded Owner”) is a U.S. person) shall deliver to the Borrower and the Administrative Agent (in such number as shall be
requested by the recipient) on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent) a properly completed and
duly executed
IRS Form W-9 (or any successor form) certifying that such Lender (or, if such Lender is disregarded as an entity separate from its owner for U.S. federal income tax purposes, the Lender’s
Regarded Owner) is exempt from U.S. federal backup withholding Tax;
(B) any Non-U.S. Lender shall, to the extent it is legally eligible to do so, deliver to the Borrower and the Administrative Agent (in
such number as shall be requested by the recipient) on or prior to the date on which such Non-U.S. Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the
Administrative Agent), whichever of the following is applicable:
(1) in the case of a Non-U.S. 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, a properly completed and duly executed IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable (or any applicable
successor form), 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, a properly completed and duly executed
IRS Form W-8BEN or
IRS Form W-8BEN-E, as applicable (or any applicable successor form), claiming an
exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(2) in the case of a Non-U.S. Lender claiming that its extension of credit will generate U.S.
effectively connected income, a properly completed and duly executed
IRS Form W-8ECI (or any successor form);
(3) in the case of a Non-U.S. Lender (or, if a Non-U.S. Lender is disregarded as an entity
separate from its owner for U.S. federal income tax purposes, the Lender’s Regarded Owner) claiming the benefits of the exemption for portfolio interest under
Section 871(h) or
Section
881(c) of the Code,
(x) a certificate substantially in the form of
Exhibit H-1 to the effect that such Non-U.S. Lender (or the Lender’s Regarded Owner, as applicable) is not a “bank” within the meaning
of Section 881(c)(3)(A) of the Code, a “10-percent shareholder” of the Borrower within the meaning of Section 871(h)(3)(B) of the Code or a “controlled foreign corporation” that is related to the Borrower described in Section 881(c)(3)(C) of
the Code, and that no payments under any Loan Document are effectively connected with such Lender’s (or the Lender’s Regarded Owner’s, as applicable) conduct of a U.S. trade or business (a “
U.S. Tax Compliance
Certificate”) and
(y) a properly completed and duly executed
IRS Form W-8BEN or
IRS Form W-8BEN-E, as applicable (or any
applicable successor form); or
(4) to the extent a Non-U.S. Lender (or, if a Non-U.S. Lender is disregarded as an entity separate from its owner for
U.S. federal income tax purposes, the Lender’s Regarded Owner) is not the beneficial owner (
e.g., where the Non-U.S. Lender (or the Lender’s Regarded Owner, as applicable) is a partnership or a
participating Lender), a properly completed and duly executed
IRS Form W-8IMY (or any successor form), accompanied by a properly completed and duly executed
IRS
Form W-8ECI,
IRS Form W-8BEN or
IRS Form W‑8BEN-E, as applicable (or any applicable successor form), a certificate substantially in the form of
Exhibit H-2
or
Exhibit H-3,
IRS Form W‑9 (or any successor form), and/or other certification documents from each beneficial owner, as applicable;
provided that if
the Non-U.S. Lender (or the Lender’s Regarded Owner, as applicable) is a partnership (and not a participating Lender) and one or more direct or indirect partners of such Non-U.S. Lender (or Lender’s Regarded Owner, as applicable) are claiming
the portfolio interest exemption, such Non-U.S. Lender shall provide a certificate substantially in the form of
Exhibit H-4 on behalf of such direct and indirect partner(s);
(C) any Non-U.S. Lender shall, to the extent it is legally eligible to do so, deliver to the Borrower or the Administrative Agent (in
such number as shall be requested by the recipient) on or prior to the date on which such Non-U.S. Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the
Administrative Agent), any properly completed and duly executed other form prescribed by applicable Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary
documentation as may be prescribed by applicable Law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made;
(D) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such
Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at
the time or times prescribed by Law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code)
and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to
(i) comply with their obligations under
FATCA and (ii) determine whether such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. For purposes of this
Section
3.01(h)(ii)(D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement; and
(E)
the Administrative Agent, and any successor or supplemental
Administrative Agent, shall deliver to the Borrower (in such number as shall be requested by the recipient) on or prior to the date on which the Administrative Agent becomes the administrative agent hereunder or under any other Loan
Document (and from time to time thereafter upon the reasonable request of the Borrower) either a properly completed and duly executed (i) if it is a U.S. Person (or a
disregarded entity of a U.S. Person for U.S. federal income tax purposes), a properly completed and duly executed IRS Form W-9 (or any successor form) or
(ii) if it is not a U.S. Person (or a disregarded entity of a U.S. Person for U.S. federal income tax purposes), a properly completed and duly executed IRS
Form W-8IMY (or any successor form), together with the required accompanying documentation, evidencing its agreement with the Borrower to assume primary withholding responsibility under Chapters 3 and 4 of the Code (with respect to amounts received under the Loan Documents on account of any Lender) and a properly completed and duly
executed IRS Form W-8ECI (with respect to amounts received under the Loan Documents on its own account), with the effect that, in either case, the Borrower
will be entitled to make payments hereunder to the Administrative Agent without withholding or deduction on account of U.S. federal withholding Tax. Notwithstanding any provision of this
Section 3.01(h), the Administrative
Agent shall not be required to deliver any form or other documentation that the Administrative Agent is not legally eligible to deliver as a result of a change in Law after the date of this Agreement.
Each Recipient agrees that if any documentation it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall promptly update and deliver such documentation to
the Borrower and the Administrative Agent or promptly notify the Borrower and the Administrative Agent in writing of its legal ineligibility to do so. Notwithstanding any other provision of this Section 3.01(h), no Lender shall be
required to provide any documentation that such Lender is not legally eligible to provide.
Each Lender hereby authorizes the Administrative Agent to deliver to the Loan Parties and to any successor Administrative Agent any documentation provided by such Lender to the Administrative
Agent pursuant to this Section 3.01(h).
(i) The agreements in this
Section 3.01 shall survive the
resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all other Obligations.
(j) For the avoidance of doubt, for purposes of this
Section 3.01,
the term “
Lender” shall include any L/C Issuer, and the term “applicable Law” includes FATCA.
Section 3.03 Illegality. If any Lender reasonably determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is
unlawful, for any Lender or its applicable Lending Office to make, maintain or fund Loans whose interest is determined by reference to the Term SOFR Reference Rate or to determine or charge interest rates based upon Term SOFR or any
Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the applicable interbank market, then, on notice thereof by such Lender to the Borrower through
the Administrative Agent,
(a) any obligation of such Lender to make or continue SOFR Loans or to convert ABR Loans to SOFR Loans shall be suspended and
(b) if such notice asserts
the illegality of such Lender making or maintaining ABR Loans, the interest rate on which is determined by reference to the Term SOFR component of the ABR, the interest rate on which ABR Loans of such Lender, shall, if necessary to avoid such
illegality, be determined by the Administrative Agent without reference to the Term SOFR component of the ABR, in each case until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such
determination no longer exist. Upon receipt of such notice, the Borrower shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or convert all of such Lender’s SOFR Loans to ABR Loans (the interest rate on which
ABR Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Term SOFR component of the ABR). Upon any such prepayment or conversion, the Borrower shall also pay
accrued interest on the amount so prepaid or converted and all amounts due, if any, in connection with such prepayment or conversion under
Section 3.06. Each Lender agrees to designate a
different Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender.
Section 3.04 Alternate Rate of Interest.
(a) Subject to clauses (b), (c),
(d), (e) and (f) of this Section 3.04, if:
(i)
the Administrative Agent determines (which determination shall be conclusive absent manifest error) (A) prior
to the commencement of any Interest Period for a SOFR Borrowing, that adequate and reasonable means do not exist for
ascertaining Term SOFR (including because the Term SOFR Reference Rate is not available or published on a current basis) for such Interest Period or (B) at any time,
that adequate and reasonable means do not exist for ascertaining the applicable Daily Simple SOFR; or
(ii)
the Administrative Agent is advised by the Required Lenders that (A) prior to the commencement of any Interest Period for a SOFR Borrowing, Term SOFR for such Interest Period will not adequately and fairly reflect the cost to such Lenders of
making or maintaining their Loans included
in such Borrowing for such Interest Period or (B) at any time, Daily Simple SOFR
will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing;
then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by telephone, telecopy or electronic mail as promptly as practicable thereafter and, if such notice is
given, the Borrower may revoke any Committed Loan Notice for the affected Borrowing and, failing that, until
(x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise
to such notice no longer exist with respect to the relevant Benchmark and
(y) the Borrower delivers a new Committed Loan Notice in accordance with the terms of
Section 2.02,
any Committed Loan Notice that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a SOFR Borrowing and any Committed Loan Notice that requests a SOFR Borrowing, shall instead be deemed to be a Committed Loan
Notice for
(x) an RFR Borrowing so long as Daily Simple SOFR is not also the subject of
Section 3.04(a)(i) or
(ii) above or
(y) an ABR
Borrowing if Daily Simple SOFR also is the subject of
Section 3.04(a)(i) or
(ii) above, and any Committed Loan Notice that requests the conversion of any Borrowing to, or continuation of any Borrowing as, an RFR Borrowing, and
any Committed Loan Notice the requests an RFR Borrowing shall instead be deemed to be a Committed Loan Notice for an ABR Borrowing if Daily Simple SOFR is the subject of
Section 3.04(a)(i) or
(ii)
above;
provided that if the circumstances giving rise to such notice affect only one Type of Borrowings, then all other Types of Borrowings shall be permitted. Furthermore, if any SOFR Loan or RFR
Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this
Section 3.04(a) with respect to a Relevant Rate applicable to such SOFR Loan or RFR
Loan, then until
(x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist with respect to the relevant Benchmark and
(y) the Borrower delivers a new Committed Loan Notice in accordance with the terms of
Section 2.02,
(1) any SOFR Loan shall on the
last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute,
(x) an RFR Borrowing so long as Daily Simple SOFR is not also the subject of
Section
3.04(a)(i) or
(ii) above or
(y) an ABR Loan if Daily Simple SOFR also is the subject of
Section 3.04(a)(i) or
(ii) above, on such day and (2) any RFR Loan shall on and from such day
be converted by the Administrative Agent to, and shall constitute an ABR Loan.
(b) Notwithstanding anything to the contrary herein or in any other Loan
Document, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then (x) if a Benchmark
Replacement is determined in accordance with clause (1) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark
for all purposes hereunder and under any other Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other
Loan Document and (y) if a Benchmark Replacement is determined in accordance with clause (2) of the definition of “Benchmark Replacement” for such Benchmark
Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any other Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business
Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent
has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders.
(c) Notwithstanding anything to the contrary herein or in any other Loan Document, the Administrative Agent
will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming
Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(d) The Administrative Agent will promptly notify the Borrower and the
Lenders of (i) any occurrence of a Benchmark Transition Event, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes, (iv) the removal or
reinstatement of any tenor of a Benchmark pursuant to clause (f) below and (v) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may
be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 3.04, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of
an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any
other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 3.04.
(e) Notwithstanding anything to the contrary herein or in any other Loan
Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is or will be no longer
representative, then the Administrative Agent may modify the definition of “Interest Period” for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed
pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or
is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period” for all Benchmark
settings at or after such time to reinstate such previously removed tenor.
(f) Upon the Borrower’s receipt of notice of the commencement of a Benchmark
Unavailability Period, the Borrower may revoke any request for a SOFR Borrowing or RFR Borrowing of, conversion to or continuation of SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing
that, the Borrower will be deemed to have converted any request for a SOFR Borrowing into a request for a Borrowing of or conversion to (A) an RFR Borrowing so long as Daily Simple SOFR is not the subject of a
Benchmark Transition Event or (B) an ABR Borrowing if Daily Simple SOFR is the subject of a Benchmark Transition Event. During any Benchmark Unavailability Period or at any time that a tenor for the
then-current Benchmark is not an Available Tenor, the component of ABR based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of ABR. Furthermore, if any SOFR Loan or
RFR Loan is outstanding on the date of the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to a Relevant Rate applicable to such SOFR Loan or RFR Loan, then until such time as a Benchmark
Replacement is implemented pursuant to this Section 3.04, (1) any SOFR Loan shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall
constitute, (x) an RFR Borrowing so long as Daily Simple SOFR is not the subject of a Benchmark Transition Event or (y) an ABR Loan if Daily Simple SOFR is the subject of a
Benchmark Transition Event, on such day and (2) any RFR Loan shall on and from such day be converted by the Administrative Agent to, and shall constitute an ABR Loan.
Section 3.05 Increased Cost and Reduced Return; Capital Adequacy and Liquidity Requirements.
(a) If any Lender reasonably determines that as a result of the introduction
of or any change in or in the interpretation of any Law, in each case after the date hereof, or such Lender’s compliance therewith, there shall be any material increase in the cost to such Lender of agreeing to make or making, funding or
maintaining any Loan or (as applicable) issuing or participating in Letters of Credit, or a material reduction in the amount received or receivable by such Lender in connection with any of the foregoing (including Taxes on or in respect of
its loans, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, but excluding for purposes of this Section 3.05(a) any such increased costs or reduction
in amount resulting from (i) Indemnified Taxes, (ii) Taxes described in
clauses (b) through
(d) of the definition
of Excluded Taxes
and (iii) Connection Income Taxes), then within 15 days after demand of such Lender setting forth in reasonable detail such increased costs (with a copy of such demand to the
Administrative Agent given in accordance with Section 3.06), the Borrower shall pay to such Lender such additional amounts as will compensate such Lender for such increased cost or reduction.
(b) If any Lender reasonably determines that the introduction of any Law regarding capital adequacy and
liquidity requirements or any change therein or in the interpretation thereof, in each case after the date hereof, or compliance by such Lender (or its Lending Office) therewith, has the effect of materially reducing the rate of return on the
capital of such Lender or any corporation controlling such Lender as a consequence of such Lender’s obligations hereunder (taking into consideration its policies with respect to capital adequacy and liquidity and such Lender’s desired return
on capital), then within 15 days after demand of such Lender setting forth in reasonable detail the charge and the calculation of such reduced rate of return (with a copy of such demand to the Administrative Agent given in accordance with
Section 3.06), the Borrower shall pay to such Lender such additional amounts as will compensate such Lender for such reduction.
(c) The Borrower shall pay to each Lender,
(i) as long as such Lender shall be
required to maintain reserves or liquidity with respect to liabilities or assets consisting of or including SOFR funds or deposits, additional interest on the unpaid principal amount of each SOFR Loan equal to the actual costs of such
reserves or liquidity allocated to such Loan by such Lender (as determined by such Lender in good faith, which determination shall be conclusive in the absence of manifest error), and (ii) as long as such Lender shall be required to comply
with any liquidity requirement, reserve ratio requirement or analogous requirement of any other central banking or financial regulatory authority imposed in respect of the maintenance of the Commitments or the funding of the SOFR Loans, such
additional costs (expressed as a percentage per annum and rounded upwards, if necessary, to the nearest five decimal places) equal to the actual costs allocated to such Commitment or Loan by such Lender (as determined by such Lender in good
faith, which determination shall be conclusive absent manifest error) which in each case shall be due and payable on each date on which interest is payable on such Loan;
provided that the Borrower
shall have received at least 15 days’ prior written notice (with a copy to the Administrative Agent) of such additional interest or cost from such Lender. If a Lender fails to give written notice 15 days prior to the relevant Interest Payment
Date, such additional interest or cost shall be due and payable 15 days from receipt of such written notice.
(d) For purposes of this
Section 3.05,
(i) the Dodd-Frank
Wall Street Reform and Consumer Protection Act and all requests, rules, regulations, guidelines or directives thereunder or issued in connection therewith and (ii) all requests, rules, guidelines, requirements and 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 (other than foreign regulatory authorities in Switzerland), in each case pursuant to
Basel III, shall, in each case, be deemed to have gone into effect
after the date hereof and on the date enacted, adopted or issued.
Section 3.06 Funding Losses. Upon written demand of any Lender (with a
copy to the Administrative Agent) from time to time, setting forth in reasonable detail the basis for calculating such compensation, the Borrower shall promptly compensate such Lender for and hold such Lender harmless from any actual loss,
cost or expense incurred by it as a result of:
(a) any continuation (if applicable), conversion, payment or prepayment of any SOFR Loans on a day other than
the last day of the Interest Period for such Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise);
(b) any failure by the Borrower (for a reason other than the failure of such Lender
to make a Loan or pursuant to a conditional notice that has been revoked in accordance with the terms of this Agreement) to prepay, borrow, continue or convert any SOFR Loan on the date or in the amount notified by the Borrower; or
(c) any mandatory assignment of such Lender’s SOFR Loans pursuant to
Section
3.08 on a day other than the last day of the Interest Period for such Loans (including any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan or from fees payable to
terminate the deposits from which such funds were obtained but excluding anticipated profits). The Borrower shall also pay any customary administrative fees charged by such Lender in connection with the foregoing.
Section 3.07 Matters Applicable to All Requests for Compensation.
A
certificate of any Agent or any Lender claiming compensation under this
Article III and setting forth in reasonable detail a calculation of the additional amount or amounts to be paid to it
hereunder shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods. With respect to any Recipient’s claim for compensation under
Section 3.03,
3.04 or
3.05, the Loan Parties shall not be required to compensate such Recipient for any amount incurred more than 180 days prior to the date that such Recipient
notifies the Borrower of the event that gives rise to such claim;
provided that, if the circumstance giving rise to such claim is retroactive, then such
180-day period
referred to above shall be extended to include the period of retroactive effect thereof.
(b) If any Lender requests compensation under
Section 3.05, or
the Borrower is required to pay any additional amount to any Lender, any L/C Issuer, or any Governmental Authority for the account of any Lender or any L/C Issuer pursuant to
Section 3.01, or
if any Lender gives a notice pursuant to
Section 3.03, then such Lender or the L/C Issuer, as applicable, will, if requested by the Borrower and at the Borrower’s expense, use commercially
reasonable efforts to designate another Lending Office for any Loan or Letter of Credit affected by such event;
provided that such efforts
(i) would eliminate or reduce
amounts payable pursuant to
Sections 3.01 or
3.05, as applicable, in the future and (ii) would not, in the reasonable judgment of such Lender or such L/C Issuer, as applicable, be disadvantageous
in any material legal, economic or regulatory respect to such Lender or its Lending Office or such L/C Issuer. The provisions of this
clause (b) shall not affect or postpone any Obligations of the Borrower or rights of such Lender
pursuant to
Sections 3.01 and
3.05.
(c) If any Lender requests compensation by the Borrower under Section 3.05, the Borrower
may, by notice to such Lender (with a copy to the Administrative Agent), suspend the obligation of such Lender to make or continue from one Interest Period to another SOFR Loans, or to convert ABR Loans into SOFR Loans, until the event or
condition giving rise to such request ceases to be in effect (in which case the provisions of Section 3.07(e) shall be applicable); provided that such suspension shall not affect the right of
such Lender to receive the compensation so requested.
(d) If the obligation of any Lender to make or continue from one Interest Period to another any SOFR Loans, or
to convert ABR Loans into SOFR Loans shall be suspended pursuant to
Section 3.07(c) hereof, such Lender’s SOFR Loans, shall be automatically converted into ABR Loans on the last day(s) of the then current Interest Period(s) for such
SOFR Loans (or, in the case of an immediate conversion required by
Section 3.03, on such earlier date as required by Law) and, unless and until such Lender gives notice as provided below that
the circumstances specified in
Sections 3.03,
3.04 or
3.05 hereof that gave rise to such conversion no longer exist:
(i) to the extent that such Lender’s SOFR Loans have been so converted, all payments and prepayments of principal that would otherwise
be applied to such Lender’s SOFR Loans shall be applied instead to its ABR Loans; and
(ii) all Loans that would otherwise be made or continued from one Interest Period to another by such Lender as SOFR Loans shall be made
or continued instead as ABR Loans, and all ABR Loans of such Lender that would otherwise be converted into SOFR Loans shall remain as ABR Loans.
(e) If any Lender gives notice to the Borrower (with a copy to the Administrative Agent) that the circumstances
specified in
Sections 3.03,
3.04 or
3.05 hereof that gave rise to the conversion of such Lender’s SOFR Loans pursuant to this
Section 3.07 no longer exist (which such
Lender agrees to do promptly upon such circumstances ceasing to exist) at a time when SOFR Loans, made by other Lenders are outstanding, such Lender’s ABR Loans shall be automatically converted, on the first day(s) of the next succeeding
Interest Period(s) for such outstanding SOFR Loans to the extent necessary so that, after giving effect thereto, all Loans held by the Lenders holding SOFR Loans, as applicable, and by such Lender are held pro rata (as to principal amounts,
interest rate basis, and Interest Periods) in accordance with their respective Commitments.
(f) A Lender shall not be entitled to any compensation pursuant to Sections
3.03,
3.04 or
3.05 to the extent such Lender does not upon request certify that it is imposing such charges or requesting such compensation from borrowers (similarly situated to the
Borrower hereunder) under comparable syndicated credit facilities.
Section 3.08 Replacement of Lenders under
Certain Circumstances.
(a) If at any time
(i) the Borrower becomes obligated to pay additional amounts or indemnity payments
described in
Sections 3.01 or
3.05 as a result of any condition described in such Sections or any Lender ceases to make SOFR Loans, as and if applicable, as a result of any condition described in
Sections 3.03 or
3.04, (ii) any Lender becomes a Defaulting Lender, (iii) any Lender becomes a Non-Consenting Lender (as defined below in this
Section 3.08) or (iv) any Lender
becomes a Non-Extending Lender (collectively, a “
Replaceable Lender”), then the Borrower may, on three (3) Business Days’ prior written notice from the Borrower to the Administrative Agent and such
Lender (for the avoidance of doubt, such notice shall be deemed provided on the same day that an amendment or waiver is posted to the Lenders for consent), either
(i) replace such Lender by causing such Lender
to (and such Lender shall be obligated to) assign pursuant to
Section 10.07(b) (with the assignment fee to be paid by the Borrower in such instance unless waived by the Administrative Agent)
all of its rights and obligations under this Agreement (or, in the case of a Non-Consenting Lender, all of its rights and obligations under this Agreement with respect to the Facility or Facilities for which its consent is required) to one or
more Eligible Assignees;
provided that neither the Administrative Agent nor any Lender shall have any obligation to the Borrower to find a replacement Lender or other such Person or (ii) so long as no
Default or Event of Default shall have occurred and be continuing, terminate the Commitment of such Lender or L/C Issuer, as applicable, and (1) in the case of a Lender (other than an L/C Issuer), repay all Obligations of the Borrower owing
(and the amount of all accrued interest and fees in respect thereof) to such Lender relating to the Loans and participations held by such Lender as of such termination date and (2) in the case of an L/C Issuer, repay all obligations of the
Borrower owing to such L/C Issuer relating to the Loans and participations held by such L/C Issuer as of such termination date and cancel or backstop on terms satisfactory to such L/C Issuer any Letters of Credit issued by it;
provided that
(i) in the case of any such replacement of, or termination of Commitments with respect to a Non-Consenting Lender such replacement or termination shall be
sufficient (together with all other consenting Lenders including any other replacement Lender) to cause the adoption of the applicable modification, waiver or amendment of the Loan Documents, (ii) in the case of any such replacement of, or
termination of Commitments with respect to a Non-Extending Lender, such replacement Lender shall have agreed to the applicable Extension and (iii) in the case of any such replacement as a result of the Borrower having become obligated to pay
amounts described in
Sections 3.01 or
3.05, such replacement would eliminate or reduce payments pursuant to
Sections 3.01 or
3.05, as applicable, in the future. Any Lender being replaced pursuant to this
Section
3.08(a) shall
(i) execute and deliver an Assignment and Assumption with respect to such Lender’s Commitment and outstanding Loans and participations in L/C Obligations and (ii) deliver any Notes evidencing
such Loans to the Borrower or the Administrative Agent (for return to the Borrower). Pursuant to such Assignment and Assumption,
(A) the assignee Lender shall acquire all or a portion, as applicable, of the
assigning Lender’s Commitment and outstanding Loans and participations in L/C Obligations,
(B) all Obligations relating to the Loans and participations (and the amount of all accrued interest, fees and premiums
in respect thereof) so assigned shall be paid in full by the assignee Lender to such assigning Lender concurrently with such Assignment and Assumption and
(C) upon such payment and, if so requested by the
assignee Lender, the assigning Lender shall deliver to the assignee Lender the applicable Note or Notes executed by the Borrower, the assignee Lender shall become a Lender hereunder and the assigning Lender shall cease to constitute a Lender
hereunder with respect to such assigned Loans, Commitments and participations, except with respect to indemnification provisions under this Agreement, which shall survive as to such assigning Lender. In connection with any such replacement,
if any such Replaceable Lender does not execute and deliver to the Administrative Agent a duly executed Assignment and Assumption reflecting such replacement within two (2) Business Days of the date on which the assignee Lender executes and
delivers such Assignment and Assumption to such Replaceable Lender, then such Replaceable Lender shall be deemed to have executed and delivered such Assignment and Assumption without any action on the part of the Replaceable Lender. In
connection with the replacement of any Lender pursuant to this
Section 3.08(a), the Borrower shall pay to such Lender such amounts as may be required pursuant to
Section 3.06.
(b) Notwithstanding anything to the contrary contained above,
(i) any Lender
that acts as an L/C Issuer may not be replaced hereunder at any time that it has any Letter of Credit outstanding hereunder unless arrangements satisfactory to such L/C Issuer (including the furnishing of a backstop standby letter of credit
in form and substance and issued by an issuer reasonably satisfactory to such L/C Issuer or the depositing of Cash Collateral into a cash collateral account in amounts and pursuant to arrangements consistent with the requirements of
Section 2.16) have been made with respect to such outstanding Letter of Credit and (ii) the Lender that acts as the Administrative Agent may not be replaced hereunder in its capacity as the
Administrative Agent or Collateral Agent except in accordance with the terms of
Section 9.09.
(c) In the event that
(i) the Borrower or the Administrative Agent has requested the Lenders to consent to a
waiver of any provisions of the Loan Documents or to agree to any amendment or other modification thereto, (ii) the waiver, amendment or modification in question requires the agreement of all affected Lenders in accordance with the terms of
Section 10.01 or all the Lenders with respect to a certain class of the Loans and (iii) the Required Lenders or Majority Lenders of the applicable class, as applicable, have agreed to such waiver,
amendment or modification, then any Lender who does not agree to such waiver, amendment or modification, in each case, shall be deemed a “
Non-Consenting Lender”;
provided
that the term “Non-Consenting Lender” shall also include any Lender that
(x) rejects (or is deemed to reject) an Extension under
Section 2.19, which Extension
has been accepted by at least the Majority Lenders of the respective Tranche of Loans whose Loans and/or Commitments are to be extended pursuant to such Extension and
(y) does not elect to become a lender in
respect of any Specified Refinancing Debt pursuant to
Section 2.18.
(d) Survival. All of the Loan Parties’ obligations under this
Article
III shall survive termination of the Aggregate Commitments and repayment of all other Obligations hereunder, any assignment by or replacement of a Lender and any resignation or removal of the Administrative Agent.
ARTICLE IV
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
Section 4.01 Conditions to the Initial Credit
Extension on the Closing Date. The obligation of each Lender to make its initial Credit Extension hereunder on the Closing Date is subject to satisfaction of each of the following conditions precedent, except as may be waived or
otherwise agreed between the Borrower and the Lenders:
(a) The Administrative Agent shall have received all of the following, subject to
Section 6.16, each of which shall be originals or facsimiles or “pdf” files unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, as applicable, each dated as of the
Closing Date (or, in the case of certificates of governmental officials, as of a recent date before the Closing Date), and each accompanied by their respective required
schedules and other attachments (and set
forth thereon shall be all required information with respect to the Borrower and its Subsidiaries, after giving effect to the Transactions occurring on or before such date):
(i) an executed counterpart of this Agreement from the Borrower;
(ii) the Guaranty, duly executed by the Borrower and each Guarantor;
(iii) the Intercompany Subordination Agreement;
(iv) the Perfection Certificate;
(v) the Security Agreement, duly executed by the Borrower and each Guarantor, together with:
(A)
subject to Section 6.16, to the extent required to be pledged under the terms of the
Security Agreement, certificates, if any, representing the Equity Interests in each Wholly Owned Subsidiary other than Immaterial Subsidiaries (and other than to the extent that such Equity Interests constitute Excluded Property),
accompanied by undated stock powers executed in blank (or stock transfer forms, as applicable) and instruments evidencing the Pledged Debt (as defined in the Security Agreement) indorsed in blank (or instrument of transfer, as applicable);
(B) copies of proper financing statements, filed or duly prepared for filing under the Uniform Commercial Code in all
applicable United States jurisdictions that the Collateral Agent may deem reasonably necessary in order to perfect and protect the Liens on assets of each Loan Party created under the Security Agreement, covering the Collateral described in
the Security Agreement;
(C)
the results of the Uniform Commercial Code (or equivalent) filings, intellectual property lien
searches, and tax and judgment lien searches made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificate and copies of the financing statements (or similar documents) disclosed by such search and
evidence reasonably satisfactory to the Administrative Agent that the liens indicated by such financing statements (or similar documents) are permitted by this Agreement;
(D)
subject to Section 6.16, insurance certificates and endorsements with respect to the
insurance policies contemplated by Section 6.07, naming the Collateral Agent as additional insured or loss payee, as applicable; and
(E)
all other documents and instruments required to create and perfect the Collateral Agent’s
security interests in the Collateral shall have been executed by each Loan Party, as applicable, and filed or delivered to the Collateral Agent and, if applicable, shall be in proper form for filing in accordance with applicable Law;
(vi)
an Intellectual Property Security Agreement
, duly
executed by the Collateral Agent and each Loan Party that owns intellectual property that is required to be pledged in accordance with the Security Agreement;
(vii)
such customary documents and certifications (including Organization Documents and, if
applicable, good standing certificates or certificates of status) as the Administrative Agent may reasonably require to evidence (A) the identity, authority and
capacity of each Responsible Officer of the Loan Parties acting as such in connection with this Agreement and the other Loan Documents and (B) that each Loan Party is
duly organized or formed, and that each of them is validly existing and, to the extent applicable, in good standing, except to the extent that failure to be so qualified could not reasonably be expected to have a Material Adverse Effect;
(viii)
an opinion of (A)
Wachtell, Lipton, Rosen & Katz, special New York counsel to the Borrower, (B) Berger McDermott LLP, Delaware counsel to the Borrower,
(C) Stoel Rives LLP, Oregon
counsel to the Borrower, (D) Brownstein Hyatt Farber Schreck LLP, Nevada counsel to the Borrower and (E) Stinson LLP, Kansas counsel to the Borrower, in each case in form and substance reasonably satisfactory to the Administrative Agent;
(ix)
a solvency certificate executed by a senior financial officer (or an officer serving the
equivalent function) of the Borrower (after giving effect to the Transactions occurring on or before the Closing Date) substantially in the form attached hereto as
Exhibit J;
(x) a Note executed by the Borrower in favor of each Lender requesting a Note at least three (3) Business
Days prior to the Closing Date;
(xi) a Committed Loan Notice and a Letter of Credit Application, if applicable, in each case relating to the initial Credit Extension to
be made on the Closing Date; and
(xii) a certificate of a Responsible Officer of the Borrower certifying that the conditions set forth in
Sections 4.01(b),
(d)
and
(e) have been satisfied.
(b) Except as otherwise disclosed in that certain amended Form
10, as filed by the Borrower with the SEC on October 9, 2024, since June 30, 2024, a Material Adverse Effect shall not have occurred.
(c) The Borrower shall have provided at least
three (3) Business Days prior to the Closing Date (x) all documentation and other information about the Borrower and the Guarantors as has been reasonably requested in
writing at least ten (10) Business Days prior to the Closing Date by the Administrative Agent or any Lender that the Administrative Agent or such Lender reasonably determines is required by regulatory authorities under applicable
“know your customer” requirements and applicable anti-money-laundering laws, including the PATRIOT Act and
(y) if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation,
the Borrower shall have delivered to each Lender that so requests a Beneficial Ownership Certification in relation to the Borrower.
(d) The representations and warranties of the
Loan Parties contained in Article V or any other Loan Document shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) on and as of the
Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (and in all respects if any such representation or
warranty is already qualified by materiality) as of such earlier date.
(e) No Default or Event of Default shall have occurred and be continuing
or would result from the Transactions contemplated to occur on the Closing Date.
(f) All fees required to be paid on the Closing Date pursuant to the Fee Letter and the reasonable and
documented out-of-pocket expenses required to be paid on the Closing Date pursuant to the Engagement Letter, to the extent such expenses are invoiced at least three (3) Business Days prior to the Closing Date (or such later date as the
Borrower may reasonably agree) shall, upon the initial borrowing hereunder, have been paid or shall be paid substantially concurrently with the initial funding under this Agreement (which amounts may, at the Borrower’s option, be offset
against the proceeds of the Initial Term Loans or the proceeds of the funding of the Initial Revolving Credit Commitments).
(g) The Administrative Agent shall have received
(i) audited consolidated
financial statements of the Borrower for the two most recent fiscal years ended at least 60 days prior to the Closing Date (which the Administrative Agent acknowledges, with respect to the 2022 and
2023 fiscal
years, have been received) and (ii) unaudited interim consolidated financial statements of the Borrower for each quarterly period (other than the fourth quarter of a fiscal year) ended at least 45 days prior to the Closing Date that is
subsequent to the date of the latest financial statements delivered pursuant to the preceding
clause (i).
Without limiting the generality of the provisions of Section 9.03, for purposes of determining compliance with the conditions specified in
this Section 4.01, each Lender as of the Closing Date shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required hereunder to be
consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the Closing Date specifying its objection thereto.
Section 4.02 Conditions to All Credit Extensions. The obligation of each Lender to honor any Request for Credit Extension (other than on the Closing Date,
or with respect to a Committed Loan Notice requesting only a conversion of Loans to the other Type, or a continuation of SOFR Loans) is subject to the satisfaction or due waiver in accordance with
Section
10.01 of the following conditions precedent (subject to
Section 1.02(i)):
(a) The representations and warranties of the Borrower and each other Loan Party contained in
Article V or any other Loan Document shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) on and as of
the date of such Credit Extension, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (and in all respects if any such
representation or warranty is already qualified by materiality) as of such earlier date, and except that for purposes of this
Section 4.02, the representations and warranties contained in
Sections 5.05(a) and
(b) shall be deemed to refer to the most recent financial statements furnished pursuant to
Sections 6.01(a) and
(b), respectively,
prior to such proposed Credit Extension.
(b) No Default or Event of Default shall exist at the time of or immediately after giving effect to such
proposed Credit Extension.
(c) The Administrative Agent and, if applicable, the L/C Issuer shall have received a Request for Credit
Extension in accordance with the requirements hereof.
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants, in each case after giving effect to the Transactions occurring on or before such date, to the Administrative Agent, Collateral Agent and the Lenders on
the Closing Date and on each other date thereafter on which a Credit Extension is made, that:
Section 5.01 Existence, Qualification and
Power; Compliance with Laws. Each Loan Party and each of the Restricted Subsidiaries (subject, in the case of
clause (c), to
Section 5.03) (a) is a Person duly organized, formed
or incorporated, amalgamated or continued, validly existing and in good standing (to the extent such concept is applicable in the relevant jurisdiction) under the Laws of the jurisdiction of its incorporation or organization, (b) has all
requisite power and authority to (i) own or lease its assets and carry on its business and (ii) execute, deliver and perform its obligations under the Loan Documents to which it is a party, (c) is duly qualified and is authorized to do
business and in good standing (to the extent such concept is applicable in the relevant jurisdiction) under the Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such
qualification and (d) has all requisite governmental licenses, authorizations, consents and approvals to operate its business as currently conducted; except in each case referred to in
clauses (a) (other than with respect to the
Borrower),
(b)(i),
(b)(ii) (other than with respect to the Borrower),
(c) and
(d), to the extent that any failure to be so or to have such would not
reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
Section 5.02 Authorization; No Contravention. The execution, delivery and performance by each Loan Party of each Loan Document to which such Person is or is to be a party, are within
such Loan Party’s corporate or other powers, have been duly authorized by all necessary corporate or other organizational action and do not (a) contravene the terms of any of such Person’s Organization Documents or (b) violate any Law, except
in the case of this
clause (b), to the extent that such violation would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
Section 5.03 Governmental Authorization; Other Consents. No approval,
consent, exemption, authorization or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with
(a) the execution, delivery,
performance by, or enforcement against, any Loan Party of this Agreement or any other Loan Document, or for the consummation of the Transactions,
(b) the grant by any Loan Party of the Liens granted by it
pursuant to the Collateral Documents or
(c) the perfection or maintenance of the Liens created under the Collateral Documents, except for
(w) filings and registrations necessary to
perfect the Liens on the Collateral granted by the Loan Parties consisting of UCC financing statements and filings in the United States Patent and Trademark Office and the United States Copyright Office,
(x) the
approvals, consents, exemptions, authorizations, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect,
(y) those approvals, consents, exemptions,
authorizations or other actions, notices or filings set out in the Collateral Documents and
(z) those approvals, consents, exemptions, authorizations or other actions, notices or filings, the failure of which to
obtain or make would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
Section 5.04 Binding Effect. This
Agreement and each other Loan Document has been duly executed and delivered by each Loan Party (to the extent such concept is applicable in the relevant jurisdiction and subject, in each case, to
Section
5.03) that is party thereto. This Agreement and each other Loan Document constitutes, a legal, valid and binding obligation of such Loan Party, enforceable against each Loan Party that is party thereto in accordance with its
terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally and by general principles of equity).
Section 5.05 Financial Statements; No Material Adverse Effect.
(a) The audited consolidated financial statements of the Borrower (or of any Parent Holding Company or
Subsidiary of a Parent Holding Company allowed to be delivered pursuant to the terms hereof) and its Subsidiaries most recently delivered pursuant to
Section 6.01(a) fairly present in all
material respects the consolidated financial condition of the Borrower (or of any Parent Holding Company or Subsidiary of a Parent Holding Company allowed to be delivered pursuant to the terms hereof) and its Subsidiaries as of the dates
thereof and their results of operations for the period covered thereby in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein.
(b) The unaudited consolidated financial statements of the Borrower (or of any Parent Holding Company or
Subsidiary of a Parent Holding Company allowed to be delivered pursuant to the terms hereof) and its Subsidiaries most recently delivered pursuant to
Section 6.01(b) (i)
were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein, and (ii) fairly present in all material respects the consolidated financial condition of the
Borrower (or of any Parent Holding Company or Subsidiary of a Parent Holding Company allowed to be delivered pursuant to the terms hereof) and its Subsidiaries as of the date thereof and their results of operations for the period covered
thereby, subject to the absence of footnotes and to normal and recurring year-end audit adjustments.
(c) Except as otherwise disclosed in certain amended Form
10, as filed by the
Borrower with the SEC on October 9, 2024, since the Closing Date, there has been no event or circumstance, either individually or in the aggregate, that has had or would reasonably be expected to have a Material Adverse Effect.
(d) The Projections prepared by or on behalf of the Borrower or any of its representatives and that have been made available to any Lenders
or Agents in writing prior to the Closing Date in connection with the Transactions or the other transactions contemplated hereby were prepared in good faith on the basis of the assumptions stated therein, which assumptions were believed by
the Borrower to be reasonable in light of the conditions existing at the time of delivery of such forecasts; it being understood that no assurance can be given that any particular projections will be realized, actual results may vary from
such forecasts and that such variations may be material.
Section 5.06 Litigation. There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of the
Borrower, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, against any Restricted Group Member, or against any of their properties or revenues that would reasonably be expected to have a Material
Adverse Effect.
Section 5.07 Use of Proceeds. The
Borrower:
(a) will only use the proceeds of the Initial Term Loans
(i) to fund the Closing
Payment, (ii) to pay the Transaction Costs (including paying any fees, commissions and expenses associated therewith), (iii) to finance any OID and/or upfront fees and (iv) for working capital and other general corporate purposes;
(b) will only use the proceeds of the Revolving Credit Loans made on the Closing Date
(i) to pay the Transaction Costs in an amount not to exceed $20,000,000 (including paying any fees, commissions and expenses associated therewith), (ii) to finance any OID and/or upfront fees and (iii) for working
capital and other general corporate purposes (other than the Transaction Costs); and
(c) will use the Letters of Credit issued and the proceeds of all other Borrowings made after the Closing Date to
finance the working capital needs of any Restricted Group Member, for general corporate purposes of any Restricted Group Member (including acquisitions, restricted payments and other Investments permitted hereunder) and/or for any other
purpose not prohibited by this Agreement.
Section 5.08 Ownership of Property; Liens. Each Loan Party and each of the Restricted Subsidiaries
has fee simple or other comparable valid title to, or leasehold interests in, all real property necessary in the ordinary conduct of its business, free and clear of all Liens except for minor defects in title that do not materially interfere
with its ability to conduct its business or to utilize such assets for their intended purposes and Liens not prohibited by
Section 7.02, except where the failure to have such title or
interests would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the use or operation of any real property necessary for the ordinary conduct of the Borrower’s business, taken as a whole.
Section 5.09 Environmental
Compliance. Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect:
(a) the Restricted Group and their respective operations and properties are in compliance with all applicable
Environmental Laws and Environmental Permits and none of the Restricted Group are subject to any Environmental Liability.
(b) (i) None of the properties currently or, to the knowledge of the Borrower, formerly owned or operated by any
Restricted Group Member is listed or, to the knowledge of the Borrower, proposed for listing on the NPL or on the SEMS or any analogous foreign, state, provincial, territorial or local list, (ii) there is no asbestos or asbestos-containing
material on any property currently owned or operated by any Restricted Group Member requiring investigation, remediation, mitigation, removal, or assessment, or other response, remedial or corrective action, pursuant to any Environmental Law
and (iii) Hazardous Materials have not been
Released and there exists no threat of Release of Hazardous Materials on any property currently or, to the knowledge of the Borrower, formerly owned or
operated by any Restricted Group Member, except for such Releases or threats of Releases that were in compliance with, or would not reasonably be expected to give rise to liability of any Restricted Group Member under any Environmental Law.
(c) None of the Restricted Group is undertaking, either individually or together with other potentially responsible parties, any
investigation, remediation, mitigation, removal, assessment or remedial, response or corrective action relating to any actual or threatened Release of Hazardous Materials at any site, location or operation, either voluntarily or pursuant to
the order of any Governmental Authority or the requirements of any Environmental Law.
(d) All
Hazardous Materials Released, generated,
used, treated, handled or stored at, or transported to or from, any property currently or, to the knowledge of the Borrower, formerly owned or operated by any Restricted Group Member have been disposed of in a manner that would not
reasonably be expected to result in liability to any Restricted Group Member.
(e) None of the Restricted Group has received notice of or is subject to any claim, action, proceeding or suit
with respect to any actual or alleged Environmental Liability.
Section 5.10 Taxes. The Restricted Group Members have filed or have
caused to be filed all federal, state, local and other Tax returns and reports required to have been filed (taking into account any valid extensions thereof), and have paid all Taxes (including in their capacity as withholding agents)
levied or imposed upon them or their properties, income or assets otherwise due and payable, except those
(a) which are being contested in good faith by appropriate proceedings diligently conducted and for
which adequate reserves have been provided in accordance with GAAP or
(b) with respect to which the failure to make such filing or payment would not reasonably be expected, individually or in the aggregate, to
have a Material Adverse Effect.
Section 5.11 Employee Benefit Plans.
(a) Except as would not reasonably be expected, individually or in the aggregate, to result in a Material
Adverse Effect,
(i) each Plan is in compliance with the applicable provisions of ERISA, the Code and other applicable federal and state Laws and (ii) each Plan that is intended to be a qualified plan under
Section 401(a) of the Code may rely upon an opinion letter for a prototype plan or has received a favorable determination letter from the IRS to the effect that the form of such Plan is qualified under
Section 401(a) of the Code and the trust related thereto has been determined by the IRS to be exempt from federal income tax under
Section 501(a) of the Code, or an application for
such a letter will be submitted to the IRS within the applicable required time period with respect thereto or is currently being processed by the IRS, and to the knowledge of any Loan Party, nothing has occurred that would prevent, or cause
the loss of, such tax-qualified status.
(b) Except as would not reasonably be expected, individually or in the aggregate,
to result in a Material Adverse Effect, each Foreign Plan is in compliance with all requirements of Law applicable thereto and the respective requirements of the governing documents for such plan.
(c) Except as would not reasonably be expected to have a Material Adverse Effect:
(i)
there are no pending or, to the knowledge of any Loan Party, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan and (ii) there has been no “prohibited transaction” within the meaning of
Section 4975 of the Code or
Section 406 or
407 of ERISA (and not otherwise exempt under
Section 408 of ERISA) with respect to any Plan.
(d) Except as would not reasonably be expected to have a Material Adverse Effect:
(i)
No ERISA Event has occurred and neither any Loan Party nor, to the knowledge of any Loan Party, any ERISA Affiliate is aware of any fact, event or circumstance that would reasonably be expected to constitute or result in an ERISA Event with
respect to any Plan, Multiemployer Plan or Foreign Plan, (ii) each Loan Party and each ERISA Affiliate has met all applicable requirements under the Pension Funding Rules in respect of each Plan, and no waiver of the minimum funding
standards under such Pension Funding Rules has been applied for or obtained, (iii) there exists no Unfunded Pension Liability, (iv) as of the most recent valuation date for any Plan, the present value of all accrued benefits under such Plan
(based on the actuarial assumptions used to fund such Plan) did not exceed the value of the assets of such Plan allocable to such accrued benefits,
(v) neither any Loan Party nor, to the knowledge of any Loan
Party, any ERISA Affiliate knows of any facts or circumstances that would reasonably be expected to cause the funding target attainment percentage (as defined in Section 430(d)(2) of the Code) for any Plan, if applicable, to drop below
80.0% as of the most recent valuation date,
(vi) neither any Loan Party nor any ERISA Affiliate has incurred any liability to the PBGC other than for the payment of premiums, and
there are no premium payments which have become due that are unpaid, (vii) neither any Loan Party nor any ERISA Affiliate has engaged in a transaction that could be subject to Sections 4069 or 4212(c) of ERISA and (viii) no Plan has been
terminated by the plan administrator thereof or by the PBGC and no event or circumstance has occurred or exists that would reasonably be expected to cause the PBGC to institute proceedings under Title IV of ERISA to terminate any Plan or
Multiemployer Plan.
Section 5.12 Subsidiaries;
Capital Stock. As of the Closing Date there are no Restricted Subsidiaries other than those specifically disclosed in
Schedule 5.12, and all of the outstanding Capital Stock in such Restricted
Subsidiaries that are owned by a Loan Party have been validly issued, are fully paid and non-assessable (other than for those Restricted Subsidiaries that are limited liability companies and limited partnerships and to the extent such
concepts are not applicable in the relevant jurisdiction) and are owned free and clear of all Liens except for Permitted Liens. As of the Closing Date, each Subsidiary of the Borrower (other than any Excluded Subsidiaries) is listed on
Schedule 5.12.
Section 5.13 Margin Regulations; Investment
Company Act.
(a) None of the Loan Parties is engaged, nor will any such Loan Party engage, principally or as one of its
important activities, in the business of purchasing or carrying Margin Stock, or extending credit for the purpose of purchasing or carrying Margin Stock. Neither the making of any Credit Extension hereunder nor the use of proceeds thereof
will violate any regulations of the FRB, including the provisions of
Regulations T, U or X of the FRB. No proceeds of any Borrowings and no Letters of Credit will be used to purchase or carry any
Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock;
provided that this sentence shall not be included in any representation or warranty in
connection with the establishment of any New Loan Commitments or the incurrence of New Term Loans unless otherwise agreed by the Borrower and the applicable lenders under any such facility.
(b) None of the Loan Parties is, or is required to be, registered as an “investment company” under the
Investment Company Act of 1940, as amended.
Section 5.14 Disclosure. As of the Closing Date, no report,
financial statement, certificate or other written information furnished by or on behalf of any Loan Party (other than projected financial information, pro forma financial information and information of a general economic or industry nature)
to any Agent or any Lender in connection with the transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder or any other Loan Document (as modified or supplemented by other information so furnished), when
taken as a whole, contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein (when taken as a whole), in the light of the circumstances under which they were made, not materially
misleading;
provided that, with respect to projected and pro forma financial information, the Borrower represents only that such information was prepared in good faith based upon assumptions
believed to be reasonable at the time of preparation and delivery; it being understood that actual results may vary from such forecasts and that such variances may be material. As of the Closing Date, in relation to the Initial Term Loans
incurred by the Borrower on such date, the information included in the Beneficial Ownership Certification, if applicable, is, to the knowledge of the Borrower, true and correct in all respects.
Section 5.15 Compliance with Laws. The Borrower and each Restricted
Subsidiary is in compliance in all material respects with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its properties, except in such instances in which
(a)
such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted or
(b) the failure to comply therewith, either individually or in
the aggregate, would not reasonably be expected to have a Material Adverse Effect.
Section 5.16 Intellectual Property; Licenses,
Etc. To the knowledge of the Borrower, the Borrower and each Guarantor owns, licenses or possesses the right to use, all of the trademarks, service marks, trade names, copyrights, patents and other intellectual property rights
(collectively, “
IP Rights”) that are necessary for the operation of its respective business, as currently conducted, except to the extent such failure to own, license or possess, either individually
or in the aggregate, could not reasonably be expected to have a Material Adverse Effect and
provided that the foregoing shall not be deemed to constitute a representation that the Borrower and the
Guarantors do not infringe or violate the IP Rights held by any other Person. Set forth on
Schedule 5.16 is a complete and accurate list of all material registrations or applications for registration
in the United States Patent and Trademark Office or the United States Copyright Office of patents, trademarks, and copyrights owned or, in the case of copyrights, owned or exclusively licensed by the Borrower and Guarantors as of the
Closing Date. To the knowledge of the Borrower, the conduct of the business of the Borrower or Guarantors as currently conducted does not infringe upon or violate any IP Rights held by any other Person, except for such infringements and
violations which, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect, and no claim or litigation alleging any such infringement or violation is pending or, to the knowledge of the Borrower,
threatened in writing, which, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect.
Section 5.17 Solvency. On the Closing
Date, after giving pro forma effect to the Transactions occurring on or before the Spin-Off Date, including the incurrence of indebtedness and obligations being incurred on or before the Spin-Off Date in connection with this Agreement and
the Transactions occurring on or before the Spin-Off Date, the Borrower and its Restricted Subsidiaries, on a consolidated basis, are Solvent.
Section 5.18 Perfection,
Etc. Each Collateral Document delivered pursuant to this Agreement will, upon execution and delivery thereof, be effective to create in favor of the Collateral Agent for the benefit of the Secured Parties, legal, valid and
enforceable Liens on, and security interests in, the Collateral described therein to the extent intended to be created thereby, except as to enforcement, as may be limited by applicable domestic or foreign bankruptcy, winding-up,
insolvency, fraudulent conveyance, reorganization (by way of voluntary arrangement, schemes of arrangements or otherwise), moratorium and other similar laws relating to or affecting creditors’ rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and
(a) when financing statements and other filings in the appropriate form are filed or registered, as applicable, in the offices of the Secretary of
State of each Loan Party’s jurisdiction of organization or formation and applicable documents are filed and recorded as applicable in the United States Copyright Office or the United States Patent and Trademark Office and
(b) upon the taking of possession or control by the Collateral Agent of such Collateral with respect to which a security interest may be perfected only by possession or control (which possession or control shall
be given to the Collateral Agent to the extent possession or control by the Collateral Agent is required by the applicable Collateral Document) the Liens created by the Collateral Documents shall constitute fully perfected Liens and, solely
with respect to Equity Interests (other than with respect to Equity Interests constituting Excluded Property), fully perfected Liens (subject to no other Liens other than Permitted Liens), in each case, so far as possible under relevant law
on, and security interests in (to the extent intended to be created thereby and required to be perfected under the Loan Documents), all right, title and interest of the grantors in such Collateral in each case free and clear of any Liens
other than Liens permitted hereunder.
Section 5.19 Sanctions; OFAC.
(a) Sanctions Laws and Regulations. The Borrower and each of its Subsidiaries is
(i) in compliance with applicable Sanctions Laws and Regulations and (ii) in compliance, in all material respects, with applicable anti-money laundering laws and regulations. No Borrowing or Letter of Credit,
or use of proceeds therefrom, will violate or result in the violation of any Sanctions Laws and Regulations by any party hereto.
(b) OFAC. None of
(i) the Borrower or any other Loan Party and (ii) the
Non-Loan Party Subsidiaries or any director, officer or, to the knowledge of the Borrower, manager, agent or employee of the Borrower or any of their respective Restricted Subsidiaries, in each case, is a Sanctioned Person. The Borrower
will not directly or indirectly use the proceeds of the Loans or otherwise make available such proceeds to any Person,
(x) for the purpose of financing activities or transactions of or with any Sanctioned
Person, or dealings or investments in or with any Sanctioned Country or
(y) in any manner that would constitute or give rise to a violation of Sanctions Laws and Regulations by any party hereto.
Section 5.20 Anti-Corruption Laws. No part of the proceeds of any
Loan will, directly or, to the knowledge of the Borrower, indirectly, be used for any improper payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else
acting in an official capacity, or any other party (if applicable) in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977, as amended, or any
other similar law relating to corruption or bribery that applies to any Loan Party or any of its Subsidiaries (the “
Anti-Corruption Laws”). Each of the Borrower, each of its Subsidiaries and their
respective officers, directors and, to the knowledge of the Borrower, employees and agents are in compliance in all material respects with Anti-Corruption Laws.
Section 5.21 No Default. No Default or Event of Default has occurred or is continuing under this Agreement.
ARTICLE VI
So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation (other than any Remaining Obligations) hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit remains outstanding (other than any Remaining Obligations), the Borrower shall, and shall (except in the case of the covenants set forth in
Sections 6.01,
6.02 and
6.03) cause
each Restricted Subsidiary:
Section 6.01 Financial Statements. Deliver to the Administrative Agent for further distribution to each Lender:
(a) within 90 days after the end of each fiscal year (or 120 days after the fiscal year ending December 31,
2024) (or if such day is not a Business Day, on the next succeeding Business Day) of the Borrower, a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal year, and the related consolidated statements
of income or operations, shareholders’ equity and cash flows for such fiscal year, setting forth in each case, starting with the fiscal year ending December 31, 2025, in comparative form the figures for the previous fiscal year, all in
reasonable detail and prepared in accordance with GAAP, audited and accompanied by a report and opinion of any independent certified public accountant of nationally recognized standing, which report and opinion shall be prepared in
accordance with generally accepted auditing standards and shall not be subject to any qualification or exception as to “going concern” or scope of the audit (other than any such qualification, exception or explanatory paragraph that is
expressly solely with respect to, or expressly resulting solely from,
(i) an upcoming maturity date under the Facilities or other Indebtedness that is
scheduled to occur within
one year from the time such report and opinion are delivered, (ii) any actual or potential inability to satisfy a financial maintenance covenant, including the Financial Covenants, on a future date or in a future period or (iii) the
activities, operations, financial results, assets or liabilities of any Unrestricted Subsidiary (but which may contain an explanatory note or emphasis of matter paragraph));
(b) within 45 days (or 60 days with respect to each of the first three of such fiscal quarters for which
quarterly financial statements are required to be delivered pursuant to this
Section 6.01(b)) after the end of each of the first three fiscal quarters of each fiscal year of the Borrower (or if such day is not a Business Day, the
next succeeding Business Day), starting with the first fiscal quarter ended after the Closing Date, a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal quarter, and the related consolidated
statements of income or operations and cash flows for such fiscal quarter and for the portion of the fiscal year then ended, setting forth in each case, starting with the fiscal quarter ending March 31, 2026, in comparative form the figures
for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, all in reasonable detail and certified by a Responsible Officer of the Borrower as fairly presenting in all material
respects the financial condition, results of operations and cash flows of the Borrower and its Subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes;
(d) if the Borrower has designated any of its Subsidiaries as an Unrestricted Subsidiary, and such
Unrestricted Subsidiary would, if taken as a whole with all other Unrestricted Subsidiaries, constitute a Material Subsidiary, then the annual and quarterly information required by
Sections 6.01(a) and
(b) above shall include a presentation, either on the face of the financial statements or in footnotes thereto, to reflect the adjustments which would be necessary to eliminate the accounts of Unrestricted Subsidiaries from such
financial statements (and which presentation, for the avoidance of doubt, need not be audited).
Notwithstanding the foregoing:
(A) the obligations in
clauses (a),
(b) and
(c) of this
Section 6.01 may be satisfied by
furnishing, at the Borrower’s option, the applicable financial statements or, as applicable, forecasts of
(I) any successor of the Borrower, (II) any Wholly Owned Restricted Subsidiary of the Borrower that,
together with its consolidated Restricted Subsidiaries, constitutes substantially all of the assets of the Borrower and its combined and consolidated Subsidiaries (a “
Qualified Reporting Subsidiary”)
or (III) any Parent Holding Company;
provided that to the extent such information relates to a Qualified Reporting Subsidiary or a Parent Holding Company, such information is accompanied by
customary consolidating information (which may be unaudited) that explains in reasonable detail the material differences between the information relating to such Qualified Reporting Subsidiary or any Parent Holding Company, on the one hand,
and the information relating to the Restricted Group on a standalone basis, on the other hand,
(B)
(i) in the event that the Borrower (or any Parent Holding Company or Subsidiary
of a Parent Holding Company allowed to be delivered pursuant to the terms hereof) delivers to the Administrative Agent an
Annual Report on
Form
10-K for any fiscal year (or similar filing in the applicable jurisdiction or other reports or filings which contain the information contemplated herein), as filed with the SEC or in such form as would have been
suitable for filing with the SEC (or similar governing body in the applicable jurisdiction, in each case), within the time frames set forth in
clause (a) above, such
Form
10-K shall satisfy all requirements of
clause (a) of this
Section 6.01 with respect to such fiscal year to the extent that it contains the information
and report and opinion required by such
clause (a) and such report and opinion does not contain any qualification or exception as to “going concern” or the scope of the audit (other than any such qualification, exception or
explanatory paragraph that is expressly permitted to be contained therein under
clause (a) of this
Section 6.01) (but which may contain an explanatory note or emphasis of matter
paragraph) and (ii) in the event that the Borrower (or any Parent Holding Company or Subsidiary of a Parent Holding Company allowed to be delivered pursuant to the terms hereof) delivers to the Administrative Agent a
Quarterly Report on
Form
10-Q for any fiscal quarter (or similar filing in the applicable jurisdiction or other reports or
filings which contain the information contemplated herein), as filed with the SEC or in such form as would have been suitable for filing with the SEC (or similar governing body in the applicable jurisdiction, in each case), within the time
frames set forth in
clause (b) above, such
Form
10-Q shall satisfy all requirements of
clause (b) of this
Section
6.01 with respect to such fiscal quarter to the extent that it contains the information required by such
clause (b), and
(B) any financial statements required to be delivered pursuant to
Sections 6.01(a) and
6.01(b) shall not be required to
contain:
(i)
purchase accounting adjustments relating to the Transactions or any other transactions permitted hereunder to the extent it is
not practicable to include any such adjustments in such financial statements,
(ii) segment reporting and disclosure (including any required by FASB Accounting Standards Codification Topic
280),
(iii) separate financial statements or other information contemplated by Rules
3-
05,
3-09,
3-10,
3-16, Rule
13-
01 and Rule
13-
02 or
4-
08 of Regulation S-X (or any successor provisions) or any
schedules required
by Regulation S-X,
(iv) information required by Regulation G under the Exchange Act or Item
10, Item
302, Item
402 or Item
601 of Regulation S-K (or any successor provision),
(vi) earnings per share information,
(vii) information regarding executive compensation and related party disclosure related to SEC Release Nos. 33-8732A,
34-54302A and IC-27444A,
(viii) other information customarily excluded from an offering circular, and
(ix) following the consummation of an acquisition in the applicable period or the period thereafter, the obligations in
clauses (a)
and
(b) of this
Section 6.01 with respect to the target of such acquisition may be satisfied by, at the option of the Borrower,
(A) furnishing
management accounts for the target of such acquisition or
(B) omitting the target of such acquisition from the required financial statements of the Borrower and its Subsidiaries for the applicable period and
the period thereafter.
Section 6.02 Certificates; Other Information. Deliver to the Administrative Agent:
(a) no later than five (5) Business Days after the delivery of
(i) the
financial statements referred to in
Sections 6.01(a) and
(b) or (ii) an
Annual Report on Form
10-K or a Quarterly Report on Form
10-Q (in either case, delivered pursuant to the last paragraph of
Section 6.01), a duly completed Compliance Certificate signed by a Responsible Officer of the
Borrower (which delivery may, unless the Administrative Agent or a Lender requests executed originals, be by electronic communication including fax or email and shall be deemed to be an original authentic counterpart thereof for all
purposes);
(b) promptly after the same are available, copies of all annual, regular, periodic and special reports and
registration statements which the Borrower may file with the SEC under
Section 13 or
15(d) of the Exchange Act, or with any Governmental Authority that may be substituted
therefor, or with any national securities exchange, and in any case not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(d) promptly after the receipt thereof by any Loan Party or any of its Subsidiaries, copies of each notice or
other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any material investigation or other material inquiry by such agency regarding financial or other operational results of any
Loan Party or any of its Subsidiaries;
(e) promptly after the assertion or occurrence thereof, notice of any action arising under any Environmental
Law against any Loan Party or any of its Subsidiaries, or of any noncompliance by any Loan Party or any of its Subsidiaries with any Environmental Law or Environmental Permit, in each case that would reasonably be expected to have a
Material Adverse Effect;
(f) together with the delivery of each Compliance Certificate pursuant to
Section 6.02(a), a report
supplementing
Schedule 5.12 hereto to the extent necessary so that the related representation and warranty would be true and correct if made as of the date of such Compliance Certificate; and
(g) promptly, such additional information regarding the business, legal, financial or corporate affairs of any
Loan Party or any Restricted Subsidiary thereof as the Administrative Agent or, following the occurrence and continuation of any Event of Default, any Lender through the Administrative Agent may from time to time reasonably request, except
to the extent that the provision of any such information would breach any law or contract to which the Borrower or a Subsidiary is a party.
Documents required to be delivered pursuant to
Sections 6.01(a),
(b),
(c) or
(d) or
Section 6.02(b) or
(c) (or to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which
such documents are posted on the Borrower’s (or any Parent Holding Company or Subsidiary of a Parent Holding Company allowed to be delivered pursuant to the terms hereof) behalf on the Platform or another relevant internet or intranet
website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent). The Administrative Agent shall have no responsibility to monitor
compliance by the Borrower, and each Lender shall be solely responsible for timely accessing posted documents.
The Borrower hereby acknowledges that
(a) the Administrative Agent and/or the Arrangers will make available to the Lenders and the L/C Issuers materials
and/or information provided by or on behalf of the Borrower hereunder (collectively, “
Borrower Materials”) by posting the Borrower Materials on
IntraLinks/IntraAgency,
SyndTrak or another similar electronic system (the “
Platform”) and
(b) certain of the Lenders (each, a “
Public Lender”) may have personnel who wish only to receive information that
(i) is publicly available, (ii) is not material with respect to the Restricted Group or its respective securities for purposes of applicable foreign, United States federal and state securities laws with respect
to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market related activities with respect to such Persons’ securities or (iii) constitutes information of a
type that would be publicly available if the Restricted Group were public reporting companies (as determined by the Borrower in good faith) (such information, “
Public Side Information”).
Notwithstanding anything herein to the contrary, the Administrative Agent may treat financial statements delivered pursuant to
Sections 6.01(a) and
(b) and Compliance Certificates delivered pursuant to
Section 6.02(a)
as being deemed to be suitable for posting on a portion of the Platform designated “Public Side Information”.
Section 6.03 Notices.
Promptly, after a Responsible Officer of any Loan Party has obtained knowledge thereof, notify the Administrative Agent:
(a) of the occurrence of any Default or Event of Default;
(b) of the institution of any material litigation not previously disclosed by the
Borrower to the Administrative Agent, or any material development in any material litigation that is reasonably likely to be adversely determined, and would, in either case, if adversely determined be reasonably expected to have a Material
Adverse Effect; and
(c) (i) of the occurrence of any ERISA Event, where there is any reasonable
likelihood of the imposition of liability on any Loan Party as a result thereof that would be reasonably expected to have a Material Adverse Effect; and (ii) promptly after any reasonable request therefor by the Administrative Agent or any
Lender, provide copies of
(A) any documents described in Section 101(k)(1) of ERISA that the Borrower or any ERISA Affiliate has received with respect to any Multiemployer Plan with respect to which there is
any reasonable likelihood of a Material Adverse Effect or
(B) any notices described in Section 101(l)(1) of ERISA that the Borrower or any ERISA Affiliate has received with respect to any Multiemployer Plan
with respect to which there is any reasonable likelihood of the imposition of liability that would reasonably be expected to have a Material Adverse Effect;
provided,
however, that if the Borrower has not requested or received such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, the Borrower or ERISA Affiliate shall promptly make a request
for such documents and notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof.
Each notice pursuant to this Section 6.03 shall be accompanied by a statement of a Responsible Officer of the Borrower setting forth
details of the occurrence referred to therein and stating what action the Borrower has taken and proposes to take with respect thereto.
Section 6.04 Payment of Taxes. Pay, discharge or otherwise satisfy as the same shall become due
and payable, all Taxes (including in its capacity as withholding agent) imposed upon it or its income, profits, properties or other assets except those
(a) which are being contested in good faith by
appropriate proceedings diligently conducted and for which adequate reserves in accordance with GAAP are being maintained by any Restricted Group Member or
(b) with respect to which the failure to pay,
discharge or satisfy the same would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
Section 6.05 Preservation of Existence, Etc.
(a) Preserve, renew and maintain in full force and effect its legal existence under the Laws of the jurisdiction of its organization except in a transaction not prohibited by
Sections 7.03 or
7.04,
(b) take all reasonable action to maintain all rights, privileges (including its good standing, if such concept is applicable in its jurisdiction of organization), permits, licenses and franchises necessary or
desirable in the normal conduct of its business, except to the extent that failure to do so would not reasonably be expected to have a Material Adverse Effect or as otherwise permitted hereunder, and
(c) use
commercially reasonable efforts to preserve or renew all of its registered copyrights, patents, trademarks, trade names and service marks, the non-preservation of which would reasonably be expected to have a Material Adverse Effect or as
otherwise permitted hereunder;
provided that nothing in this
Section 6.05 shall require the preservation, renewal or maintenance of, or prevent the
abandonment by, any Restricted Group Member of any registered copyrights, patents, trademarks, trade names and service marks that any Restricted Group Member reasonably determines is not useful to its business or is no longer commercially
desirable.
Section 6.06 Maintenance of Properties. Except if the failure to do so would not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect, maintain, preserve and protect all of its tangible properties and equipment that are necessary in the operation of its business in good working order, repair and
condition, ordinary wear and tear excepted and casualty or condemnation excepted.
Section 6.07 Maintenance of Insurance. Except if the failure to do so would not reasonably be
expected to have a Material Adverse Effect, maintain in full force and effect, with insurance companies that the Borrower believes (in the good faith judgment of the Borrower) are financially sound and responsible at the time the relevant
coverage is placed or renewed, insurance in at least such amounts (after giving effect to any self-insurance which the Borrower believes (in the good faith judgment of management of the Borrower) is reasonable and prudent in light of the
size and nature of its business) and against at least such risks (and with such risk retentions) as are usually insured against in the same general area by companies engaged in businesses similar to those engaged by the Restricted Group.
Subject to
Section 6.16, the Borrower shall use commercially reasonable efforts to ensure that at all times from and after the Closing Date the Collateral Agent, for the benefit of the
Secured Parties, shall be named as an additional insured with respect to liability policies (other than directors and officers policies and workers compensation) maintained by the Borrower, the Borrower and each Guarantor and the Collateral
Agent, for the benefit of the Secured Parties, shall be named as loss payee and mortgagee with respect to the property insurance maintained by the Borrower and each Guarantor;
provided that, unless
an Event of Default shall have occurred and be continuing subject to
Section 2.05,
(A) all proceeds from insurance policies shall be paid to the Borrower or
applicable Guarantor,
(B) to the extent the Collateral Agent receives any proceeds, the Collateral Agent shall turn over to the Borrower any amounts received by it as an additional insured or loss payee under
any property insurance maintained by the Borrower and its Subsidiaries and
(C) the Collateral Agent agrees that the Borrower and/or its Subsidiaries shall have the sole right to adjust or settle any claims
under such insurance.
Section 6.08 Compliance with Laws. Comply with all applicable Laws (including, without
limitation, ERISA, the PATRIOT Act, Anti-Corruption Laws and Sanctions Laws and Regulations) in all material respects and all orders, writs, injunctions and decrees of any Governmental Authority applicable to it or to its business or
property, except if the failure to comply therewith, either individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.
Section 6.09 Books and Records. Maintain proper books of record and account, in a manner to allow
financial statements to be prepared in all material respects in conformity with GAAP consistently applied in respect of all financial transactions and matters involving the assets and business of the Borrower or such Restricted Subsidiary,
as applicable (it being understood and agreed that Non-U.S. Subsidiaries may maintain individual books and records in conformity with generally accepted accounting principles that are applicable in their respective jurisdiction of
organization).
Section 6.10 Inspection Rights. Permit
representatives of the Administrative Agent and, during the continuance of any Event of Default, of each Lender to visit and inspect any of its properties (subject to the rights of lessees or sublessees thereof and subject to any
restrictions or limitations in the applicable lease, sublease or other written occupancy arrangement pursuant to which any Restricted Group Member is a party), to examine its corporate, financial and operating records, and make copies
thereof or abstracts therefrom, and to discuss its affairs, finances and accounts with its directors, managers, officers, and independent public accountants (subject to such accountants’ customary policies and procedures), at such
reasonable times during normal business hours and as often as may be reasonably desired, upon reasonable advance written notice to the Borrower;
provided that, excluding any such visits and
inspections during the continuation of an Event of Default,
(i) only the Administrative Agent on behalf of the Lenders may exercise rights under this
Section 6.10,
(ii) the Administrative Agent shall not exercise such rights more often than one time during any calendar year and (iii) such exercise shall be at the Borrower’s reasonable expense;
provided,
further, that when an Event of Default is continuing the Administrative Agent (or any of its respective representatives) may do any of the foregoing at the reasonable expense of the Borrower at any time
and from time to time during normal business hours and upon reasonable advance written notice. The Administrative Agent and the Lenders shall give the Borrower the opportunity to participate in any discussions with the Borrower’s
accountants. Notwithstanding anything to the contrary in this
Section 6.10, none of the Restricted Group will be required to disclose or permit the inspection or discussion of, any
document, information or other matter
(i) that constitutes non-financial trade secrets or non-financial proprietary information, (ii) in respect of which disclosure to the Administrative Agent or any Lender
(or their respective representatives or contractors) is prohibited by Law or any binding agreement or (iii) that is subject to attorney client or similar privilege or constitutes attorney work product.
Section 6.11 Use of Proceeds. The Borrower will use the Letters of
Credit and the proceeds of the Loans only as provided in
Sections 5.07,
5.13(a),
5.19 and
5.20.
Section 6.12 Covenant to Guarantee Obligations and Give Security.
(a) Upon the formation or acquisition of any new Wholly Owned Subsidiary (including, without
limitation, pursuant to an LLC Division or LP Division, or the creation of new Series LLC or Series LP) by any Loan Party after the Closing Date (
provided that each of
(x)
any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Restricted Subsidiary and
(y) any Excluded Subsidiary ceasing to be an Excluded Subsidiary but remaining a Restricted Subsidiary
shall be deemed to constitute the acquisition of a Restricted Subsidiary for all purposes of this
Section 6.12) and/or (b) upon the acquisition of any property (other than Excluded Property)
by any Loan Party, which property, in the reasonable judgment of the Administrative Agent, is not already subject to a perfected Lien in favor of the Collateral Agent for the benefit of the Secured Parties (and where such a perfected Lien
would be required in accordance with the terms of the Collateral Documents or other Loan Documents), the Borrower shall, at the Borrower’s expense:
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(1) |
in connection with such formation or acquisition of a Subsidiary, within the later of (x) 90 days after such formation or acquisition or (y) the required date of
delivery of the next Compliance Certificate in accordance with Section 6.02(a) after such formation or acquisition (or, in each case, such longer period as the Collateral Agent may
agree in its reasonable discretion), (A) cause each such Subsidiary that is not an Excluded Subsidiary to duly execute and deliver to the Collateral Agent and the Administrative Agent a Guaranty
Supplement, in form and substance reasonably satisfactory to the Administrative Agent, and a joinder or supplement to the applicable Collateral Documents and (B) (if not already so delivered) deliver
certificates (or the foreign equivalent thereof, as applicable) representing the Pledged Interests of each such Subsidiary (if any) held by the applicable Loan Party accompanied by undated stock powers or other appropriate
instruments of transfer executed in blank and instruments evidencing the Pledged Debt owing by such Subsidiary to any Loan Party indorsed in blank to the Collateral Agent, together with, if requested by the Collateral Agent,
supplements to the Security Agreement; provided that no Excluded Property shall be required to be pledged as Collateral, |
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(2) |
in connection with such acquisition of any property, within the later of (x) 90 days after such acquisition or (y) the required date of delivery of the next Compliance
Certificate in accordance with Section 6.02(a) after such acquisition (or, in each case, such longer period as the Collateral Agent may agree in its reasonable discretion), (A) cause each such Loan Party to duly execute and deliver to the Collateral Agent one or more Security Agreement Supplements, Intellectual Property Security Agreement Supplements and other Collateral
Documents, in form and substance reasonably satisfactory to the Collateral Agent (consistent, to the extent applicable, with the Security Agreement, the Intellectual Property Security Agreement and the other Collateral Documents
(and Section 6.14)), securing payment of all the Obligations of the applicable Loan Party under the Loan Documents and establishing Liens on all such properties or property; provided that such properties or property shall not be required to be pledged as Collateral, and no Security Agreement Supplements, Intellectual Property Security Agreement Supplements or other
Collateral Documents shall be required to be delivered in respect thereof, to the extent that any such properties or property constitute Excluded Property, and |
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(3) |
within the later of (x) 90 days after such formation or acquisition or (y) the required date of delivery of the next Compliance Certificate in accordance with Section 6.02(a) after such formation or acquisition (or, in each case, such longer period as the Collateral Agent may agree in its reasonable discretion), take, and cause such Subsidiary
that is not an Excluded Subsidiary and each applicable Loan Party to take, whatever action (including the filing of UCC financing statements, the giving of notices and delivery of stock and membership interest certificates or
foreign equivalents representing the applicable Capital Stock) as may be necessary or advisable in the reasonable opinion of the Collateral Agent to vest in the Collateral Agent (or in any representative of the Collateral Agent
designated by it), subject to Section 5.03, valid and subsisting Liens on the properties purported to be subject to the Security Agreement Supplements, Intellectual Property Security
Agreement Supplements, supplements to other Collateral Documents and security agreements delivered pursuant to this Section 6.12, in each case to the extent required under the Loan
Documents and subject to the Perfection Exceptions, enforceable against all third parties in accordance with their terms, and |
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(4) |
at any time and from time to time, promptly execute and deliver any and all further instruments and documents and take all such other action as the Collateral Agent in its reasonable judgment may deem necessary or desirable in
obtaining the full benefits of, or in perfecting and preserving the Liens of, such guaranties, Security Agreement Supplements, Intellectual Property Security Agreement Supplements, Collateral Documents and security agreements, in
each case, with respect to guaranteeing and/or securing Obligations consistent with the terms hereof, in each case to the extent required under the Loan Documents and subject to the Perfection Exceptions.
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For the avoidance of doubt, nothing in this Section 6.12 or in Section 6.14 shall be
deemed to require any Restricted Group Member to grant security interests or take steps with respect to perfection thereof to the extent such steps are not required in the Collateral Documents entered into on the Closing Date (or after the
Closing Date in accordance with Section 6.16) or to the extent in contravention with the Perfection Exceptions.
Notwithstanding anything to the contrary herein or in any other Loan Document, the Borrower shall have the right, at any time, to designate an Excluded Subsidiary as a Guarantor (and to
subsequently release such Guarantee in accordance with Section 9.11(c)); provided that, in the case of a designation of a Non-U.S. Subsidiary, the
jurisdiction of such Subsidiary shall be reasonably satisfactory to the Administrative Agent, and the Administrative Agent, the Collateral Agent and the Lenders, as applicable, shall have received a Beneficial Ownership Certification and
all other documentation and other information about such Non-U.S. Subsidiary as has been reasonably requested in writing by the Administrative Agent, the Collateral Agent or such Lenders that they reasonably determine is required by
regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act and Beneficial Ownership Regulation; provided,
further, that in no circumstance shall an Excluded Subsidiary become a Guarantor unless designated in writing as a Guarantor by the Borrower in its sole discretion.
Section 6.13 Compliance with Environmental Laws. Except, in each case, to the extent that the
failure to do so would not reasonably be expected to have a Material Adverse Effect,
(a) comply, and take commercially reasonable efforts to cause all lessees operating or occupying its properties to comply
with all Environmental Laws and Environmental Permits;
(b) obtain, maintain and renew all applicable Environmental Permits required under Environmental Laws for its operations and properties; and
(c) to the extent required under Environmental Laws, conduct any investigation, mitigation, study, sampling and testing, and undertake any cleanup, removal or remedial, corrective or other response action
necessary to respond to and remove and clean up all Releases of Hazardous Materials from any of its properties, in accordance with the requirements of applicable Environmental Laws;
provided,
however, that no Restricted Group Member shall be required to undertake any such cleanup, removal, remedial, corrective or other action to the extent that its obligation to do so is being contested in
good faith and by proper proceedings and appropriate reserves are being maintained with respect to such circumstances in accordance with GAAP.
Section 6.14 Further Assurances.
(a) Promptly upon request by the Administrative Agent, or the Collateral Agent or any Lender through the
Administrative Agent, and subject to the limitations described in
Section 6.12,
(i) correct any material defect or error that may be discovered in any Loan
Document or other document or instrument relating to any Collateral or in the execution, acknowledgment, filing or recordation thereof and (ii) do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register
any and all such further acts, deeds, certificates, assurances and other instruments as the Administrative Agent, or the Collateral Agent or any Lender through the Administrative Agent, may reasonably require from time to time in order to
grant, preserve, protect and continue the validity, perfection and priority of the security interests created or intended to be created by the Collateral Documents. Notwithstanding anything to the contrary in any Loan Documents, neither
the Borrower nor any other Loan Party shall be required to make any filings or take any other actions to perfect, evidence or create the Lien on and security interest in any intellectual property except for filings in the United States
Patent and Trademark Office or the United States Copyright Office and the filing of UCC financing statements, and neither the Borrower nor any other Loan Party shall be required to reimburse the Administrative Agent or the Collateral Agent
for any costs incurred in connection with any filings or actions to perfect, evidence or create the Lien on and security interest in any intellectual property other than in connection with such filings in the United States Patent and
Trademark Office or the United States Copyright Office and the filing of such UCC financing statements.
(b) Promptly following any request therefor, provide information and documentation reasonably requested by the
Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under applicable anti-money-laundering laws, the PATRIOT Act and the Beneficial Ownership Regulation.
Section 6.15 Maintenance of Ratings. Use commercially reasonable efforts to obtain and maintain
(but not obtain or maintain a specific rating)
(a) a public corporate family rating of the Borrower and a rating of the Facilities, in each case from Moody’s, and
(b) a public
corporate credit rating of the Borrower and a rating of the Facilities, in each case from S&P (it being understood and agreed that “commercially reasonable efforts” shall in any event include the payment of customary rating agency fees
and cooperation with information and data requests by Moody’s and S&P in connection with their ratings process).
Section 6.16 Post-Closing Undertakings. Within the time periods specified on
Schedule 6.16
hereto (as each may be extended by the Administrative Agent in its reasonable discretion), complete such undertakings as are set forth on
Schedule 6.16 hereto.
Section 6.17 No Change in Line of Business. Not engage in any material lines of business
substantially different from those lines of business conducted by the Spinco Business on the Closing Date or any business reasonably related, complementary, synergistic or ancillary thereto or reasonable extensions thereof (or other lines
of business which are permitted as Investments).
Section 6.18 Transactions with Affiliates.
(a) Not enter into or conduct any transaction (including the purchase, sale, lease
or exchange of any property or the rendering of any service) with any Affiliate of the Borrower (an “
Affiliate Transaction”) involving value in excess of the greater of
(i)
$11
,000,000 and (ii)
5.0% of LTM EBITDA unless:
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(1) |
the terms of such Affiliate Transaction, taken as a whole, are not materially less favorable to the Borrower or such Restricted Subsidiary, as applicable, than those that could be obtained in a comparable transaction at the time
of such transaction or the execution of the agreement providing for such transaction in arm’s length dealings with a Person who is not such an Affiliate; and
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(2) |
in the event such Affiliate Transaction involves an aggregate value in excess of the greater of (i) $33,000,000 and (ii) 15.0% of LTM EBITDA, the terms of such
transaction have been approved by a majority of the members of the Board of Directors of the Borrower. |
Any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in
clause (2) of this paragraph if such Affiliate
Transaction is approved by a majority of the Disinterested Directors of the Borrower, if any.
(b) The provisions of the preceding paragraph will not apply to:
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(1) |
any Restricted Payment or other transaction permitted to be made or undertaken pursuant to Section 7.05 (including Permitted Payments) or any Permitted Investment;
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(2) |
any issuance, transfer or sale of (a) Capital Stock, options, other equity-related interests or other securities, or other payments, awards or grants in cash, securities or otherwise to any direct
or indirect parent of the Borrower or future, current or former employee, director, officer, manager, contractor, consultant or advisor (or their respective Controlled Investment Affiliates or Immediate Family Members) of the
Borrower or any of its Subsidiaries or any of its direct or indirect parents and (b) directors’ qualifying shares and shares issued to foreign nationals as required under applicable law; |
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(3) |
any Management Advances and any waiver or transaction with respect thereto;
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(4) |
(a) any transaction between or among the Borrower and any Restricted Subsidiary (or entity that becomes a Restricted Subsidiary as a result of such transaction), or between or among Restricted
Subsidiaries and (b) any merger, amalgamation or consolidation with any direct or indirect parent of the Borrower; provided that such direct or indirect parent
shall have no material liabilities and no material assets other than cash, Cash Equivalents and the Capital Stock of the Borrower and such merger, amalgamation or consolidation is otherwise not prohibited under this Agreement; |
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(5) |
the payment of compensation, fees, costs, reimbursements and expenses to, and indemnities (including under insurance policies) and reimbursements, employment and severance arrangements, and employee benefit and pension expenses
provided on behalf of, or for the benefit of, future, current or former employees, directors, officers, managers, contractors, consultants, distributors or advisors (or their respective Controlled Investment Affiliates or Immediate
Family Members) of the Borrower, any direct or indirect parent thereof or any Restricted Subsidiary (whether directly or indirectly and including through their Controlled Investment Affiliates or Immediate Family Members);
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(6) |
the entry into and performance of obligations of the Borrower or any of its Restricted Subsidiaries under the terms of any transaction arising out of, and any payments pursuant to or for purposes of funding, any agreement or
instrument in effect as of or on the Closing Date, as these agreements and instruments may be amended, modified, supplemented, extended, renewed or refinanced from time to time in accordance with the other terms of this covenant or
to the extent not disadvantageous in any material respect in the reasonable determination of the Borrower to the Lenders when taken as a whole as compared to the applicable agreement as in effect on the Closing Date;
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(7) |
any transaction effected as part of a Qualified Securitization Financing or Receivables Facility, any disposition or acquisition of Securitization Assets, Receivables Assets or related assets in connection with any Qualified
Securitization Financing or Receivables Facility;
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(8) |
transactions with customers, vendors, clients, joint venture partners, suppliers, contractors, distributors or purchasers or sellers of goods or services, in each case in the ordinary course of business or consistent with past
practice, which are fair to the Borrower or its Restricted Subsidiaries, in the reasonable determination of the Borrower, or are on terms, taken as a whole, that are not materially less favorable as might reasonably have been
obtained at such time from an unaffiliated party;
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(9) |
any transaction between or among the Borrower or any Restricted Subsidiary (or any entity that becomes a Restricted Subsidiary as a result of such transaction) or joint venture (regardless of the form of legal entity) in which
the Borrower or any Subsidiary has invested (and which Subsidiary or joint venture would not be an Affiliate of the Borrower but for the Borrower’s or a Subsidiary’s ownership of Equity Interests in such joint venture or
Subsidiary);
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(10) |
any issuance, sale or transfer of Capital Stock (other than Disqualified Stock or Designated Preferred Stock) of the Borrower, any direct or indirect parent thereof or any of its Restricted Subsidiaries or options, warrants or
other rights to acquire such Capital Stock and the granting of registration and other customary rights (and the performance of the related obligations) in connection therewith or any contribution to capital of the Borrower or any
Restricted Subsidiary;
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(13) |
the Transactions and the payment of all fees, costs and expenses (including all legal, accounting and other professional fees, costs and expenses) related to the Transactions, including Transaction Costs;
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(14) |
transactions in which the Borrower or any Restricted Subsidiary, as applicable, delivers to the Administrative Agent a letter from an Independent Financial Advisor stating that such transaction is fair to the Borrower or such
Restricted Subsidiary from a financial point of view or meets the requirements of Section 6.18(a)(1);
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(15) |
the existence of, or the performance by the Borrower or any Restricted Subsidiary of its obligations under the terms of, any equityholders, investor rights or similar agreement (including any registration rights agreement or
purchase agreements related thereto) to which it is party as of the Closing Date and any similar agreement that it (or any direct or indirect parent of the Borrower) may enter into thereafter; provided
that the existence of, or the performance by the Borrower or any Restricted Subsidiary (or any direct or indirect parent of the Borrower) of its obligations under any future amendment to any such existing agreement or under
any similar agreement entered into after the Closing Date will only be permitted under this clause (15) to the extent that the terms of any such amendment or new agreement are not
otherwise, when taken as a whole, more disadvantageous to the Lenders in any material respect in the reasonable determination of the Borrower than those in effect on the Closing Date; |
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(16) |
any purchases by Affiliates of the Borrower of Indebtedness or Disqualified Stock of the Borrower or any of the Restricted Subsidiaries the majority of which Indebtedness or Disqualified Stock is purchased by Persons who are not
Affiliates of the Borrower; provided that such purchases by Affiliates of the Borrower are on the same terms as such purchases by such Persons who are not Affiliates of the Borrower;
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(17) |
(i) investments by Affiliates in securities or loans of the Borrower or any of its Restricted Subsidiaries (and payment of reasonable out-of-pocket expenses incurred by such Affiliates in connection
therewith) so long as the investment is being offered by the Borrower or such Restricted Subsidiary generally to other non-affiliated third party investors on the same or more favorable terms and (ii) payments to Affiliates in
respect of securities or loans of the Borrower or any of its Restricted Subsidiaries contemplated in the foregoing subclause (i) or that were acquired from Persons other than the Borrower and its Restricted Subsidiaries, in
each case, in accordance with the terms of such securities or loans; |
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(18) |
payments by any direct or indirect parent of the Borrower, the Borrower or its Subsidiaries pursuant to any tax sharing agreements or other agreements in respect of Permitted Tax Amounts among any such direct or indirect parent
of the Borrower, the Borrower and/or its Subsidiaries on customary terms to the extent attributable to the ownership or operation of the Borrower and its Subsidiaries;
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(19) |
payments, Indebtedness and Disqualified Stock (and cancellation of any thereof) of the Borrower and its Restricted Subsidiaries and Preferred Stock (and cancellation of any thereof) of any Restricted Subsidiary to any future,
current or former employee, director, officer, manager, contractor, consultant or advisor (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Borrower, any of its Subsidiaries or any of its
direct or indirect parents pursuant to any management equity plan, stock option plan, phantom equity plan or any other management, employee benefit or other compensatory plan or agreement (and any successor plans or arrangements
thereto), employment, termination or severance agreement, or any stock subscription or equityholder agreement with any such employee, director, officer, manager, contractor, consultant or advisor (or their respective Controlled
Investment Affiliates or Immediate Family Members) that are, in each case, approved by the Borrower in good faith;
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(20) |
any management equity plan, stock option plan, phantom equity plan or any other management, employee benefit or other compensatory plan or agreement (and any successor plans or arrangements thereto), employment, termination or
severance agreement, or any stock subscription or equityholder agreement between the Borrower or its Restricted Subsidiaries and any distributor, employee, director, officer, manager, contractor, consultant or advisor (or their
respective Controlled Investment Affiliates or Immediate Family Members) approved by the reasonable determination of the Borrower or entered into in connection with the Transactions;
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(21) |
any transition services arrangement, supply arrangement or similar arrangement entered into in connection with or in contemplation of the disposition of assets or Capital Stock in any Restricted Subsidiary permitted under Section 7.04 or entered into with any Business Successor, in each case, that the Borrower determines in good faith is either fair to the Borrower or otherwise on customary terms for such
type of arrangements in connection with similar transactions;
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(22) |
transactions entered into by an Unrestricted Subsidiary with an Affiliate prior to the day such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary as described under the definition of “Unrestricted Subsidiary” and
pledges of Capital Stock of Unrestricted Subsidiaries;
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(23) |
(i) any lease entered into between the Borrower or any Restricted Subsidiary, as lessee, and any Affiliate of the Borrower, as lessor and (ii) any operational services or other arrangement entered
into between the Borrower or any Restricted Subsidiary and any Affiliate of the Borrower, in each case, which is approved by the reasonable determination of the Borrower; |
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(24) |
intellectual property licenses and research and development agreements in the ordinary course of business or consistent with past practice;
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(25) |
payments to or from, and transactions with, any Subsidiary or any joint venture in the ordinary course of business or consistent with past practice (including any cash management arrangements or activities related thereto);
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(26) |
the payment of fees, costs and expenses related to registration rights and indemnities provided to equityholders pursuant to equityholders, investor rights, registration rights or similar agreements;
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(27) |
transactions undertaken in the ordinary course of business pursuant to membership in a purchasing consortium; and
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(28) |
Permitted Intercompany Activities, Permitted Tax Restructurings, Intercompany License Agreements and related transactions.
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In addition, if the Borrower or any of its Restricted Subsidiaries
(i) purchases or otherwise acquires assets or properties from a
Person which is not an Affiliate, the purchase or acquisition by an Affiliate of the Borrower of an interest in all or a portion of the assets or properties acquired shall not be deemed an Affiliate Transaction (or cause such purchase or
acquisition by the Borrower or such Restricted Subsidiary to be deemed an Affiliate Transaction) or (ii) sells or otherwise disposes of assets or other properties to a Person who is not an Affiliate, the sale or other disposition by an
Affiliate of the Borrower of an interest in all or a portion of the assets or properties sold shall not be deemed an Affiliate Transaction (or cause such sale or other disposition by the Borrower or such Restricted Subsidiary to be deemed
an Affiliate Transaction).
So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation (other than any Remaining Obligations) hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding (other than any Remaining Obligations),
(A) except with respect to
Section 7.03 and
Section
7.06, the Borrower shall not, nor shall it permit any Restricted Subsidiary to and
(B) with respect to
Section 7.03 and
Section 7.06, the Borrower shall not, nor shall it permit any Guarantor to:
Section 7.01 Indebtedness.
(a) Incur any Indebtedness (including Acquired Indebtedness); provided that the Borrower and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness) in an amount not to exceed the
Incremental Amount available as of the date of Incurrence (subject to Section 1.02(i)); provided, however, that such Indebtedness, other than Extendable Bridge Loans/Interim Debt,
has a (i) Stated
Maturity that is no earlier than the latest Maturity Date applicable with respect to any then outstanding Term Loans and (ii) a Weighted Average Life to Maturity that is no shorter than the then longest remaining Weighted Average Life to
Maturity of any then outstanding Term Loans (
provided that notwithstanding the foregoing, any such Indebtedness incurred in reliance on an Inside Maturity Basket shall be permitted to have
a Stated Maturity earlier than the Maturity Date of and a Weighted Average Life to Maturity that is shorter than any
Facilities to which such Inside Maturity Basket applies (it being agreed that no such
final Stated Maturity or Weighted Average Life to Maturity shall be less than the final Stated Maturity and remaining Weighted Average Life to Maturity of the Initial Term Loans))
(such
Indebtedness Incurred and Disqualified Stock and Preferred Stock issued, “Ratio Debt”); provided, further, that the aggregate principal amount of Indebtedness
(including Acquired Indebtedness) Incurred pursuant to the foregoing by Non-Loan Party Subsidiaries shall not exceed the Non-Loan Party Sublimit as of the date of Incurrence (subject to Section 1.02(i)).
(b) The provisions of
Section 7.01(a) will not prohibit the incurrence of the following Indebtedness
(collectively, “
Permitted Debt”):
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(1) |
(w) Indebtedness incurred under the Loan Documents, including any refinancing thereof in accordance with Section 2.18, (x) Credit Agreement
Refinancing Debt and any Refinancing Indebtedness in respect thereof (or successive refinancings thereof that each constitute Refinancing Indebtedness), (y) Incremental Equivalent Debt and any
Refinancing Indebtedness in respect thereof (or successive refinancings thereof that each constitute Refinancing Indebtedness) and (z) Permitted Debt Exchange Notes; |
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(2) |
Guarantees by the Borrower or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary so long as the incurrence of such Indebtedness or other obligations is not prohibited by
the terms of this Agreement;
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(3) |
Indebtedness of the Borrower to any Restricted Subsidiary or Indebtedness of a Restricted Subsidiary to the Borrower or any Restricted Subsidiary; provided, however, that:
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|
(a) |
any subsequent issuance or transfer of Capital Stock or any other event which results in any such Indebtedness being held by a Person other than the Borrower or a Restricted Subsidiary, and
|
|
(b) |
any sale or other transfer of any such Indebtedness to a Person other than the Borrower or a Restricted Subsidiary, shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Borrower or such
Restricted Subsidiary, as applicable;
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|
(4) |
Indebtedness represented by any Indebtedness (other than Indebtedness incurred pursuant to clause (1) of this Section 7.01(b)) outstanding on the Closing Date and any Guarantees thereof and, to the extent the
outstanding principal amount thereof is in excess of $10,000,000, listed on Schedule 7.01, (c) Refinancing Indebtedness incurred in respect of any Indebtedness
described in this clause (4) or clauses (2) or (5) of this Section 7.01(b) or incurred pursuant to Section 7.01(a) and (d) Management Advances; |
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(5) |
Indebtedness of the Borrower or any Restricted Subsidiary incurred or issued to finance an acquisition or Investment (“ Incurred Acquisition Indebtedness”) or Acquired Indebtedness; provided that (i) in the case of Incurred Acquisition Indebtedness, (A) the aggregate principal amount of such Incurred Acquisition
Indebtedness does not exceed the sum of (X) the Incremental Amount available as of the date of incurrence and (Y) the greater of $110,000,000 and 50.0% of LTM EBITDA (this clause (Y), the “ Incurred Acquisition General Basket”; and ( provided further that (A) unsecured Incurred Acquisition Indebtedness may be incurred in an unlimited amount if the Borrower would be in compliance with the Financial Covenants after giving pro forma effect to the incurrence
of such Indebtedness, (B) the aggregate principal amount of such Incurred Acquisition Indebtedness incurred by Non-Loan Party Subsidiaries shall not exceed the available Non-Loan Party Sublimit and (C) such Incurred Acquisition Indebtedness, other than Extendable Bridge Loans/Interim Debt, shall (x) have a Stated Maturity that is no earlier than the latest Maturity
Date applicable with respect to any then outstanding Term Loans and (y) have a Weighted Average Life to Maturity that is no shorter than the then longest remaining Weighted Average Life to Maturity of
any then outstanding Term Loans ( provided that notwithstanding the foregoing, any such Incurred Acquisition Indebtedness incurred in reliance on an Inside Maturity Basket shall be permitted
to have a Stated Maturity and Weighted Average Life to Maturity earlier than the Stated Maturity and Weighted Average Life to Maturity of any Facilities to which such Inside Maturity Basket applies (it being agreed that no such
final Stated Maturity or Weighted Average Life to Maturity shall be less than the final Stated Maturity and remaining Weighted Average Life to Maturity of the Initial Term Loans) and (ii) in the case of Acquired Indebtedness, (A) such Indebtedness was in existence prior to such acquisition, merger, amalgamation or consolidation, (B) such Indebtedness was not created in contemplation of such
acquisition, merger, amalgamation or consolidation, (C) the only obligors with respect to such Indebtedness shall be those Persons who were obligors of such Indebtedness prior to such acquisition,
merger, amalgamation or consolidation and such Indebtedness shall not be secured other than by the assets of those Persons who were obligors of such Indebtedness prior to such acquisition, merger, amalgamation or consolidation and (D) immediately after giving pro forma effect to such acquisition or Investment, no Event of Default shall have occurred and be continuing; |
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(6) |
Swap Obligations (excluding Swap Obligations which are entered into for speculative purposes);
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(7) |
Indebtedness (i) represented by Finance Lease Obligations or Purchase Money Obligations in an aggregate outstanding principal amount which, when taken together with the principal amount of all other
Indebtedness incurred pursuant to this clause (7)(i) and then outstanding, does not exceed the greater of (a) $110,000,000 and (b) 50.0%
of LTM EBITDA at the time of incurrence, and any Refinancing Indebtedness in respect thereof and (ii) arising out of Sale and Leaseback Transactions in an aggregate outstanding principal amount which, when taken together with the
principal amount of all other Indebtedness incurred pursuant to this clause (7)(ii) and then outstanding, does not exceed the greater of (a) $1100,000,000 and (b)
50.0% of LTM EBITDA at the time of incurrence, and any Refinancing Indebtedness in respect thereof; |
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(8) |
Indebtedness in respect of (a) workers’ compensation claims, health, disability or other employee benefits, property, casualty or liability insurance, self-insurance obligations, customer guarantees, performance, indemnity,
surety, judgment, bid, appeal, advance payment (including progress premiums), customs, value added or other tax or other guarantees or other similar bonds, instruments or obligations, completion guarantees and warranties or relating
to liabilities, obligations or guarantees incurred in the ordinary course of business or consistent with past practice; (b) the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against
insufficient funds in the ordinary course of business or consistent with past practice; (c) customer deposits and advance payments (including progress premiums) received from customers for goods or services purchased in the ordinary
course of business or consistent with past practice; (d) letters of credit, bankers’ acceptances, discounted bills of exchange, discounting or factoring of receivables or payables for credit management purposes, warehouse receipts,
guarantees or other similar instruments or obligations issued or entered into, or relating to liabilities or obligations incurred in the ordinary course of business or consistent with past practice; (e) Cash Management Agreements; and (f) Settlement Indebtedness; |
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(9) |
Indebtedness arising from agreements providing for guarantees, indemnification, obligations in respect of earn-outs, deferred purchase price or other adjustments of purchase price or, in each case, similar obligations, in each
case, incurred or assumed in connection with the acquisition or disposition of any business, assets, a Person (including any Capital Stock of a Subsidiary) or Investment (other than Guarantees of Indebtedness incurred by any Person
acquiring or disposing of such business, assets, Person or Investment for the purpose of financing such acquisition or disposition);
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|
(11) |
Indebtedness of non-Guarantors in an aggregate principal amount not to exceed the greater of (i) $110,000,000 and (ii) 50.0% of LTM EBITDA at the time of incurrence,
and any Refinancing Indebtedness in respect thereof; |
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(12) |
(a) Indebtedness issued by the Borrower or any of its Subsidiaries to any future, present or former employee, director, officer, manager, contractor, consultant or advisor (or their respective Controlled Investment Affiliates or
Immediate Family Members) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower in each case to finance the purchase or redemption of Capital Stock of the Borrower or any direct or indirect
parent thereof that is not prohibited by Section 7.05 and (b) Indebtedness consisting of obligations under deferred compensation or any other similar arrangements incurred in the ordinary
course of business, consistent with past practice or in connection with the Transactions, any Investment or any acquisition (by merger, consolidation, amalgamation or otherwise); |
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(13) |
Indebtedness of the Borrower or any of its Restricted Subsidiaries consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each
case incurred in the ordinary course of business or consistent with past practice; |
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(14) |
Indebtedness in an aggregate outstanding principal amount which, when taken together with the principal amount of all other Indebtedness incurred pursuant to this clause (14) and, then outstanding, will not exceed the
greater of (i) $165,000,000 and (ii) 75.0% of LTM EBITDA and any Refinancing Indebtedness in respect thereof (the “ General Debt Amount”); |
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(15) |
Indebtedness in respect of any Qualified Securitization Financing or any Receivables Facility in an aggregate outstanding principal amount which, when taken together with the principal amount of all other Indebtedness incurred
pursuant to this clause (15) and then outstanding, does not exceed the greater of (i) $110,000,000 and (ii) 50.0% of LTM EBITDA and any Refinancing Indebtedness
in respect thereof; |
|
(16) |
any obligation, or guaranty of any obligation, of the Borrower or any Restricted Subsidiary to reimburse or indemnify a Person extending credit to customers of the Borrower or a Restricted Subsidiary incurred in the ordinary
course of business or consistent with past practice for all or any portion of the amounts payable by such customers to the Person extending such credit;
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(17) |
Indebtedness to a customer to finance the acquisition of any equipment necessary to perform services for such customer; provided that the terms of such Indebtedness are consistent with
those entered into with respect to similar Indebtedness prior to the Closing Date, including, if so consistent, that (i) the repayment of such Indebtedness is conditional upon such customer ordering a
specific amount or volume, as applicable, of goods or services and (ii) such Indebtedness does not bear interest or provide for scheduled amortization or maturity; |
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(18) |
Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries to the extent that the net proceeds thereof are promptly deposited with a trustee or agent, as applicable, to satisfy or discharge any Ratio Debt, debt
incurred pursuant to this Section 7.01, Incremental Equivalent Debt and/or Credit Agreement Refinancing Debt or exercise the applicable borrower’s or issuer’s legal defeasance or
covenant defeasance, in each case, in accordance with the relevant documents governing such Indebtedness;
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(19) |
Indebtedness of the Borrower or any of its Restricted Subsidiaries arising pursuant to any Permitted Intercompany Activities, Permitted Tax Restructuring and related transactions;
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(22) |
obligations in respect of Disqualified Stock in an amount not to exceed the greater of (i) $22,000,000 and (ii) 10.0% of LTM EBITDA outstanding at the time of
incurrence; |
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(23) |
Indebtedness incurred for the benefit of joint ventures in an aggregate principal amount not to exceed the greater of (i) $110,000,000 and (ii) 50.0% of LTM EBITDA
outstanding at the time of incurrence and any Refinancing Indebtedness in respect thereof; |
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(25) |
to the extent constituting Indebtedness, Guarantees in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of the Borrower and its Subsidiaries.
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For purposes of determining compliance with, and the outstanding principal amount of any particular Indebtedness incurred pursuant to and in compliance with, this Section 7.01:
|
(a) |
in the event that all or any portion of any item of Indebtedness meets the criteria of more than one of the types of Indebtedness described in this Section 7.01, the Borrower, in
its sole discretion, will classify, and may from time to time reclassify pursuant to clause (b) below, such item of Indebtedness (or any portion thereof) and only be required to include the amount and type of such
Indebtedness in Section 7.01(a) or one of the clauses of Section 7.01(b);
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|
(b) |
additionally, subject to clause (c) below, all or any portion of any item of Indebtedness may later be reclassified as having been incurred pursuant to any type of Indebtedness described in this Section 7.01 so long as such Indebtedness is permitted to be incurred pursuant to such provision and any related Liens are permitted to be incurred at the time of reclassification; provided that any Indebtedness incurred by any Loan Party pursuant to one of the clauses of Section 7.01(b) shall automatically cease to be deemed incurred or outstanding for purposes of
such clause of Section 7.01(b) and shall automatically be deemed incurred for the purposes of Section 7.01(a) from and after the first date on which the Borrower or its Restricted Subsidiaries could have incurred
such Indebtedness under Section 7.01(a) without reliance on such clause of Section 7.01(b);
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(c) |
all Indebtedness under this Agreement may only be incurred under or outstanding in reliance on clause (1) of Section 7.01(b);
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(d) |
in the case of any Refinancing Indebtedness, when measuring the outstanding amount of such Indebtedness, such amount shall not include the aggregate amount of accrued and unpaid interest, dividends, premiums (including tender
premiums), defeasance costs, underwriting discounts, fees, costs and expenses (including original issue discount, upfront fees or similar fees) in connection with such refinancing;
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(e) |
Guarantees of, or obligations in respect of letters of credit, bankers’ acceptances or other similar instruments relating to, or Liens securing, Indebtedness that is otherwise included in the determination of a particular amount
of Indebtedness shall not be included;
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(f) |
if obligations in respect of letters of credit, bankers’ acceptances or other similar instruments are being treated as incurred pursuant to any clause of Section 7.01(b) or Section 7.01(a) and the letters of
credit, bankers’ acceptances or other similar instruments relate to other Indebtedness, then such other Indebtedness shall not be included;
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|
(g) |
the principal amount of any Disqualified Stock of the Borrower or a Restricted Subsidiary, or Preferred Stock of a Restricted Subsidiary, will be equal to the greater of the maximum mandatory redemption or repurchase price (not
including, in either case, any redemption or repurchase premium) or the liquidation preference thereof;
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(h) |
Indebtedness permitted by this covenant need not be permitted solely by reference to one provision permitting such Indebtedness but may be permitted in part by one such provision and in part by one or more other provisions of
this covenant permitting such Indebtedness;
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|
(i) |
notwithstanding anything in this covenant to the contrary, in the case of any Indebtedness incurred to refinance Indebtedness initially incurred in reliance on a clause of Section 7.01(b) measured by reference to a
percentage of LTM EBITDA at the time of incurrence, if such refinancing would cause the percentage of LTM EBITDA restriction to be exceeded if calculated based on the percentage of LTM EBITDA on the date of such refinancing, such
percentage of LTM EBITDA restriction shall not be deemed to be exceeded so long as the principal amount of such refinancing Indebtedness does not exceed the principal amount of such Indebtedness being refinanced, plus accrued and unpaid interest, dividends, premiums (including tender premiums), defeasance costs, underwriting discounts, fees, costs and expenses (including original issue discount, upfront
fees or similar fees) in connection with such refinancing; and
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|
(j) |
the amount of Indebtedness issued at a price that is less than the principal amount thereof will be equal to the amount of the liability in respect thereof determined in accordance with GAAP.
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Accrual of interest, accrual of dividends, the accretion of accreted value, the accretion or amortization of original issue discount, the payment of interest in the form of additional
Indebtedness, the payment of dividends in the form of additional shares of Preferred Stock or Disqualified Stock or the reclassification of commitments or obligations not treated as Indebtedness due to a change in GAAP, will not be deemed
to be an incurrence of Indebtedness for purposes of this Section 7.01.
If at any time an Unrestricted Subsidiary becomes a Restricted Subsidiary, any Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary as of such date
(and, if such Indebtedness is not permitted to be incurred as of such date under this Section 7.01, the Borrower shall be in default of this covenant).
For purposes of determining compliance with any
Dollar-denominated restriction on the
incurrence of Indebtedness, the Dollar equivalent principal amount of Indebtedness denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred, in
the case of term debt, or first committed, in the case of revolving credit debt;
provided that if such Indebtedness is incurred to refinance other Indebtedness denominated in a foreign currency, and
such refinancing would cause the applicable
Dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange
rate in effect on the date of such refinancing, such
Dollar-denominated restriction shall be deemed not to have been exceeded so long as the
principal amount of such refinancing Indebtedness does not exceed
(a) the principal amount of such Indebtedness being refinanced,
plus (b)
the aggregate amount of accrued and unpaid interest, dividends, premiums (including tender premiums), defeasance costs, underwriting discounts, fees, costs and expenses (including original issue discount, upfront fees or similar fees) in
connection with such refinancing.
Notwithstanding any other provision of this covenant, the maximum amount of Indebtedness that the Borrower or a Restricted Subsidiary may incur pursuant to this covenant shall not be deemed
to be exceeded solely as a result of fluctuations in the exchange rate of currencies. The principal amount of any Indebtedness incurred to refinance other Indebtedness, if incurred in a different currency from the Indebtedness being
refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such respective Indebtedness is denominated that is in effect on the date of such refinancing.
With respect to any Indebtedness that was permitted to be incurred hereunder on the date of such incurrence, any Increased Amount of such Indebtedness shall also be permitted hereunder
after the date of such incurrence.
This Agreement will not treat
(1) unsecured Indebtedness as subordinated or junior to secured Indebtedness merely because it is unsecured or
(2) senior Indebtedness as subordinated or junior to any other senior Indebtedness merely because it has a junior priority with respect to the same collateral or is secured by different collateral or because it
is guaranteed by different obligors.
Section 7.02 Limitations
on Liens. Create, incur or permit to exist any Lien on any of its assets or properties (each, a “
Subject Lien”), except if such Subject Lien is a
Permitted Lien
.
With respect to any Lien that was permitted to secure such Indebtedness at the time of the incurrence of such Indebtedness, such Lien shall also be permitted to secure any Increased Amount
of such Indebtedness.
Section
7.03 Fundamental Changes. Merge, dissolve, liquidate, amalgamate, consolidate with or into another Person, or dispose of (whether in one transaction or in a series of transactions) all or substantially all of its
assets (whether now owned or hereafter acquired) to or in favor of any Person, except that, (other than in the case of
clause (e) below) so long as no Event of Default would result therefrom:
(a) the Borrower or any Guarantor may merge, amalgamate or consolidate with or into, or directly or indirectly
dispose of all or substantially all of its assets to (upon voluntary liquidation or otherwise) the Borrower, as applicable (including a merger, the purpose of which is to reorganize the Borrower or the Borrower into a new jurisdiction) or
any other Person;
provided that
(A) the surviving person (if other than the Borrower or the Borrower or, in the case of a merger or sale of assets of a Guarantor, a
Guarantor) shall be a person organized under the laws of an Applicable Jurisdiction and shall expressly assume the obligations of the Borrower or such Guarantor under the Loan Documents, as applicable, pursuant to documents reasonably
acceptable to the Administrative Agent and
(B) the surviving person (if other than the Borrower or the Borrower or, in the case of a merger or sale of assets of a Guarantor, a Guarantor) shall provide any
documentation and other information about such person as shall have been reasonably requested in writing by any Lender through the Administrative Agent that such Lender shall have reasonably determined is required by regulatory authorities
under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the PATRIOT Act;
(c) any Guarantor may merge, amalgamate or consolidate with or into, or directly or indirectly dispose of all
or substantially all of its assets to (upon voluntary liquidation or otherwise) the Borrower or any Restricted Subsidiary;
provided that if the transferor in such a transaction is a Loan Party, then
either
(i) the transferee must either be the Borrower or a Guarantor (or become a Guarantor concurrently with the transaction) or (ii) if
clause (i) does not apply, to the extent such Disposition of
assets shall be deemed to constitute either an Investment or Disposition, such Investment is a Permitted Investment or Indebtedness of a Non-Loan Party Subsidiary in accordance with
Section 7.01,
respectively, or such Disposition is a Disposition permitted hereunder;
(d) any Guarantor may merge, amalgamate or consolidate with or into, or directly or indirectly dispose of all
or substantially all of its assets to (upon voluntary liquidation or otherwise) any other Person in order to effect
(i) a Permitted Investment or Indebtedness of a Non-Loan Party Subsidiary in accordance with
Section 7.01, respectively, and/or (ii) a Disposition permitted hereunder;
(e) the Restricted Group may consummate the Transactions;
(f) the Restricted Group may engage in any Permitted Tax Restructuring;
(g) any Guarantor may merge, amalgamate or
consolidate with or into, or directly or indirectly dispose of all or substantially all of its assets to (upon voluntary liquidation or otherwise) any Person, so long as
(i) such transaction is undertaken in
good faith to improve the tax efficiency of any direct or indirect parent of the Borrower, and/or any of its Subsidiaries, and (ii) after giving effect to such transaction, each of the security interest of the Collateral Agent in the
Collateral, taken as a whole, and the value of the Guarantees, taken as a whole, is not materially impaired (as determined in good faith by the Borrower);
(h) the Borrower may contribute Capital Stock of any or all of its subsidiaries to any Guarantor or any
Restricted Subsidiary; and
(i) any Permitted Investment and/or Disposition permitted hereunder may be structured as a merger,
consolidation or amalgamation.
For the avoidance of doubt, notwithstanding anything else contained herein, any LLC Conversion shall be permitted under this Agreement and each other Loan Document.
Section 7.04 Asset Dispositions.
(a) Cause or make any Asset Disposition, unless:
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(1) |
The Borrower or such Restricted Subsidiary, as applicable, receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at least equal to
the fair market value (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by the Borrower, of the shares and assets subject to such Asset Disposition
(including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap);
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(2) |
in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), with a purchase price in excess of the greater of (i)
$44,000,000 and (ii) 20.0% of LTM EBITDA, at least 75% of the consideration from such Asset Disposition received by the Borrower or such Restricted Subsidiary, as applicable, is in the form of cash or
Cash Equivalents; provided that, for purposes of this clause (2), the following will be deemed to be cash: |
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(i) |
the assumption by the transferee of Indebtedness or other liabilities (including by way of relief from, or by any other Person assuming responsibility for, any such Indebtedness or other liabilities, contingent or otherwise) of
the Borrower or a Restricted Subsidiary (other than Subordinated Indebtedness of the Borrower or a Guarantor) or the release of the Borrower or such Restricted Subsidiary from all liability on such Indebtedness or other liability in
connection with such Asset Disposition;
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(ii) |
securities, notes or other obligations or other property received by the Borrower or any Restricted Subsidiary from the transferee that are converted by the Borrower or such Restricted Subsidiary into cash or Cash Equivalents, or
by their terms are required to be satisfied for cash and Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within 365 days following the closing of such Asset Disposition;
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(iii) |
Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the extent that, immediately following such Asset Disposition, neither the Borrower nor any other
Restricted Subsidiary Guarantees the payment of such Indebtedness;
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|
(iv) |
consideration consisting of Indebtedness of the Borrower (other than Subordinated Indebtedness) received after the Closing Date from Persons who are not the Borrower or any Restricted Subsidiary; and
|
|
(v) |
any Designated Non-Cash Consideration received by the Borrower or any Restricted Subsidiary in such Asset Dispositions having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration
received pursuant to this covenant that is at that time outstanding, not to exceed the greater of (i) $50,000,000 and (ii) 22.5% of LTM EBITDA, with the fair market value
of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value; and |
|
(3) |
within 540 days from the later of (A) the date of such Asset Disposition and (B) the receipt of the Net Cash Proceeds from such Asset Disposition (as may be extended
by an Acceptable Commitment as set forth below), an amount equal to the Net Cash Proceeds from such Asset Disposition is applied, to the extent the Borrower or any Restricted Subsidiary, as applicable, elects: |
|
(a) |
to prepay Loans and other Permitted Debt in accordance with Section 2.05(b)(i);
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|
(b) |
(i) to invest (including capital expenditures) in Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary); or
|
(ii) to invest (including capital expenditures) in any one or more businesses, properties or assets that replace the businesses, properties and/or assets that are the subject of such Asset
Disposition, with any such investment made by way of a capital or other lease valued at the present value of the minimum amount of payments under such lease (as reasonably determined by the Borrower);
provided,
however, that a binding agreement shall be treated as a permitted application of Net Cash
Proceeds from the date of such commitment provided that an amount equal to Net Cash Proceeds will be applied to satisfy such commitment within 180 days after the end of such
540-day period (an “
Acceptable Commitment”);
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(c) |
to make any other Permitted Investment (other than in cash and Cash Equivalents); or
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|
(d) |
any combination of the foregoing;
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provided that
(1) pending the final application of the amount of any such Net Cash Proceeds pursuant to
Section 2.05(b)(i) and this
Section 7.04, the Borrower or the applicable Restricted Subsidiaries may apply such Net Cash Proceeds temporarily to
reduce Indebtedness under the Revolving Credit Facility or otherwise apply such Net Cash Proceeds in any manner not prohibited by this Agreement, and (2) the Borrower (or any Restricted Subsidiary, as applicable) may elect to invest in
Additional Assets prior to receiving the Net Cash Proceeds attributable to any given Asset Disposition (
provided that such investment shall be made no earlier than the earliest of notice to the
Administrative Agent of the relevant Asset Disposition, execution of a definitive agreement for the relevant Asset Disposition, and consummation of the relevant Asset Disposition) and deem the amount so invested to be applied pursuant to
and in accordance with
clause (b) above with respect to such Asset Disposition.
Section 7.05 Restricted Payments. (a)
|
(1) |
Declare or pay any dividend or make any distribution on or in respect of the Borrower’s or any Restricted Subsidiary’s Capital Stock (including any such payment in connection with any merger or consolidation involving the
Borrower or any of the Restricted Subsidiaries) except:
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|
(a) |
dividends, payments or distributions payable in Capital Stock of the Borrower (other than Disqualified Stock) or in options, warrants or other rights to purchase such Capital Stock of the Borrower;
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|
(b) |
dividends, payments or distributions payable to the Borrower or a Restricted Subsidiary (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to holders of its Capital Stock other than the
Borrower or a Restricted Subsidiary on no more than a pro rata basis); and
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|
(c) |
dividends or distributions payable to any direct or indirect parent of the Borrower to fund interest payments in respect of Indebtedness of such direct or indirect parent which is guaranteed by the Borrower or any Restricted
Subsidiary;
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(2) |
purchase, repurchase, redeem, retire or otherwise acquire or retire for value any Capital Stock of the Borrower or any direct or indirect parent thereof held by Persons other than the Borrower or any Restricted Subsidiary;
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|
(3) |
purchase, repurchase, redeem, defease or otherwise acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled
sinking fund payment, any Subordinated Indebtedness (other than (a) any such purchase, repurchase, redemption, defeasance or other acquisition or retirement in anticipation of satisfying a sinking fund
obligation, principal installment or final maturity, in each case, due within one year of the date of purchase, repurchase, redemption, defeasance or other acquisition or retirement and (b) any
Indebtedness incurred pursuant to clause (3) of Section 7.01(b)); or |
|
(4) |
make any Restricted Investment;
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(any such dividend, distribution, payment, purchase, redemption, repurchase, defeasance, other acquisition, retirement or Restricted Investment referred to in
clauses (1)
through
(4) above are referred to herein as a “
Restricted Payment”), if at the time the Borrower or such Restricted Subsidiary makes such Restricted Payment:
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(x) |
an Event of Default shall have occurred and be continuing (or would immediately thereafter result therefrom);
|
|
(y) |
the aggregate amount of such Restricted Payment and all other Restricted Payments made subsequent to the Closing Date (and not returned or rescinded) (including Permitted Payments made pursuant to clause (1) (without duplication) and clause (7) of Section 7.05(b), but excluding all other Restricted Payments permitted by Section 7.05(b))
would exceed the sum of (without duplication): |
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(i) |
50% of Consolidated Net Income for the period (treated as one accounting period) from the first day of the fiscal quarter in which the Closing Date occurs to the end of the most recent fiscal quarter ending prior to the date of
such Restricted Payment for which consolidated financial statements are available (which may, at the Borrower’s election, be internal financial statements) (or, in the case such Consolidated Net Income is a deficit, minus 100% of such deficit);
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(ii) |
100% of the aggregate amount of cash, and the fair market value of property or assets or marketable securities, received by the Borrower from the issue or sale of its Capital Stock or as the result of a merger or consolidation
with another Person subsequent to the Closing Date or otherwise contributed to the equity (in each case other than through the issuance of Disqualified Stock or Designated Preferred Stock) of the Borrower or a Restricted Subsidiary
(including the aggregate principal amount of any Indebtedness of the Borrower or a Restricted Subsidiary contributed to the Borrower or a Restricted Subsidiary for cancellation) or that becomes part of the capital of the Borrower or
a Restricted Subsidiary through consolidation or merger subsequent to the Closing Date (other than (A) Net Cash Proceeds or property or assets or marketable securities received from an issuance or sale
of such Capital Stock to a Restricted Subsidiary or an employee stock ownership plan or trust established by the Borrower or any of its Subsidiaries for the benefit of their employees to the extent funded by the Borrower or any
Restricted Subsidiary, (B) cash or property or assets or marketable securities to the extent that any Restricted Payment has been made from such proceeds in reliance on clause (6) of Section 7.05(b) and (C) Excluded Contributions); |
|
(iii) |
100% of the aggregate amount of cash, and the fair market value of property or assets or marketable securities, received by the Borrower or any Restricted Subsidiary from the issuance or sale (other than to the Borrower or a
Restricted Subsidiary or an employee stock ownership plan or trust established by the Borrower or any of its Subsidiaries for the benefit of their employees to the extent funded by the Borrower or any Restricted Subsidiary) by the
Borrower or any Restricted Subsidiary subsequent to the Closing Date of any Indebtedness, Disqualified Stock or Designated Preferred Stock that has been converted into or exchanged for Capital Stock of the Borrower (other than
Disqualified Stock or Designated Preferred Stock), plus, without duplication, the amount of any cash, and the fair market value of property or assets or marketable securities, received by
the Borrower or any Restricted Subsidiary upon such conversion or exchange;
|
|
(iv) |
100% of the aggregate amount received in cash and the fair market value, as determined in good faith by the Borrower, of marketable securities or other property received by means of: (i) the sale
or other disposition (other than to the Borrower or a Restricted Subsidiary) of, or other returns on Investment from, Restricted Investments made by the Borrower or its Restricted Subsidiaries and repurchases and redemptions of, or
cash distributions or cash interest received in respect of, such Investments from the Borrower or its Restricted Subsidiaries and repayments of loans or advances, and releases of guarantees, which constitute Restricted Investments
by the Borrower or its Restricted Subsidiaries, in each case after the Closing Date; or (ii) the sale or other disposition (other than to the Borrower or a Restricted Subsidiary) of the Capital Stock of an Unrestricted Subsidiary or
a dividend, payment or distribution from an Unrestricted Subsidiary (other than to the extent of the amount of the Investment that constituted a Permitted Investment or was made under clause (17)
of Section 7.05(b) and will increase the amount available under the applicable clause of the definition of “Permitted Investment” or clause (17) of Section 7.05(b), as
applicable) or a dividend from a Person that is not a Restricted Subsidiary after the Closing Date; |
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(v) |
in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger, amalgamation or consolidation of an Unrestricted Subsidiary into the Borrower or a Restricted Subsidiary or the transfer of
all or substantially all of the assets of an Unrestricted Subsidiary to the Borrower or a Restricted Subsidiary after the Closing Date, the fair market value of the Investment in such Unrestricted Subsidiary (or the assets
transferred), as determined in good faith by the Borrower at the time of the redesignation of such Unrestricted Subsidiary as a Restricted Subsidiary or at the time of such merger, amalgamation or consolidation or transfer of assets
(after taking into consideration any Indebtedness associated with the Unrestricted Subsidiary so designated or merged, amalgamated or consolidated or Indebtedness associated with the assets so transferred), other than to the extent
of the amount of the Investment that constituted a Permitted Investment or was made under clause (17) of Section 7.05(b) and will increase the amount available under the
applicable clause of the definition of “Permitted Investment” or clause (17) of Section 7.05(b), as applicable; and |
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(vi) |
the greater of (A) $165,000,000 and (B) 75.0% of LTM EBITDA (the foregoing clause (y), the “ Available
Amount Builder Basket”). |
For the avoidance of doubt, the acquisition by and/or transfer to the Borrower and/or any of its Subsidiaries of the Spinco Business and the related transactions in connection with the
Spin-Off shall be deemed not to increase the Available Amount Builder Basket.
(b) Section 7.05(a) will not prohibit any of the following (collectively, “
Permitted Payments”):
|
(1) |
the payment of any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement or the redemption, repurchase
or retirement of Indebtedness if, at the date of any redemption notice, such payment would have complied with the provisions of this Agreement as if it were and is deemed at such time to be a Restricted Payment at the time of such
notice;
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|
(2) |
(a) any prepayment, purchase, repurchase, redemption, defeasance, discharge, retirement or other acquisition of Capital Stock, including any accrued and unpaid dividends thereon (“ Treasury Capital
Stock”) or Subordinated Indebtedness made by exchange (including any such exchange pursuant to the exercise of a conversion right or privilege in connection with which cash is paid in lieu of the issuance of fractional
shares) for, or out of the proceeds of the substantially concurrent sale of, Capital Stock of the Borrower or any direct or indirect parent thereof to the extent contributed to the Borrower (in each case, other than Disqualified
Stock or Designated Preferred Stock) (“ Refunding Capital Stock”), (b) the declaration and payment of dividends on Treasury Capital Stock out of the proceeds of
the substantially concurrent sale or issuance (other than to a Subsidiary of the Borrower or to an employee stock ownership plan or any trust established by the Borrower or any of its Subsidiaries) of Refunding Capital Stock and (c) if immediately prior to the retirement of Treasury Capital Stock, the declaration and payment of dividends thereon was permitted under clause (13) of
this Section 7.05(b), the declaration and payment of dividends on the Refunding Capital Stock (other than Refunding Capital Stock the proceeds of which were used to redeem, repurchase, retire or otherwise acquire any Capital
Stock of a direct or indirect parent of the Borrower) in an aggregate amount per year no greater than the aggregate amount of dividends per annum that were declarable and payable on such Treasury Capital Stock immediately prior to
such retirement; |
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(3) |
any prepayment, purchase, repurchase, exchange, redemption, defeasance, discharge, retirement or other acquisition of Subordinated Indebtedness made by exchange for, or out of the proceeds of the substantially concurrent sale of,
Refinancing Indebtedness permitted to be incurred pursuant to Section 7.01;
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|
(4) |
any prepayment, purchase, repurchase, exchange, redemption, defeasance, discharge, retirement or other acquisition of Preferred Stock of the Borrower or a Restricted Subsidiary made by exchange for, or out of the proceeds of the
substantially concurrent sale of, Preferred Stock of the Borrower or a Restricted Subsidiary, as applicable, that, in each case, is permitted to be incurred pursuant to Section 7.01;
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|
(5) |
any prepayment, purchase, repurchase, exchange, redemption, defeasance, discharge, retirement or other acquisition of Subordinated Indebtedness of the Borrower or a Restricted Subsidiary or Disqualified Stock or Preferred Stock
of a Restricted Subsidiary:
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|
(a) |
from Net Cash Proceeds to the extent permitted under Section 7.04, but only if the Borrower shall have first complied with the terms described under Section 2.05(b)(i); or
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|
(b) |
to the extent required by the agreement governing such Subordinated Indebtedness, Disqualified Stock or Preferred Stock, following the occurrence of (i) a Change of Control (or other similar event
described therein as a “change of control”) or (ii) an Asset Disposition (or other similar event described therein as an “asset disposition” or “asset sale”), but only if the Borrower shall have first complied with the terms
described under “Change of Control” or Section 7.04, as applicable, and purchased all Loans tendered pursuant to the offer to repurchase all the Loans required thereby, prior to
purchasing, repurchasing, redeeming, defeasing or otherwise acquiring or retiring such Subordinated Indebtedness, Disqualified Stock or Preferred Stock; or |
|
(c) |
consisting of Acquired Indebtedness (other than Indebtedness incurred in connection with or contemplation of such acquisition);
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|
(6) |
a Restricted Payment to pay for the prepayment, purchase, repurchase, redemption, defeasance, discharge, retirement or other acquisition of Capital Stock of the Borrower or any direct or indirect parent thereof held by any
future, present or former employee, director, officer, manager, contractor, consultant or advisor (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Borrower or any of its Subsidiaries or any
direct or indirect parent of the Borrower pursuant to any management equity plan, stock option plan, phantom equity plan or any other management, employee benefit or other compensatory plan or agreement (and any successor plans or
arrangements thereto), employment, termination or severance agreement, or any stock subscription or equityholder agreement (including, for the avoidance of doubt, any principal and interest payable on any Indebtedness issued by the
Borrower or any direct or indirect parent thereof in connection with such prepayment, purchase, repurchase, redemption, defeasance, discharge, retirement or other acquisition), including any Capital Stock rolled over, accelerated or
paid out by or to any employee, director, officer, manager, contractor, consultant or advisor (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Borrower or any of its Subsidiaries or any
direct or indirect parent of the Borrower in connection with any transaction; provided, however, that the
aggregate Restricted Payments made under this clause do not exceed the greater of (i) $11,000,000 and (ii) 5.0% of LTM EBITDA in any calendar year (with unused amounts in
any calendar year being carried over to the immediately succeeding calendar year, so long as the aggregate amount of all Restricted Payments made in reliance on this clause (6) in any
fiscal year does not exceed the sum of (a) the greater of (x) $22,000,000 and (y) 10.0% of LTM EBITDA and (b) any amounts described in the immediately following proviso; provided, further, that such amount in any calendar
year may be increased by an amount not to exceed: |
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(a) |
the cash proceeds from the sale of Capital Stock (other than Disqualified Stock) of the Borrower and, to the extent contributed to the capital of the Borrower, the cash proceeds from the sale of Capital Stock of any direct or
indirect parent of the Borrower, in each case, to any future, present or former employee, director, officer, manager, contractor, consultant or advisor (or their respective Controlled Investment Affiliates or Immediate Family
Members) of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower that occurred after the Closing Date, to the extent the cash proceeds from the sale of such Capital Stock have not otherwise been
applied to the payment of Restricted Payments by virtue of clause (y) of Section 7.05(a); plus
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|
(b) |
the cash proceeds of key man life insurance policies received by the Borrower or its Restricted Subsidiaries (or any direct or indirect parent of the Borrower to the extent contributed to the Borrower) after the Closing Date; less
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|
(c) |
the amount of any Restricted Payments made in previous calendar years pursuant to subclauses (a) and (b) of this clause (6); |
provided that the Borrower may elect to apply all or any portion of the aggregate increase contemplated by
subclauses (a) and
(b) of this
clause (6) in any fiscal year;
provided,
further, that
(i) cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employee, director, officer, manager, contractor, consultant or advisor (or their respective
Controlled Investment Affiliates or Immediate Family Members) of the Borrower or its Restricted Subsidiaries or any direct or indirect parent of the Borrower in connection with a repurchase of Capital Stock of the Borrower or any direct or
indirect parent thereof and (ii) the repurchase of Capital Stock deemed to occur upon the exercise of options, warrants or similar instruments if such Capital Stock represents all or a portion of the exercise price thereof and payments, in
lieu of the issuance of fractional shares of such Capital Stock or withholding to pay other taxes payable in connection therewith, in the case of each of
clauses (i) and
(ii), will not be deemed to constitute a Restricted
Payment for purposes of this covenant or any other provision of this Agreement;
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(7) |
the declaration and payment of dividends on Disqualified Stock of the Borrower or any of its Restricted Subsidiaries or Preferred Stock of a Restricted Subsidiary, issued in accordance with Section
7.01;
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|
(8) |
payments made or expected to be made by the Borrower or any Restricted Subsidiary (including, for purposes of clarity, payments by the Borrower or any Restricted Subsidiary to an any direct or indirect parent of the Borrower so
that such parent may make payments) in respect of withholding or similar taxes payable in connection with the exercise or vesting of Capital Stock or any other equity award by any future, present or former employee, director,
officer, manager, contractor, consultant or advisor (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Borrower or any Restricted Subsidiary or any direct or indirect parent of the Borrower and
purchases, repurchases, redemptions, defeasances or other acquisitions or retirements of Capital Stock deemed to occur upon the exercise, conversion or exchange of stock options, warrants, equity-based awards or other rights in
respect thereof if such Capital Stock represents a portion of the exercise price thereof or payments in respect of withholding or similar taxes payable upon exercise or vesting thereof;
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|
(9) |
dividends, loans, advances or distributions to any direct or indirect parent of the Borrower or other payments by the Borrower or any Restricted Subsidiary in amounts equal to
(without duplication): |
|
(a) |
the amounts required for any direct or indirect parent of the Borrower to pay any Parent Entity Expenses or any Permitted Tax Amounts; and
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|
(b) |
amounts constituting or to be used for purposes of making payments to the extent specified in clauses (2), (3), (5),
(13), (15) and (19) of Section 6.18(b); |
|
(10) |
(a) the declaration and payment of dividends on the common stock or common equity interests of the Borrower or any direct or indirect parent thereof (and any equivalent declaration and payment of a distribution of any security
exchangeable for such common stock or common equity interests to the extent required by the terms of any such exchangeable securities and any Restricted Payment to any such direct or indirect parent to fund the payment by such
direct or indirect parent of dividends on such entity’s Capital Stock), in an amount in any fiscal year not to exceed $50,000,000 (which permitted amount shall increase by 5.0% each year beginning with
the first fiscal year after the fiscal year in which the Closing Date occurs); or (b) in lieu of all or a portion of the dividends permitted by clause (a), any prepayment, purchase, repurchase,
redemption, defeasance, discharge, retirement or other acquisition of the Borrower’s Capital Stock (and any equivalent declaration and payment of a distribution of any security exchangeable for such common stock or common equity
interests to the extent required by the terms of any such exchangeable securities and any Restricted Payment to any such direct or indirect parent to fund the payment by such direct or indirect parent of dividends on such entity’s
Capital Stock) for aggregate consideration that, when taken together with dividends permitted by clause (a), does not exceed the amount contemplated by clause (a); |
|
(11) |
payments by the Borrower, or loans, advances, dividends or distributions to any direct or indirect parent thereof to make payments, to holders of Capital Stock of the Borrower or any direct or indirect parent thereof in lieu of
the issuance of fractional shares of such Capital Stock; provided, however, that any such payment, loan, advance, dividend or distribution shall not
be for the purpose of evading any limitation of this covenant or otherwise to facilitate any dividend or other return of capital to the holders of such Capital Stock (as determined in good faith by the Borrower);
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|
(12) |
Restricted Payments that are made (a) in an amount not to exceed the amount of Excluded Contributions or (b) in an amount equal to the amount of Net Cash Proceeds from an asset sale or Disposition in respect of property or assets
acquired, if the acquisition of such property or assets was financed with Excluded Contributions;
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| |
(13) |
(i) the declaration and payment of dividends on Designated Preferred Stock of the Borrower or any of its Restricted Subsidiaries issued after the Closing Date;
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|
(ii) |
the declaration and payment of dividends to a direct or indirect parent of the Borrower in an amount sufficient to allow such direct or indirect parent to pay dividends to holders of its Designated Preferred Stock issued after
the Closing Date; and
|
|
(iii) |
the declaration and payment of dividends on Refunding Capital Stock that is Preferred Stock;
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provided, however, that, in the case of subclause (ii), the amount of dividends paid to a Person
pursuant to such clause shall not exceed the cash proceeds received by the Borrower or the aggregate amount contributed in cash to the equity of the Borrower (other than through the issuance of Disqualified Stock or an Excluded
Contribution of the Borrower), from the issuance or sale of such Designated Preferred Stock; provided that in the case of clauses (i) and (iii), for the most recently ended four
fiscal quarters for which consolidated financial statements are available (which may, at the Borrower’s election, be internal financial statements) immediately preceding the date of issuance of such Designated Preferred Stock or declaration
of such dividends on such Refunding Capital Stock, after giving effect to such payment on a pro forma basis, the Borrower would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the test set forth in Section 7.01(a);
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(14) |
distributions, by dividend or otherwise, or other transfer or disposition of shares of Capital Stock of, or equity interests in, an Unrestricted Subsidiary (or a Restricted Subsidiary that owns one or more Unrestricted
Subsidiaries and no other material assets), or Indebtedness owed to the Borrower or a Restricted Subsidiary by an Unrestricted Subsidiary (or a Restricted Subsidiary that owns one or more Unrestricted Subsidiaries and no other
material assets), in each case, other than Unrestricted Subsidiaries, substantially all the assets of which are cash and Cash Equivalents or proceeds thereof;
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|
(15) |
distributions or payments of Securitization Fees, sales contributions and other transfers of Securitization Assets or Receivables Assets and purchases of Securitization Assets or Receivables Assets pursuant to a Securitization
Repurchase Obligation, in each case in connection with a Qualified Securitization Financing or Receivables Facility;
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(16) |
any Restricted Payment made in connection with the Transactions (including, for the avoidance of doubt, the Closing Payment) and any fees, costs and expenses (including all legal, accounting and other professional fees, costs and
expenses) related thereto, including Transaction Costs, or used to fund amounts owed to Affiliates in connection with the Transactions (including dividends to any direct or indirect parent of the Borrower to permit payment by such
direct or indirect parent of such amounts);
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(17) |
(i) Restricted Payments (including loans or advances) in an aggregate amount outstanding at the time made not to exceed the greater of (a) $110,000,000 and (b) 50.0% of LTM EBITDA at such time, and (ii) any Restricted Payments, so long as, (x) immediately after giving pro forma effect to the payment of any such Restricted Payment
and the incurrence of any Indebtedness the net proceeds of which are used to make such Restricted Payment, the Consolidated Total Net Leverage Ratio shall be no greater than 1.50 to 1.00 and (y) no Event of Default shall have occurred or be continuing; |
|
(18) |
mandatory redemptions of Disqualified Stock issued as a Restricted Payment or as consideration for a Permitted Investment;
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|
(19) |
(i) the redemption, defeasance, repurchase, exchange or other acquisition or retirement of Subordinated Indebtedness of the Borrower or any Guarantor or the making of any Restricted Investment in an aggregate amount outstanding
at the time made, taken together with all other redemptions, defeasances, repurchases, exchanges or other acquisitions or retirements of Subordinated Indebtedness or Restricted Investments made pursuant to this clause (19), not to exceed the greater of (a) $110,000,000 and (b) 50.0% of LTM EBITDA at such time, and (ii) the redemption, defeasance, repurchase, exchange or other acquisition or retirement of Subordinated Indebtedness of the Borrower or any Guarantor, so long as, (x)
immediately after giving pro forma effect to the payment of any such Restricted Payment and the incurrence of any Indebtedness the net proceeds of which are used to make such Restricted Payment, the Consolidated Total Net Leverage
Ratio shall be no greater than 1.50 to 1.00 and (y) no Event of Default shall have occurred or be continuing; |
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(20) |
payments or distributions to dissenting stockholders pursuant to applicable law (including in connection with, or as a result of, exercise of dissenters’ or appraisal rights and the settlement of any claims or action (whether
actual, contingent or potential)), pursuant to or in connection with a merger, amalgamation, consolidation or transfer of assets that complies with Section 7.03;
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|
(21) |
Restricted Payments to a direct or indirect parent of the Borrower to finance Investments that would otherwise be permitted to be made pursuant to this covenant if made by the Borrower; provided
that (a) such Restricted Payment shall be made substantially concurrently with the closing of such Investment (or anytime following the closing of such Investment with respect to earn-out or
similar payments), (b) such direct or indirect parent shall, promptly following the closing thereof, cause (1) all property acquired (whether assets or Capital Stock) to
be contributed to the capital of the Borrower or one of its Restricted Subsidiaries or (2) the merger or amalgamation of the Person formed or acquired by or merged or consolidated with the Borrower or
one of its Restricted Subsidiaries (to the extent not prohibited by Section 7.03) to consummate such Investment, (c) such direct or indirect parent and
its Affiliates (other than the Borrower or a Restricted Subsidiary) receives no consideration or other payment in connection with such transaction except to the extent the Borrower or a Restricted Subsidiary could have given such
consideration or made such payment in compliance with this Agreement, (d) any property received by the Borrower shall not increase amounts available for Restricted Payments pursuant to clause (y)
of Section 7.05(a), except to the extent the fair market value at the time of such receipt of such property exceeds the Restricted Payment made pursuant to this clause (21) and (e) such Investment shall be deemed to be made by the Borrower or such Restricted Subsidiary pursuant to another provision of this covenant (other than pursuant to clause (12) hereof) or pursuant to the definition of “Permitted Investment” (other than pursuant to clause (12) thereof); |
|
(22) |
investments or other Restricted Payments in an aggregate amount not to exceed an amount equal to the Retained Declined Proceeds;
|
|
(23) |
any Restricted Payment made in connection with a Permitted Intercompany Activity, Permitted Tax Restructuring or related transactions; and
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|
(24) |
any Restricted Payment payable solely in the Capital Stock of any Parent Holding Company.
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(c) For purposes of determining compliance with this covenant, in the event that a Restricted Payment or
Investment (or portion thereof) meets the criteria of more than one of the categories of Permitted Payments described in the clauses above, or is permitted pursuant to
Section 7.05(a) and/or
one or more of the clauses contained in the definition of “Permitted Investment,” the Borrower will be entitled to divide or classify (or later divide, classify or reclassify in whole or in part in its sole discretion) such Restricted
Payment or Investment (or portion thereof) in any manner that complies with this covenant, including as an Investment pursuant to one or more of the clauses contained in the definition of “Permitted Investment”;
provided that any Restricted Payment permitted pursuant to one of the clauses of
Section 7.05(b) (other than
Section 7.05(b)(17)(ii) or
Section 7.05(b)(19)(ii), as applicable) shall automatically
cease to be deemed permitted or outstanding for purposes of such clause of
Section 7.05(b), and shall automatically be deemed permitted for the purposes of
Section 7.05(b)(17)(ii) or
Section 7.05(b)(19)(ii), as
applicable, from and after the first date on which the Borrower or its Restricted Subsidiaries could have incurred such Restricted Payment under
Section 7.05(b)(17)(ii) or
Section 7.05(b)(19)(ii), as applicable, without
reliance on such other clause of
Section 7.01(b);
provided,
further, that any Investment permitted
pursuant to one of the clauses of the definition of “Permitted Investment” (other than
clause (34)(y) thereof) shall automatically cease to be deemed permitted or outstanding for purposes of such clause of the definition of
“Permitted Investment” and shall automatically be deemed permitted for the purposes of
clause (34) (y) thereof from and after the first date on which the Borrower
or its Restricted Subsidiaries could have incurred such Investment under
clause (34)(y) of the definition of “Permitted Investment” without reliance on such other clause of such definition.
The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of such Restricted Payment of the asset(s) or securities proposed to be paid, transferred
or issued by the Borrower or such Restricted Subsidiary, as applicable, pursuant to such Restricted Payment. The fair market value of any cash Restricted Payment shall be its face amount, and the fair market value of any non-cash
Restricted Payment, property or assets other than cash shall be determined conclusively by the Borrower acting in good faith.
In connection with any binding commitment or entry into a definitive agreement relating to an Investment, the Borrower or the applicable Restricted Subsidiary may designate such Investment
as having occurred on the date of the binding commitment or entry into the definitive agreement relating thereto (such date, the “
Election Date”) if, after giving pro forma effect to such Investment
and all related transactions in connection therewith (including any contemplated incurrence of Indebtedness) and any related pro forma adjustments, the Borrower or any of its Restricted Subsidiaries would have been permitted to make such
Investment on the relevant Election Date in compliance with this Agreement, and any related subsequent actual making of such Investment will be deemed for all purposes under this Agreement to have been made on such Election Date, including
for purposes of calculating any ratio, compliance with any test, usage of any baskets hereunder (if applicable) and Consolidated EBITDA and for purposes of determining whether there exists any Default or Event of Default (and all such
calculations on and after the Election Date (other than for purposes of determining
(i) actual compliance with the Financial Covenants and (ii) the Applicable Rate or the Applicable
Commitment
Fee) until the termination, expiration, passing, rescission, retraction or rescindment of such binding commitment or definitive agreement shall be made on a pro forma
basis giving effect thereto and all related transactions in connection therewith);
provided that the foregoing shall not limit the application of
Section
1.02(i), to the extent applicable.
For the avoidance of doubt, this covenant shall not restrict the making of, or dividends or other distributions in amounts sufficient to make, any AHYDO Catch-up Payment with respect to any
Indebtedness of any direct or indirect parent of the Borrower, the Borrower or any of its Restricted Subsidiaries permitted to be incurred under this Agreement.
Section 7.06 Burdensome Agreements.
(a) Create or otherwise cause or permit to exist or become effective any
consensual encumbrance or consensual
restriction on the ability of any Loan Party other than the Borrower to pay dividends or make any other distributions on its Capital Stock;
provided that
(x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or
liquidating distributions being paid on common stock and
(y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower or any Restricted
Subsidiary to other Indebtedness incurred by the Borrower or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of Section 7.06(a) will not prohibit:
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(1) |
any encumbrance or restriction (x) for the benefit of the Lenders with respect to the Facilities and the Obligations or under the Loan Documents or (y) pursuant to any
instrument or agreement in effect at or entered into on the Spin-Off Date; |
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(2) |
any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
|
|
(3) |
any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged,
consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Borrower or any Restricted Subsidiary
in connection with an acquisition of assets (other than Capital Stock or Indebtedness incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related
transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary or entered into in
contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause, if another Person is the successor company, any
Subsidiary of such Person or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Borrower or any Restricted Subsidiary when such Person becomes the successor company;
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|
(4) |
any encumbrance or restriction:
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|
(a) |
that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or
other contract or agreement;
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|
(b) |
contained in mortgages, pledges, charges or other security agreements permitted under this Agreement or securing Indebtedness of the Borrower or a Restricted Subsidiary permitted under this Agreement to the extent such
encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
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|
(c) |
contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business
or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower or such Restricted Subsidiary that are subject to
such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted
Subsidiary; or
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(d) |
pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary;
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(5) |
any encumbrance or restriction pursuant to Purchase Money Obligations and Finance Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions on the property so acquired;
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(6) |
any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Borrower or any Restricted
Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
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(7) |
customary provisions in leases, licenses, equityholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments;
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(8) |
encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
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(9) |
any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
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(10) |
any encumbrance or restriction pursuant to Swap Obligations;
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(11) |
other Indebtedness, Disqualified Stock or Preferred Stock of Non-Loan Party Subsidiaries permitted to be incurred or issued subsequent to the Closing Date pursuant to the provisions of Section
7.01 that impose restrictions solely on the Non-Loan Party Subsidiaries party thereto and/or their Subsidiaries; |
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(12) |
restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Borrower, are necessary or advisable to effect such Securitization Facility or
Receivables Facility;
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(13) |
any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be incurred subsequent to the Closing Date pursuant to the provisions of the covenant described under Section 7.01 if (i) the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to
the Lenders than the encumbrances and restrictions contained in this Agreement, together with the security documents associated therewith, or (ii) either (a) the Borrower determines at the time of
entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Borrower’s ability to make principal or interest payments on the Loans or (b) such encumbrance or restriction applies only during the continuance of a default in respect of a payment relating to such agreement or instrument; |
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(14) |
any encumbrance or restriction existing by reason of any lien permitted under Section 7.02;
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(15) |
any encumbrance or restriction arising pursuant to the Transaction Documents; or
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(16) |
any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in the clauses above or this
clause (16) (an “ Initial Agreement”) or contained in any amendment, supplement or other modification to an agreement referred to in the clauses
above or this clause (16); provided, however, that the encumbrances and restrictions with respect to
such Guarantor contained in any such agreement or instrument are no less favorable in any material respect to the Lenders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial
Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Borrower). |
Section 7.07 Accounting Changes. Make any change in fiscal year;
provided,
however, that the Borrower may, upon written notice to the Administrative Agent, change its fiscal year to any other fiscal year reasonably acceptable to the Administrative Agent, in which case, the
Borrower and the Administrative Agent will, and are hereby authorized by the Lenders to, make any amendments to this Agreement that are necessary, in the judgment of the Administrative Agent and the Borrower, as applicable, to reflect such
change in fiscal year.
Section 7.08 Financial Covenants.
(a) Permit the Consolidated Total Net Leverage Ratio as of the last day of any fiscal quarter of the Borrower (commencing with the last day of the first full fiscal quarter to end
after the Closing Date) to be greater than
3.00 to
1.00 (the “
Covenant Leverage Ratio”);
provided
that the Covenant Leverage Ratio may be increased at the Borrower’s option to
3.50 to
1.00 solely with respect to the last day of each of the five immediately succeeding fiscal
quarters ending on or after the consummation of a Qualifying Material Acquisition (each such increase, a “
Financial Covenant Increase”);
provided, further,
that
(i) in order to initiate a Financial Covenant Increase, the Borrower shall provide written notice to the Administrative Agent notifying the Administrative Agent and Lenders that there is a Financial
Covenant Increase in effect by a date no later than fifteen (15) Business Days after consummating such Qualifying Material Acquisition, (ii) there shall be no more than one Financial Covenant Increase in effect at any one time and (iii) at
least one full fiscal quarter shall have passed during which a Financial Covenant Increase was not in effect before the Borrower may elect to initiate a Financial Covenant Increase; or
(b) permit the Consolidated Interest Coverage Ratio as of the last day of any fiscal quarter of the Borrower (commencing with the first full fiscal quarter to end after the Closing
Date) to be less than
3.00 to
1.00 (the covenants set forth in this
Section 7.08, the “
Financial
Covenants”).
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
Section 8.01
Events of Default. Any of the following shall constitute an “
Event of Default”:
(a) Non-Payment. The Borrower or any other Loan Party fails to pay
(i)
when due and as required to be paid herein, any amount of principal of any Loan or L/C Borrowing or (ii) within five (5) Business Days after the same becomes due and payable, any interest on any Loan or on any L/C Borrowing, any fee due
hereunder or any other amount payable hereunder or with respect to any other Loan Document; or
(b) Specific Covenants. The Borrower or any other Loan Party fails to
perform or observe any term, covenant or agreement contained in any of
Section 6.05(a) (solely with respect to the Borrower) or
6.11 (solely with respect to
Section 5.07) or in any Section of
Article VII;
(c) Other Defaults. Any Loan Party fails to perform or observe any covenant or agreement (other than
those specified in
Sections 8.01(a) or
(b) above) contained in any Loan Document on its part to be performed or observed and such failure continues for 30 days after notice thereof by the
Administrative Agent to the Borrower; or
(d) Representations and Warranties. Any representation, warranty, certification or statement of fact
made or deemed made by or on behalf of the Borrower or any other Loan Party herein, in any other Loan Document, or in any document required to be delivered in connection herewith or therewith shall be incorrect or misleading in any material
respect (or in any respect if such representation or warranty is already qualified by materiality) when made or deemed made and, to the extent capable of being cured, such representation, warranty, certification or statement of fact is not
corrected or clarified within 30 days after it was initially made; or
(e) Cross-Default. Any Loan Party or any Restricted Subsidiary:
(A) fails to make any payment beyond the applicable grace period with respect thereto, if any (whether by
scheduled maturity, required prepayment,
acceleration, demand, or otherwise) in respect of any Indebtedness (other than Indebtedness hereunder and intercompany Indebtedness) having an aggregate outstanding principal amount equal to or greater than the Threshold Amount (any such
Indebtedness, “
Material Indebtedness”);
(B) fails to observe or perform any other agreement relating to Material Indebtedness, or any other event occurs under Material Indebtedness, and any applicable grace or cure period under
the applicable Material Indebtedness has expired, such that the holder or holders of such Material Indebtedness (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) have caused, or are permitted to
cause such Indebtedness to become due, in each case, prior to its Stated Maturity;
provided that this
clause (e)(B) shall not apply to
(x) secured Indebtedness
that becomes due as a result of the sale or transfer or other Disposition (including a Casualty Event) of the property or assets securing such Indebtedness permitted hereunder and under the documents providing for such Indebtedness and such
Indebtedness is repaid when required under the documents providing for such Indebtedness,
(y) events of default, termination events or any other similar event under the documents governing Swap Contracts for
so long as such event of default, termination event or other similar event does not result in the occurrence of an early termination date or any acceleration of any amounts or other Indebtedness payable thereunder or
(z) Indebtedness that upon the happening of any such default or event automatically converts into Equity Interests (other than Disqualified Stock or, in the case of a Restricted Subsidiary, Disqualified Stock or
Preferred Stock) in accordance with its terms;
provided,
further, that this
clause (e)(B) shall automatically cease to
apply if the applicable failure or event giving rise hereto is validly waived by the holders of such Material Indebtedness in accordance with the terms of the documents governing such Material Indebtedness prior to any termination of the
Revolving Credit Commitments or acceleration of the Loans pursuant to
Section 8.02; or
(f) Insolvency Proceedings, Etc. The Borrower or any Material Subsidiary:
(i) institutes, resolves to institute or consents to the institution of any proceeding under any Debtor Relief Law, in each case
relating to a winding-up, an administration, a dissolution, or a composition thereof;
(ii) makes an assignment for the benefit of creditors or any other action is commenced (by way of voluntary arrangement, scheme of
arrangement or otherwise);
(iii) appoints, resolves to appoint, applies for or consents to the appointment of any receiver, administrator, administrative receiver,
trustee, custodian, conservator, liquidator, rehabilitator, judicial manager, provisional liquidator, administrator, receiver and manager, controller, monitor or similar officer (any such person, a “
Custodian”)
for it or for all or substantially all of its property;
(iv) has a Custodian appointed with respect thereto without the application or consent of such Person and the appointment continues
undischarged or unstayed for 60 days; or
(v) becomes subject to any proceeding under any Debtor Relief Law (including, without limitation, for the appointment of any Custodian
with respect thereto) relating to such Person or to all or substantially all of its property without the consent of such Person, and such proceeding continues undismissed or unstayed for 60 days; or
(g) Inability to Pay Debts; Attachment.
(i) The Borrower or any
Material Subsidiary admits in writing its inability or fails generally to pay its debts as they become due, or (ii) any writ or warrant of attachment or execution or similar process is issued, commenced or levied against all or
substantially all of the property of any such Person and is not released, vacated or fully bonded within 60 days after its issue, commencement or levy; or
(h) Judgments. There is entered against any Loan Party or any Material Subsidiary a final judgment or
order for the payment of money in an aggregate amount (as to all such judgments and orders) equal to or greater than the Threshold Amount (to the extent not paid and not covered by
(i) independent third-party
insurance as to which the insurer has been notified of such judgment or order and does not deny coverage or (ii) an enforceable indemnity to the extent that such Loan Party or Restricted Subsidiary shall have made a claim for
indemnification and the applicable indemnifying party shall not have disputed such claim) and there is a period of
60 consecutive days during which a stay of enforcement of such judgment, by reason of a
pending appeal, bond or otherwise, is not in effect; or
(i) ERISA.
(i) One or more ERISA Events occur or there is or arises an
Unfunded Pension Liability (taking into account only Plans with positive Unfunded Pension Liability) which ERISA Event or
ERISA Events or Unfunded Pension Liability or
Unfunded Pension Liabilities results or would reasonably be expected to result in liability of any Loan Party in an aggregate amount which would reasonably be expected to result in a Material Adverse Effect or (ii) any Loan Party or any
ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any installment payment with respect to its withdrawal liability under Section 4201 of ERISA which has resulted or could reasonably be expected to
result in liability of any Loan Party in an aggregate amount which would reasonably be expected to result in a Material Adverse Effect; or
(j) Invalidity of Certain Loan Documents.
Any material provision of any Collateral Document and/or any Guaranty (in each case, subject to the Perfection Exceptions), at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or
thereunder (including as a result of a transaction permitted under Section 7.03 or Section 7.04) or satisfaction in full of all the Obligations (other than any Remaining Obligations) ceases to be in full force and effect
(except that any such failure to be in full force and effect with respect to the documents referred to in clause (vii) of the definition of “Loan Documents” shall constitute an Event of Default only if the Borrower receives
notice thereof and the Borrower fails to remedy the relevant failure in all material respects within fifteen days of receiving said notice); or any Lien purported to be created under the Collateral Documents and to extend to assets that
are material to the Borrower and its Subsidiaries on a consolidated basis shall cease to be a valid and perfected Lien on the assets covered thereby (except to the extent that any such loss of perfection results from (A) the Collateral Agent no longer having possession of certificates actually delivered to it representing securities pledged under the Collateral Documents or (B) UCC
continuation statements not being timely filed); or any Loan Party contests in writing the validity or enforceability of any provision of this Agreement, any Collateral Document and/or any Guaranty; or any Loan Party denies in writing
that it has any or further liability or obligation under any Collateral Document or Guaranty (other than as a result of repayment in full of the Obligations (other than any Remaining Obligations) and termination of the Aggregate
Commitments), or purports in writing to revoke or rescind any Collateral Document or Guaranty or the Liens created thereby (except as otherwise expressly provided in this Agreement or the Collateral Documents);
(k) Change of Control. There occurs any Change of Control; or
(l) Spin-Off Date. The Spin-Off Date does not occur on the Closing Date or on the Business Day
immediately following the Closing Date.
Notwithstanding anything to the contrary in this Agreement, no Event of Default or breach of any representation or warranty in
Article V or any covenant in
Article VI or
VII shall constitute a Default or Event of Default if such Event of Default or breach of such representation or warranty in
Article V
or such covenant in
Article VI or
VII would not have occurred but for a fluctuation (or other adverse change) in Exchange Rates.
Section 8.02 Remedies
upon Event of Default. If any Event of Default occurs and is continuing, the Administrative Agent may, or at the request of the Required Lenders shall, take any or all of the following actions:
(a) declare the commitment of each Lender to make Loans and any obligation of the L/C Issuers to make L/C
Credit Extensions to be terminated, whereupon such commitments and obligation shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and
all other amounts owing or payable hereunder or under any other Loan Document to be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower;
(c) require that the
Borrower Cash Collateralize the L/C Obligations (in an amount equal to the then Outstanding Amount thereof); and/or
(d) exercise on behalf of itself, the L/C Issuers and the Lenders all rights and remedies available to it, the
L/C Issuers and the Lenders under the Loan Documents, under any document evidencing Indebtedness in respect of which the Facilities have been designated as “
Designated Senior Debt” (or any
comparable term) and/or under applicable Law;
provided,
however, that upon the occurrence of any Event of Default under
Sections 8.01(f)
or
(g) (with respect to the Borrower or any other Loan Party) or
Section 8.01(l), the obligation of each Lender to make Loans and any obligation of the L/C Issuers to make L/C Credit
Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable, and the obligation of the Borrower to Cash
Collateralize the L/C Obligations as aforesaid shall automatically become effective, in each case without further act of the Administrative Agent or any Lender.
Section 8.04 Application of Funds. After the exercise of remedies provided for in
Section 8.02 (or after an actual or deemed entry of an order for relief with respect to the Borrower under any Debtor Relief Law), any amounts received on account of the Obligations shall,
subject to the provisions of
Sections 2.16 and
2.17, be applied by the Administrative Agent subject to the terms of any Applicable Intercreditor Arrangements in the following order:
(a) first, to payment of that portion of the Obligations constituting fees, indemnities, expenses and
other amounts (including fees, disbursements and other charges of counsel payable under
Section 10.04,
Section 10.05 and amounts payable
under
Article III and amounts owing in respect of
(x) the preservation of Collateral or the Collateral Agent’s security interest in the Collateral or
(y) with respect to enforcing the rights of the Secured Parties under the Loan Documents) payable to the Administrative Agent and the Collateral Agent in their respective capacity as such;
(b) second, to payment in full of Unfunded Advances/Participations (the amounts so applied to be
distributed between or among, as applicable, the Administrative Agent and the L/C Issuers pro rata in accordance with the amounts of Unfunded Advances/Participations owed to them on the date of any such distribution);
(c) third, to payment of that portion of the Obligations constituting fees, indemnities, expenses and
other amounts (other than principal, interest and Letter of Credit fees) payable to the Lenders and the L/C Issuers (including fees, disbursements and other charges of counsel payable under
Sections 10.04
and
10.05) arising under the Loan Documents and amounts payable under
Article III, ratably among them in proportion to the respective amounts described in this
clause (c)
held by them;
(d) fourth, to payment of that portion of the Obligations constituting accrued and unpaid Letter of
Credit fees and interest on the Loans and L/C Borrowings, ratably among the Lenders and the L/C Issuers in proportion to the respective amounts described in this
clause (d) held by them;
(e) fifth,
(i) to payment of that portion of the Obligations
constituting unpaid principal of the Loans and the L/C Borrowings, that portion of the Obligations of the Loan Parties then owing in respect of regularly
scheduled payments or termination payments (whether as
a result of the occurrence of any event of default or other termination event) under the Secured Hedge Agreements and that portion of the Obligations of the Loan Parties then owing under the Secured Cash Management Agreements and (ii) to
Cash Collateralize that portion of L/C Obligations comprising the aggregate undrawn amount of Letters of Credit to the extent not otherwise
Cash
Collateralized by the Borrower pursuant to
Sections 2.03 and
2.16, ratably among the Lenders, the L/C Issuers, the Hedge Banks party to such Secured Hedge Agreements and the Cash Management
Banks party to such Secured Cash Management Agreements in proportion to the respective amounts described in this
clause (e) held by them;
provided that
(x) any
such amounts applied pursuant to the foregoing
clause (ii) shall be paid to the Administrative Agent for the ratable account of the applicable L/C Issuers to Cash Collateralize such L/C Obligations,
(y)
subject to
Sections 2.03(d) and
2.16, amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to this
clause (e) shall be applied to satisfy
drawings under such Letters of Credit as they occur and
(z) upon the expiration of any Letter of Credit without any pending drawing, the
pro rata share of Cash Collateral attributable to such expired
Letter of Credit shall be applied by the Administrative Agent in accordance with the priority of payments set forth in this
Section 8.04;
(f) sixth, to the payment of all other Obligations of the Loan Parties owing under or in respect of
the Loan Documents or under Secured Hedge Agreements and the Secured Cash Management Agreements that are then due and payable to the Administrative Agent and the other Secured Parties, and not otherwise paid pursuant to
clause (e)
above, ratably based upon the respective aggregate amounts of all such Obligations then owing to the Administrative Agent and the other Secured Parties; and
(g) last, after all of the Obligations have been paid in full (other than any Remaining Obligations),
to the Borrower or as otherwise required by Law;
provided that no amounts received from any Guarantor shall be applied to Excluded Swap Obligations of such Guarantor.
If any amount remains on deposit as Cash Collateral after all Letters of Credit have either been fully drawn or expired without any pending drawing, such remaining amount shall be applied
to the other Obligations, if any, in accordance with the priority of payments set forth above. Notwithstanding the foregoing, Obligations arising under Secured Cash Management Agreements and Secured Hedge Agreements shall be excluded from
the application of payments described above if the Administrative Agent has not received written notice thereof, together with such supporting documentation as the Administrative Agent may reasonably request, from the applicable Cash
Management Bank or Hedge Bank, as applicable. Each Cash Management Bank or Hedge Bank not a party to this Agreement that has given the notice contemplated by the preceding sentence shall, by such notice, be deemed to have acknowledged and
accepted the appointment of the Administrative Agent pursuant to the terms of Article IX for itself and its Affiliates as if a “Lender” party hereto.
It is understood and agreed by each Loan Party and each Secured Party that the Administrative Agent and Collateral Agent shall have no liability for any determinations made by it in this Section 8.04, in each case except to the extent resulting from the gross negligence, bad faith or willful misconduct of, or material breach of the Loan Documents by, the Administrative Agent or
the Collateral Agent, as applicable (as determined by a court of competent jurisdiction in a final and non-appealable decision). Each Loan Party and each Secured Party also agrees that the Administrative Agent and the Collateral Agent may
(but shall not be required to), at any time and in its sole discretion, and with no liability resulting therefrom, petition a court of competent jurisdiction regarding any application of Collateral in accordance with the requirements hereof
or any Applicable Intercreditor Arrangements, and the Administrative Agent and the Collateral Agent shall be entitled to wait for, and may conclusively rely on, any such determination.
ARTICLE IX
ADMINISTRATIVE AGENT AND OTHER AGENTS
Section 9.01 Appointment and Authorization of Agents.
(a) Each Lender and L/C Issuer hereby irrevocably appoints JPM and its
successors and permitted assigns to act on its behalf as Administrative Agent hereunder and under the other Loan Documents (subject to the provisions in Section 9.09), and designates and authorizes the Administrative Agent to take
such actions on its behalf under the provisions of this Agreement and each other Loan Document and to exercise such powers and perform such duties as are expressly delegated to the Administrative Agent by the terms of this Agreement or
any other Loan Document, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent may perform any of its duties through its officers, directors, agents, employees, or affiliates. The
provisions of this Article IX (other than Sections 9.09, 9.11, 9.13, 9.14 and 9.15 to the extent of the rights
of the Borrower or the other Loan Parties and the obligations and agreements of the Administrative Agent, the Lenders and the other Secured Parties for the benefit of the Borrower or the other Loan Parties, in each case expressly set forth
therein
) are solely for the benefit of the Administrative Agent and the Lenders, and no Loan Party shall have rights as a third party beneficiary of any of such provisions. Notwithstanding any provision
to the contrary contained elsewhere herein or in any other Loan Document, no Agent shall have any duties or responsibilities, except those expressly set forth herein, nor shall any Agent have or be deemed to have any fiduciary
relationship with any Lender or participant, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against any Agent.
Regardless of whether a Default has occurred and is continuing and without limiting the generality of the foregoing sentence, the use of the term “agent” herein and in the other Loan Documents with reference to any Agent is not intended
to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an
administrative relationship between independent contracting parties; additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative
Agent in connection with this Agreement and the transactions contemplated hereby.
(b) Each L/C Issuer shall act on behalf of the Lenders with respect to any Letters of Credit issued by it and
the documents associated therewith, and such L/C Issuer shall have all of the benefits and immunities
(i) provided to the Agents in this
Article IX with
respect to any acts taken or omissions suffered by such L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and the applications and agreements for letters of credit pertaining to such Letters of
Credit as fully as if the term “Agent” as used in this
Article IX and in the definition of “Agent-Related Person” included such L/C Issuer with respect to such acts or omissions, and (ii) as
additionally provided herein with respect to such L/C Issuer.
(c) The Administrative Agent shall also act as the Collateral Agent under the Loan Documents, and each of the
Lenders (including in its capacities as a Lender, L/C Issuer (if applicable) and a potential Cash Management Bank party to a Secured Cash Management Agreement and/or a potential Hedge Bank party to a Secured Hedge Agreement) hereby
irrevocably appoints and authorizes the Administrative Agent to act as the agent of (and to hold any security interest, charge or other Lien created by the Collateral Documents for) such Lender for purposes of acquiring, holding and
enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Secured Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Collateral Agent
(and any co-agents, sub-agents and attorneys-in-fact appointed by the Collateral Agent pursuant to
Section 9.02 for purposes of holding or enforcing any Lien on the Collateral (or any
portion thereof) granted under the Collateral Documents, or for exercising any rights and remedies thereunder), shall be entitled to the benefits of all provisions of this
Article IX
(including
Section 9.07, as though such co-agents, sub-agents and attorneys-in-fact were the Collateral Agent under the Loan Documents) and
Section
10.04 as if set forth in full herein with respect thereto and all references to Administrative Agent in this
Article IX shall, where applicable, be read as including a
reference to the Collateral Agent. Without limiting the generality of the foregoing, the Lenders hereby expressly authorize
(i) the Administrative Agent and Collateral Agent, as applicable, to execute and
deliver, and to perform its obligations under, each of the Loan Documents to which the Administrative Agent is a party and (ii) the Administrative Agent and the Collateral Agent, as applicable, to execute and deliver, and to perform its
obligations under, any and all documents (including releases, payoff letters and similar documents) with respect to the Collateral and the rights of the Secured Parties with respect thereto (including any intercreditor agreement), as
contemplated by and in accordance with the provisions of this Agreement and the Collateral Documents and acknowledge and agree that any such action by any Agent shall bind the Lenders (including in its capacities as a Lender, L/C Issuer (if
applicable) and a potential Cash Management Bank party to a Secured Cash Management Agreement and/or a potential Hedge Bank party to a Secured Hedge Agreement).
Section 9.02 Delegation of Duties. The
Administrative Agent may execute any of its duties and exercise its rights and powers under this Agreement or any other Loan Document (including for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof)
granted under the Collateral Documents or of exercising any rights and remedies thereunder) by or through agents, employees or attorneys-in-fact and shall be entitled to advice of counsel and other consultants or experts concerning all
matters pertaining to such duties. The Administrative Agent and any such sub agent may perform any and all of its duties and exercise its rights and powers by or through their respective Agent-Related Persons. The Administrative Agent
shall not be responsible for the negligence or misconduct of any agent or attorney-in-fact that it selects in the absence of gross negligence or willful misconduct by the Administrative Agent, as determined by a final non-appealable
judgment by a court of competent jurisdiction. The exculpatory provisions of this
Article IX shall apply to any such sub agent and to the Agent-Related Persons of the Administrative Agent
and any such sub agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent.
Section 9.03 Liability of Agents.
(a) No Agent-Related Person shall be
(i) liable for any action taken or omitted
to be taken by any of them under or in connection with this Agreement or any other Loan Document or the transactions contemplated hereby (except for its own gross negligence, bad faith or willful misconduct, to the extent determined in a
final, non-appealable judgment by a court of competent jurisdiction), (ii) liable for any action taken or not taken by it or its Related Parties under or in connection with this Agreement or any other Loan Document
(A) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in
Sections
10.01 and
8.02) or
(B) in the absence of its own gross negligence, bad faith or willful misconduct, as determined by the final, non-appealable judgment of a court of competent jurisdiction, in
connection with its duties expressly set forth herein, (iii) responsible in any manner to any Lender or participant for any recital, statement, representation or warranty made by any Loan Party or any officer thereof, contained herein or in
any other Loan Document, or in any certificate, report, statement or other document referred to or provided for in, or received by the Administrative Agent under or in connection with, this Agreement or any other Loan Document, (iv)
responsible for or have any duty to ascertain or inquire into the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document or any other agreement, instrument or document, or the
creation, perfection or priority of any Lien, or security interest created or purported to be created under the Collateral Documents, or for any failure of any Loan Party or any other party to any Loan Document to perform its obligations
hereunder,
(v) responsible for or have any duty to ascertain or inquire into the value or the sufficiency of any Collateral or (vi) responsible for or have any duty to ascertain or inquire into the
satisfaction of any condition set forth in
Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. No
Agent-Related Person shall be under any obligation to any Lender or participant to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of any Loan Party or any Affiliate thereof. The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into monitor or
enforce, compliance with the provisions relating to Disqualified Institutions. Without limiting the generality of the foregoing, the Administrative Agent shall not
(x) be obligated to ascertain, monitor or
inquire as to whether any Lender or participant or prospective Lender or participant is a Disqualified Institution or
(y) have any liability with respect to or arising out of any assignment or participation of
loans, or disclosure of confidential information, to, or the restriction on any exercise of rights or remedies of, any Disqualified Institution.
(b) As to any matters not expressly provided for herein and in the other Loan Documents (including enforcement
or collection), neither the Administrative Agent nor the Collateral Agent, as applicable, shall 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 written instructions of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, pursuant to the terms in the Loan Documents), and, unless and until
revoked in writing, such instructions shall be binding upon each Lender and each L/C Issuer;
provided,
however, that neither the Administrative Agent nor
the Collateral Agent, as applicable, shall be required to take any action that
(i) the Administrative Agent or the Collateral Agent, as applicable, in good faith believes exposes it to liability unless the
Administrative Agent or the Collateral Agent, as applicable, receives an indemnification satisfactory to it from the Lenders and the L/C Issuers with respect to such action or (ii) is contrary to this Agreement or any other Loan Document or
applicable law, including any action that may be in violation of the automatic stay under any requirement of Law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or
termination of property of a Defaulting Lender in violation of any requirement of Law relating to bankruptcy, insolvency or reorganization or relief of debtors;
provided,
further, that the Administrative Agent or the Collateral Agent, as applicable, may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting
until such clarification or direction has been provided. Neither the Administrative Agent nor the Collateral Agent, as applicable, shall have any duty to disclose, except as expressly set forth herein and in the other Loan Documents, and
shall not be liable for the failure to disclose, any information relating to the Borrower or any of their Affiliates that is communicated to or obtained by any Person serving as an Agent or any of its Affiliates in any capacity. Nothing in
this Agreement shall require the Administrative Agent or the Collateral Agent, as applicable, to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of
any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(c) Any assignor of a Loan or seller of a participation hereunder shall be entitled to rely conclusively on a
representation of the assignee Lender or Participant in the relevant Assignment and Assumption or participation agreement, as applicable, that such assignee or purchaser is not a Disqualified Institution.
Section 9.04 Reliance by Agents.
(a) Each Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing,
communication, signature, resolution, representation, notice, request, consent, certificate, instrument, affidavit, letter, telegram, facsimile, telex or telephone message, electronic mail message, Internet or intranet website posting or
other distribution statement or other document or conversation reasonably believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons. Each Agent also may rely upon any statement made to it
orally or by telephone and reasonably believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan that by its
terms must be fulfilled to the satisfaction of a Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender unless the Administrative Agent shall have received notice to the contrary from such Lender
prior to the making of such Loan. Each Agent may consult with, and rely upon (and be fully protected in relying upon), advice and statements of legal counsel (including counsel to any Loan Party), independent accountants and other experts
selected by such Agent. Each Agent shall be fully justified in failing or refusing to take any action under any Loan Document unless it shall first receive such advice or concurrence of the Required Lenders (or such greater number of
Lenders as may be expressly required hereby in any instance) as it deems appropriate and, if it so requests, it shall first be indemnified to its satisfaction by the Lenders against any and all liability and expense which may be incurred by
it by reason of taking or continuing to take any such action. Each Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement or any other Loan Document in accordance with a request or consent
of the Required Lenders (or such greater number of Lenders as may be expressly required hereby in any instance) and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Lenders.
(b) For purposes of determining compliance with the conditions specified in
Sections
4.01 and
4.02, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by
or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the proposed Closing Date, specifying its objection thereto.
Section 9.05 Notice of Default. The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default, unless the Administrative Agent shall have received written notice from a Lender or the Borrower referring to this Agreement, describing such Default and stating that such notice is a “notice of
default”. The Administrative Agent will notify the Lenders of its receipt of any such notice. The Administrative Agent shall take such action with respect to any Event of Default as may be directed by the Required Lenders or the Required
Revolving Lenders, as applicable, in accordance with
Article VIII;
provided,
however, that unless and until the Administrative Agent has received
any such direction, the Administrative Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Event of Default as it shall deem advisable or in the best interest of the Lenders.
Notwithstanding anything herein to the contrary, the Administrative Agent shall not be liable for, or be responsible for any loss, cost or expense suffered by the Borrower, any Subsidiary, any Lender or any L/C Issuer as a result of any
determination of the outstanding Revolving Credit Commitments, any of the component amounts thereof or any portion thereof attributable to each Lender or L/C Issuer, or any Exchange Rate or
Dollar-equivalent
in the absence of its own gross negligence, bad faith or willful misconduct, to the extent determined in a final, non-appealable judgment by a court of competent jurisdiction.
Section 9.06 Credit Decision; Disclosure of Information by Agents. Each Lender acknowledges that
no Agent-Related Person has made any representation or warranty to it, and that no act by any Agent hereafter taken, including any consent to and acceptance of any assignment or review of the affairs of any Loan Party or any Affiliate
thereof, shall be deemed to constitute any representation or warranty by any Agent-Related Person to any Lender as to any matter, including whether Agent-Related Persons have disclosed material information in their possession. Each Lender
represents to each Agent that
(i) the Loan Documents set forth the terms of a commercial lending facility, (ii) it is engaged in making, acquiring or holding commercial loans and in providing other facilities
set forth herein as may be applicable to such Lender, in each case in the ordinary course of business, and not for the purpose of investing in the general performance or operations of the Borrower, or purchasing, acquiring or holding any
other type of financial instrument (and each Lender agrees not to assert a claim in contravention of the foregoing), (iii) it has, independently and without reliance upon any Agent-Related Person and based on such documents and information
as it has deemed appropriate, made its own appraisal of, and investigation into, the business, prospects, operations, property, financial and other condition and creditworthiness of the Loan Parties and their respective Subsidiaries, and
all applicable bank or other regulatory Laws relating to the transactions contemplated hereby, and made its own decision to enter into this Agreement and to extend credit to the Borrower and the other Loan Parties hereunder and (iv) it is
sophisticated with respect to decisions to make, acquire and/or hold commercial loans and to provide other facilities set forth herein, as may be applicable to such Lender, and either it, or the Person exercising discretion in making its
decision to make, acquire and/or hold such commercial loans or to provide such other facilities, is experienced in making, acquiring or holding such commercial loans or providing such other facilities. Each Lender also represents that it
will, independently and without reliance upon any Agent-Related Person and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not
taking action under this Agreement and the other Loan Documents, and to make such investigations as it deems necessary to inform itself as to the business, prospects, operations, property, financial and other condition and creditworthiness
of the Borrower and the other Loan Parties. Except for notices, reports and other documents expressly required to be furnished to the Lenders by any Agent herein, such Agent shall not have any duty or responsibility to provide any Lender
with any credit or other information concerning the business, prospects, operations, property, financial and other condition or creditworthiness of any of the Loan Parties or any of their respective Affiliates which may come into the
possession of any Agent-Related Person. Each Lender, by delivering its signature page to this Agreement on the Closing Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it
shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the
Administrative Agent or the Lenders on the Closing Date.
Section 9.07 Indemnification
of Agents. Whether or not the transactions contemplated hereby are consummated, each Lender shall, on a ratable basis based on such Lender’s Pro Rata Share of all the Facilities, indemnify upon demand each Agent-Related Person (to
the extent not reimbursed by or on behalf of any Loan Party and without limiting the obligation of any Loan Party to do so), and hold harmless each Agent-Related Person in each case from and against any and all Indemnified Liabilities
incurred by such Agent-Related Person (including, for the avoidance of doubt, any such Agent-Related Person in its capacity as L/C Issuer);
provided,
however,
that no Lender shall be liable for any Indemnified Liabilities incurred by an Agent-Related Person to the extent such Indemnified Liabilities are determined in a final, non-appealable judgment by a court of competent jurisdiction to have
resulted from such Agent-Related Person’s own gross negligence, bad faith or willful misconduct;
provided,
however, that no action taken in accordance with
the directions of the Required Lenders (or such other number or percentage of the Lenders as shall be required by the Loan Documents) shall be deemed to constitute gross negligence, bad faith or willful misconduct for purposes of this
Section 9.07;
provided,
further, that to the extent any L/C Issuer is entitled to indemnification under this
Section 9.07 solely in its capacity and role as an L/C Issuer, only the Revolving Credit Lenders shall be required to indemnify such L/C Issuer under this
Section
9.07 (which indemnity shall be provided by such Lenders based upon their respective Pro Rata Share of the Revolving Credit Facility). In the case of any investigation, litigation or proceeding giving rise to any Indemnified
Liabilities, this
Section 9.07 shall apply whether or not any such investigation, litigation or proceeding is brought by any Lender or any other Person. Without limiting the foregoing, each
Lender shall reimburse the Administrative Agent upon demand for its Pro Rata Share of any costs or out-of-pocket expenses (including the fees, disbursements and other charges of counsel) incurred by the Administrative Agent in connection
with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this
Agreement, any other Loan Document, or any document contemplated by or referred to herein, to the extent that the Administrative Agent is not reimbursed for such expenses by or on behalf of the Borrower;
provided
that such reimbursement by the Lenders shall not affect the Borrower’s continuing reimbursement obligations with respect thereto;
provided,
further, that
failure of any Lender to indemnify or reimburse the Administrative Agent shall not relieve any other Lender of its obligation in respect thereof. The undertaking in this
Section 9.07 shall
survive termination of the Aggregate Commitments, the payment of all other Obligations and the resignation or removal of the Administrative Agent.
Section 9.08 Agents in Their Individual Capacities. Any Agent and its Affiliates may make loans
to, issue letters of credit for the account of, accept deposits from, acquire Capital Stock in and generally engage in any kind of banking, trust, financial advisory, underwriting or other business with each of the Loan Parties and their
respective Affiliates as though it were not an Agent or an L/C Issuer hereunder and without notice to or consent of the Lenders. The Lenders acknowledge that, pursuant to such activities, an Agent or its Affiliates may receive information
regarding any Loan Party or its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and acknowledge that such Agent shall be under no obligation to provide such
information to them. With respect to its Loans, such Agent shall have the same rights and powers under this Agreement as any other Lender and may exercise such rights and powers as though it were not an Agent or an L/C Issuer, and the
terms “Lender” and “Lenders” include such Agent in its individual capacity (unless otherwise expressly indicated or unless the context otherwise requires).
Section 9.09 Successor
Agents.
(a) The Administrative Agent (which for purposes of this
Section 9.09
shall also apply to the Administrative Agent in its role as Collateral Agent) may resign at any time by giving 30 days’ prior written notice thereof to the Lenders and the Borrower, whether or not a successor Administrative Agent has been
appointed. If the Administrative Agent or a controlling Affiliate of the Administrative Agent is subject to an Agent-Related Distress Event, the Borrower may remove the Administrative Agent upon ten days’ written notice to the Lenders.
Upon any such resignation or removal, the Required Lenders shall promptly appoint a successor Administrative Agent, which shall be a bank with an office in New York, New York or an Affiliate of any such entity. If no successor
Administrative Agent shall have been so appointed and shall have accepted such appointment prior to the effective date of the resignation or removal, then the retiring Administrative Agent or, solely to the extent the retiring
Administrative Agent does not promptly so appoint a successor agent and the Borrower did not previously withhold its consent to a successor Administrative Agent appointed by the Required Lenders, the Borrower may, on behalf of the Lenders,
appoint a successor Administrative Agent, which shall be an entity engaged in the business of agenting syndicated loans with an office in New York, New York or an Affiliate of any such entity; provided that any such appointment by the
Borrower shall become effective at 5:00 p.m. (Chicago time), on the fifth Business Day after the Borrower has notified all Lenders of such appointment, so long as the Borrower has not received, by such time, written notice from Lenders
comprising Required Lenders objecting to such appointment
and appointing (effective immediately) a successor Administrative Agent acceptable to the Borrower. In either case, such appointment shall
be subject to the prior written approval of the Borrower (which approval may not be unreasonably withheld or delayed and shall not be required while an Event of Default under
Sections 8.01(a),
(f)
or
(g) has occurred and is continuing). Upon the acceptance of any appointment as Administrative Agent by a successor Administrative Agent, such successor Administrative Agent shall succeed to, and become vested with, all the
rights, powers, privileges and duties of the retiring or removed Administrative Agent. Upon the acceptance of appointment as Administrative Agent by a successor Administrative Agent, the retiring or removed Administrative Agent shall be
discharged from its duties and obligations under this Agreement and the other Loan Documents. Prior to any retiring or removed Administrative Agent’s resignation or removal hereunder as Administrative Agent, the retiring or removed
Administrative Agent shall take such action as may be reasonably necessary to assign to the successor Administrative Agent its rights as Administrative Agent under the Loan Documents.
(b) Notwithstanding clause (a) of this Section 9.09, in the
event no successor Administrative Agent shall have been so appointed and shall have accepted such appointment prior to the effective date of the resignation or removal
, the resignation or removal
shall nevertheless thereupon become effective, whereupon, on the date of effectiveness of such resignation or removal, (i) the retiring or removed Administrative
Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents; provided that, solely for
purposes of maintaining any security interest granted to the Administrative Agent under any Security Agreement for the benefit of the Secured Parties, the retiring or removed
Administrative
Agent shall continue to be vested with such security interest as collateral agent for the benefit of the Secured Parties, and continue to be entitled to the rights set forth in such Security Agreement and Loan Document, and, in the case
of any Collateral in the possession of the Administrative Agent, shall continue to hold such Collateral, in each case until such time as a successor Administrative Agent is appointed and accepts such appointment in accordance with this Section
9.09 (it being understood and agreed that the retiring or removed Administrative Agent shall have no duty or obligation to take any further action under any Security Agreement, including any action required to maintain the
perfection of any such security interest) and (ii) the Required Lenders shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Administrative Agent; provided that (A) all payments required to be made hereunder or under any
other Loan Document to the Administrative Agent for the account of any Person other than the Administrative Agent shall be made directly to such Person (but only to the extent that such Person shall have provided to the Borrower all
information customary or necessary in order to permit the making of such payment) and (B) all notices and other communications required or contemplated to be given
or made to the Administrative Agent shall directly be given or made to each Lender. Following the effectiveness of the Administrative Agent’s resignation or removal from its capacity as such, the provisions of this Article IX and
Section 10.04, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document, shall continue in effect for the benefit of such retiring or removed Administrative Agent, its sub-agents
and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring or removed Administrative Agent was acting as Administrative Agent and in respect of the matters referred to in
the proviso under clause (i) above.
Section 9.10 Administrative Agent May File Proofs of Claim. In case of the pendency of any
receivership, administrative receivership, judicial management, insolvency, liquidation, bankruptcy, reorganization (by way of voluntary arrangement, schemes of arrangement or otherwise), arrangement, adjustment, composition or other
judicial proceeding relative to any Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan or L/C Obligation shall then be due and payable as herein expressed or by declaration or otherwise and irrespective
of whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of
the Loans, L/C Obligations and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim
for the reasonable compensation, expenses, disbursements and advances of the Lenders and the Administrative Agent and their respective agents and counsel to the extent provided for herein and all other amounts due the Lenders and the
Administrative Agent under
Sections 2.03(h) and
(i),
2.09 and
10.04) allowed in such judicial proceeding; and
