Hasbro, Inc 8-K, filed Apr 14, 2023
Hasbro, Inc. (HAS)
8-K
2023-04-14
For: 2023-04-12
View Original
Added on
April 09, 2026
About this 8-K
Hasbro, Inc filed this 8-K on April 14, 2023, reporting on events of April 12, 2023.
Items reported
- Item 1.01: Entered into a material agreement
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): April 12, 2023
(Exact name of registrant as specified in its charter)
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(State or other jurisdiction
of incorporation or organization)
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(Commission
File Number)
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(I.R.S. Employer
Identification No.)
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(Address of Principal Executive Offices)
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(Zip Code)
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Registrant’s telephone number, including area code: (401 ) 431-8697
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following
provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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| Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
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Title of each class
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Trading
Symbol(s)
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Name of each exchange
on which registered
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The
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 or Rule 12b-2 of the Securities Exchange
Act of 1934.
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period provided pursuant to Section
13(a) of the Exchange Act. ☐
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Item 1.01
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Entry into a Material Definitive Agreement.
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On April 12, 2023, Hasbro, Inc. (the “Company”) and its subsidiary Hasbro SA entered into a First Amendment to the Second Amended and Restated Revolving
Credit Agreement (the “First Amendment to the Credit Agreement”) with Bank of America, N.A., as administrative agent, swing line lender, a letter of credit issuer and a lender and certain other financial institutions, as lenders and letter of
credit issuers (the “Credit Agreement”). The First Amendment to the Credit Agreement amends the Credit Agreement to replace the London InterBank Offered Rate “LIBOR” with the Secured Overnight Financing Rate “SOFR” as the interest rate benchmark.
On April 12, 2023, the Company also entered into a First Amendment to the Term Loan Agreement (the “First Amendment to the Term Loan Agreement”) with
Bank of America, N.A., as administrative agent, and certain financial institutions, as lenders (the “Term Loan Agreement”). The First Amendment to the Term Loan Agreement amends the Term Loan Agreement to replace the London InterBank Offered Rate
“LIBOR” with the Secured Overnight Financing Rate “SOFR” as the interest rate benchmark.
The foregoing descriptions of the First Amendment to the Credit Agreement and the First Amendment to the Term Loan Agreement do not purport to be
complete and are qualified in their entirety by reference to the full text of the First Amendment to the Credit Agreement and the full text of the First Amendment to the Term Loan Agreement which are filed as Exhibits 10.1 and 10.2, respectively,
and are incorporated herein by reference.
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Item 9.01
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Financial Statements and Exhibits.
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(d)
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Exhibits.
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Exhibit
Number
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Exhibit Description
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104
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Inline XBRL for the cover page of this Current Report on Form 8-K.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
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HASBRO, INC.
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By:
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/s/ Deborah Thomas
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Name: Deborah Thomas
Title: Executive Vice President and Chief Financial Officer
(Duly Authorized Officer and Principal Financial Officer)
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Date: April 14, 2023
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Exhibit 10.1
EXECUTION VERSION
FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT
THIS FIRST AMENDMENT TO SECOND AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT (this “Agreement”), dated as of April 12, 2023 (the “First Amendment Effective Date”), is entered
into among Hasbro, Inc., a Rhode Island corporation (the “Company”), Hasbro SA, a corporation organized under the laws of Switzerland (the “Designated Borrower” and, together with the Company, the “Borrowers”), the Lenders and
L/C Issuers party hereto and Bank of America, N.A., as Administrative Agent (the “Administrative Agent”). All capitalized terms used herein and not otherwise defined herein shall have the meanings given to such terms in the Existing
Revolving Credit Agreement (as defined below) or the Amended Revolving Credit Agreement (as defined below), as applicable.
RECITALS
WHEREAS, the Borrowers, the Lenders, the L/C Issuers and the Administrative Agent are party to that certain Second Amended and Restated Revolving Credit Agreement, dated as of September 20, 2019
(as amended, restated, amended and restated, extended, supplemented, or otherwise modified in writing from time to time prior to the First Amendment Effective Date, the “Existing Revolving Credit Agreement” and, the Existing Revolving Credit
Agreement as amended by this Agreement, the “Amended Revolving Credit Agreement”); and
WHEREAS, the Borrowers have requested that the Lenders and the L/C Issuers amend the Existing Revolving Credit Agreement as set forth below.
NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Amendments to the Existing Revolving Credit Agreement. (a) Subject to the satisfaction of the conditions precedent set forth in Section 2 hereof:
(i) The Existing Revolving Credit Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text or stricken text) and to add the single-underlined text (indicated textually in the same manner as the following example: single-underlined text or single-underlined text) as set forth in the blackline attached as Annex A hereto (the Existing
Revolving Credit Agreement, as so amended and restated, the “Amended Revolving Credit Agreement”); and
(ii) Exhibit A to the Existing Revolving Credit Agreement is hereby amended and restated in its entirety to read in the form attached as Annex B attached hereto.
(b) Except as set forth in Section 1(a)(ii) above, all schedules and exhibits to the Existing Revolving Credit Agreement (as amended or otherwise modified in
writing prior to the First Amendment Effective Date) shall not be modified or otherwise affected hereby.
(c) The parties hereto agree that, on and as of the First Amendment Effective Date, all obligations of the Loan Parties outstanding under the Existing Revolving Credit
Agreement, each Subsidiary Guaranty (if any) and the other Loan Documents (the “Obligations”) on and as of the First Amendment Effective Date shall in all respects be continuing and shall be deemed to be Obligations pursuant to the Amended
Revolving Credit Agreement, such Subsidiary Guaranty or such other Loan Document, as applicable. The Amended Revolving Credit Agreement is not a
novation of the Existing Revolving Credit Agreement. This Agreement shall not by implication or otherwise limit, impair, constitute a waiver of, or otherwise affect the rights and remedies of the
Administrative Agent or any Lender under the Existing Revolving Credit Agreement, each Subsidiary Guaranty (if any) or any other Loan Document, and except as set forth herein, shall not alter, modify, amend, or in any way affect any of the terms,
conditions, obligations, covenants, or agreements contained in the Existing Revolving Credit Agreement, each Subsidiary Guaranty (if any) or any other Loan Document.
2. Conditions Precedent. This Agreement shall be effective on the First Amendment Effective Date upon the satisfaction (or, except with respect to Section 2(a) hereof,
waiver) of the following conditions precedent:
(a) Receipt by the Administrative Agent of counterparts of this Agreement duly executed by each Borrower, each of the Lenders and the L/C Issuers party to the Existing
Revolving Credit Agreement on the First Amendment Effective Date and the Administrative Agent.
(b) The Company shall have paid (or caused to be paid), to the extent invoiced and received by the Company at least two Business Days prior to the First Amendment
Effective Date (or such later date as the Company may reasonably agree), all legal fees and expenses of the Administrative Agent required to be paid pursuant to the terms of the Amended Revolving Credit Agreement.
3. Miscellaneous.
(a) The Amended Revolving Credit Agreement, each Subsidiary Guaranty (if any) and the other Loan Documents, and the obligations of each Loan Party thereunder, as amended
hereby, are hereby ratified and confirmed and shall remain in full force and effect according to their terms. This Agreement is a Loan Document.
(b) Each Borrower hereby represents and warrants as follows:
(i) Such Borrower has all requisite power and authority to execute, deliver and perform its obligations under this Agreement.
(ii) The execution, delivery and performance by such Borrower of this Agreement, (x) has been duly authorized by all necessary corporate or other organizational action,
and (y) does not and will not (a) contravene the terms of such Borrower’s Organization Documents; (b) conflict with or result in any breach or contravention of, or the creation of any material Lien under any Contractual Obligation to which such
Borrower is a party or affecting such Borrower or the properties of such Borrower or any of its Subsidiaries; or (c) violate any Law or any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Borrower
or its property is subject, except, in the cases of clauses (b) and (c) to the extent such conflict, breach, contravention, creation or violation would not reasonably be expected to have a Material Adverse Effect.
(iii) 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 the execution, delivery or performance by, or enforcement against, such Borrower of this Agreement other than (i) those such as have been obtained
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or made and are in full force and effect, (ii) any filings of this Agreement with the SEC required to be made after the date hereof and (iii) such approvals, consents, exemptions, authorizations,
actions or notices the failure of which to obtain or make would not reasonably be expected to have a Material Adverse Effect.
(iv) This Agreement has been duly executed and delivered by such Borrower. This Agreement constitutes a legal, valid and binding obligation of such Borrower, enforceable
against such Borrower in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights or remedies generally and by general principles
of equity and an implied covenant of good faith and fair dealing.
(c) Each Borrower (i) acknowledges and consents to all of the terms and conditions of this Agreement, (ii) affirms all of its obligations under the Loan Documents, as
amended by this Agreement, and (iii) agrees that this Agreement and all documents executed in connection herewith do not operate to reduce or discharge its obligations under the Loan Documents.
(d) This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page of this Agreement by telecopy or other electronic imaging means (e.g. “pdf” or “tif”) shall be effective as delivery of a manually
executed counterpart of this Agreement.
(e) If any provision of this Agreement is held to be illegal, invalid or unenforceable, (i) the legality, validity and enforceability of the remaining provisions of this
Agreement shall not be affected or impaired thereby and (ii) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as
possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
(f) THIS AGREEMENT AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT (EXCEPT, AS TO ANY OTHER LOAN DOCUMENT, AS EXPRESSLY SET FORTH THEREIN) AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
YORK.
(g) The terms of Sections 10.14 and 10.15 of the Amended Revolving Credit Agreement with respect to submission to jurisdiction, waiver of venue, consent to service of
process and waiver of jury trial are incorporated herein by reference, mutatis mutandis, and the parties hereto agree to such terms.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.
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COMPANY:
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HASBRO, INC.
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/s/ Deborah Thomas | |||
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Name:
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Deboarah Thomas
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Title:
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EVP & CFO
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DESIGNATED BORROWER:
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HASBRO SA
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/s/ Julia Runnacles | |||
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Name:
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Julia Runnacles
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Title:
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General Manager and Chair of the Board of Directors
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FIRST AMENDMENT TO SECOND A&R REVOLVING CREDIT AGREEMENT
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ADMINISTRATIVE AGENT:
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BANK OF AMERICA, N.A.,
as Administrative Agent
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By: /s/ Mary Lawrence
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Name:
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Mary Lawrence
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Title:
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Vice President
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FIRST AMENDMENT TO SECOND A&R REVOLVING CREDIT AGREEMENT
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Bank of America, N.A.,
as a Lender and L/C Issuer |
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| By: |
/s/ J. Casey Cosgrove | |||
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Name:
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J. Casey Cosgrove
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Title:
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Managing Director
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FIRST AMENDMENT TO SECOND A&R REVOLVING CREDIT AGREEMENT
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CITIBANK, N.A.,
as a Lender and L/C Issuer
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| By: |
/s/ Anita Philip | |||
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Name:
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Anita Philip
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Title:
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Vice President
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FIRST AMENDMENT TO SECOND A&R REVOLVING CREDIT AGREEMENT
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Citizens Bank N.A.,
as a Lender and L/C Issuer
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| By: |
/s/ Michael Makaitis | |||
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Name:
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Michael Makaitis
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Title:
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Senior Vice President
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FIRST AMENDMENT TO SECOND A&R REVOLVING CREDIT AGREEMENT
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JPMORGAN CHASE BANK, N.A.,
as a Lender and L/C Issuer
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| By: |
/s/ Peter Christensen | |||
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Name:
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Peter Christensen
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Title:
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Executive Director
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FIRST AMENDMENT TO SECOND A&R REVOLVING CREDIT AGREEMENT
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The Bank of Nova Scotia,
as a Lender
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| By: |
/s/ Catherine Jones | |||
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Name:
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Catherine Jones
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Title:
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Managing Director
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FIRST AMENDMENT TO SECOND A&R REVOLVING CREDIT AGREEMENT
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MUFG BANK, LTD., as a Lender
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/s/ Reema Sharma | |||
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Name:
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Reema Sharma
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Title:
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Authorized Signatory
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FIRST AMENDMENT TO SECOND A&R REVOLVING CREDIT AGREEMENT
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TRUIST BANK, (formerly known as Sun Trust Bank),
as a Lender
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/s/ Steve Curran | |||
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Name:
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Steve Curran
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Title:
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Director
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FIRST AMENDMENT TO SECOND A&R REVOLVING CREDIT AGREEMENT
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Australia and New Zealand Banking Group Limited,
as a Lender
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| By: |
/s/ Wendy Tso | |||
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Name:
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Wendy Tso
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Title:
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Director
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FIRST AMENDMENT TO SECOND A&R REVOLVING CREDIT AGREEMENT
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BANCO BILBAO VIZCAYA ARGENTARIA, S.A. NEW YORK BRANCH,
as a Lender
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| By: | /s/ Brian Crowley | |||
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Name:
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Brian Crowley
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Title:
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Managing Director
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| By: |
/s/ Armen Semizian |
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| Name: |
Armen Semizian | |||
| Title: | Executive Director | |||
FIRST AMENDMENT TO SECOND A&R REVOLVING CREDIT AGREEMENT
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The Huntington National Bank,
as a Lender
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| By: |
/s/ Michael Kiss |
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Name:
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Michael Kiss
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Title:
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Senior Vice President
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FIRST AMENDMENT TO SECOND A&R REVOLVING CREDIT AGREEMENT
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Sumitomo Mitsui Banking Corporation,
as a Lender
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| By: |
/s/ Jun Ashley |
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Name:
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Jun Ashley
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Title:
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Director
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FIRST AMENDMENT TO SECOND A&R REVOLVING CREDIT AGREEMENT
Annex A
Amended Credit Agreement
[see attached]
Published CUSIP Number: 41805XAJ7
41805XAK4
SECOND AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
Dated as of September 20, 2019
among
HASBRO, INC.,
and
HASBRO SA
as Borrowers,
BANK OF AMERICA, N.A.,
as Administrative Agent, Swing Line Lender
and an L/C Issuer,
The Other L/C Issuers Party Hereto,
and
The Lenders Party Hereto
CITIBANK, N.A.,
CITIZENS BANK, N.A.
and JPMORGAN CHASE BANK, N.A.,
as Co-Syndication Agents
and
BOFA SECURITIES, INC.,
CITIBANK, N.A.,
CITIZENS BANK, N.A.
and JPMORGAN CHASE BANK, N.A.,
as Joint Lead Arrangers and Bookrunners
TABLE OF CONTENTS
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Page
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ARTICLE I.
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DEFINITIONS AND ACCOUNTING TERMS
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1
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1.01.
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Defined Terms
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1
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1.02.
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Other Interpretive Provisions
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32
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1.03.
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Accounting Terms
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33
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1.04.
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Rounding
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33
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1.05.
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Exchange Rates; Currency Equivalents
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33
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1.06.
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Additional Alternative Currencies
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34
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1.07.
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Change of Currency
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35
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1.08.
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Times of Day
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35
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1.09.
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Letter of Credit Amounts
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35
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1.10.
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Interest Rates
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35
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ARTICLE II.
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THE COMMITMENTS AND CREDIT EXTENSIONS
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36
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2.01.
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Committed Loans
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36
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2.02.
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Borrowings, Conversions and Continuations of Committed Loans
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36
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2.03.
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[Intentionally Omitted]
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39
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2.04.
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Letters of Credit
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39
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2.05.
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Swing Line Loans
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49
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2.06.
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Prepayments
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51
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2.07.
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Termination or Reduction of Commitments
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52
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2.08.
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Repayment of Loans
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53
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2.09.
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Interest
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2.10.
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Fees
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2.11.
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Computation of Interest and Fees
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55
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2.12.
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Evidence of Debt
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55
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2.13.
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Payments Generally; Administrative Agent’s Clawback
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56
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2.14.
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Sharing of Payments by Lenders
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58
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2.15.
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Designated Borrower
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59
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2.16.
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Increase in Commitments
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59
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2.17.
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Funding
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60
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2.18.
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Cash Collateral
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61
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2.19.
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Defaulting Lenders
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62
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2.20.
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Extension of Maturity Date
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64
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ARTICLE III.
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TAXES, YIELD PROTECTION AND ILLEGALITU
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66
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3.01.
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Taxes
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66
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3.02.
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Illegality
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71
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3.03.
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Imability to Determine Rates
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71
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3.04.
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Increases Costs
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74
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3.05.
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Compensation for Losses
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76
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3.06.
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Replacement of Lenders
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76
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3.07.
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Matters Applicable to All Requests for Compensation
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76
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i
TABLE OF CONTENTS
(continued)
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Page
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3.08.
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Survival
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78
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ARTICLE IV.
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CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
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78
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4.01.
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Conditions Precedent to Effectiveness
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78
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4.02.
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Conditions Precedent to all Credit Extensions
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79
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4.03.
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Additional Conditions Precedent to Additional Commitment Availability Date
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80
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ARTICLE V.
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REPRESENTATIONS AND WARRANTIES
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82
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5.01.
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Existence, Qualification and Power
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82
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5.02.
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Authorization; No Contravention
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82
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50.3.
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Governmental Authorization; Other Consents
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83
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5.04.
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Binding Effect
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83
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5.05.
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Financial Statements; No Material Adverse Effect
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83
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5.06.
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Litigation
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83
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5.07.
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No Default
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83
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5.08.
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Ownership of Property; Liens
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83
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5.09.
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Environmental Compliance
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84
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5.10.
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Taxes
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84
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5.11.
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[Intentionally Omitted]
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84
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5.12.
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Subsidiaries
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84
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5.13.
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Margin Regulations; Investment Company Act
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84
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5.14.
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Disclosure
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84
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5.15.
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[Intentionally Omitted]
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85
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5.16.
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Foreign Assets Control Regulations, Etc
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85
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5.17.
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OFAC
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85
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5.18.
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Anti-Corruption Laws
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85
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5.19.
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EEA Financial Institution
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85
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ARTICLE VI.
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AFFIRMATIVE COVENANTS
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85
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6.01.
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Financial Statements
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86
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6.02.
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Certificates; Other Information
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86
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6.03.
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Notices
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88
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6.04.
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Payment of Obligations
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88
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6.05.
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Preservation of Existence, Etc
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88
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6.06.
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Maintenance of Properties
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88
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6.07.
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Maintenance of Insurance
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88
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6.08.
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Compliance with Laws
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89
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6.09.
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Books and Records
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89
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6.10.
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Inspection Rights
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89
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6.11.
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Use of Proceeds
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89
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ii
TABLE OF CONTENTS
(continued)
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Page
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6.12.
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Addition of Guarantors
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89
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6.13.
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Anti-Corruption Laws
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89
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ARTICLE VII.
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NEGATIVE COVENANTS
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90
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7.01.
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Liens
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90
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7.02.
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Indebtedness
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92
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7.03.
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Fundamental Changes
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93
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7.04.
|
[Intentionally Omitted]
|
94
|
|
|
7.05.
|
Financial Covenants
|
94
|
|
|
7.06.
|
Sanctions
|
95
|
|
|
7.07.
|
Anti-Corruption Laws
|
96
|
|
|
ARTICLE VIII.
|
EVENTS OF DEFAULT AND REMEDIES
|
96
|
|
|
8.01.
|
Events of Default
|
96
|
|
|
8.02.
|
Remedies Upon Event of Default
|
98
|
|
|
8.03.
|
Application of Funds
|
98
|
|
|
ARTICLE IX.
|
AGENT
|
99
|
|
|
9.01.
|
Appointment and Authority
|
99
|
|
|
9.02.
|
Rights as a Lender
|
99
|
|
|
9.03.
|
Exculpatory Provisions
|
100
|
|
|
9.04.
|
Reliance by Administrative Agent
|
101
|
|
|
9.05.
|
Delegation of Duties
|
101
|
|
|
9.06/
|
Resignation of Administrative Agent
|
101
|
|
|
9.07.
|
Non-Reliance on Administrative Agent and Other Lenders
|
103
|
|
|
9.08.
|
No Other Duties, Etc
|
103
|
|
|
9.09.
|
Administrative Agent May File Proofs of Claim
|
103
|
|
|
9.10.
|
Guaranty Matters
|
104
|
|
|
9.11.
|
Certain ERISA Matters
|
104
|
|
|
9.12.
|
Recovery of Erroneous Payments
|
104
|
|
|
ARTICLE X.
|
MISCELLANEOUS
|
106
|
|
|
10.01.
|
Amendments, Etc
|
106
|
|
|
10.02.
|
Notices; Effectiveness; Electronic Communication
|
108
|
|
|
10.03.
|
No Waiver; Cumulative Remedies
|
110
|
|
|
10.04.
|
Expenses; Indemnity; Damage Waiver
|
110
|
|
|
10.05.
|
Payments Set Aside
|
113
|
|
|
10.06.
|
Successors and Assigns
|
113
|
|
|
10.07.
|
Treatment of Certain Information; Confidentiality
|
120
|
|
|
10.08.
|
Right of Setoff
|
121
|
|
|
10.09.
|
Interest Rate Limitation
|
121
|
iii
TABLE OF CONTENTS
(continued)
|
Page
|
|||
|
10.10.
|
Counterparts; Integration; Effectiveness
|
122
|
|
|
10.11.
|
Survival of Representations and Warranties
|
122
|
|
|
10.12.
|
Severability
|
122
|
|
|
10.13.
|
Replacement of Lenders
|
122
|
|
|
10.14.
|
Governing Law; Jurisdiction; Etc
|
124
|
|
|
10.15.
|
Waiver of Jury Trial
|
125
|
|
|
10.16.
|
No Advisory or Fiduciary Responsibility
|
125
|
|
|
10.17.
|
Electronic Execution of Assignments and Certain Other Documents
|
126
|
|
|
10.18.
|
USA PATRIOT Act Notice
|
126
|
|
|
10.19.
|
Judgment Currency
|
127
|
|
|
10.20.
|
Acknowledgement and Consent to Bail-In of EEA Financial Institutions
|
127
|
|
|
10.21.
|
Existing Credit Agreement Amended and Restated
|
128
|
|
|
10.22.
|
Acknowledgement Regarding Any Supported QFCs
|
128
|
iv
SCHEDULES
|
1.01
|
Existing Letters of Credit
|
|
|
1.03
|
Indicative Terms of Permitted Receivables Transactions
|
|
|
2.01A
|
Commitments and Applicable Percentages
|
|
|
2.01B
|
Letter of Credit Commitments
|
|
|
5.06(b)
|
Litigation
|
|
|
5.08
|
Ownership of Property; Liens
|
|
|
5.09
|
Environmental Matters
|
|
|
5.10
|
Taxes
|
|
|
5.12
|
Subsidiaries
|
|
|
6.08
|
Compliance With Laws
|
|
|
7.01(c)
|
Certain Liens
|
|
|
7.02
|
Existing Indebtedness
|
|
|
10.02
|
Administrative Agent’s Office; Certain Addresses for Notices
|
|
| EXHIBITS | A |
Form of Committed Loan Notice |
| B |
Form of Swing Line Loan Notice | |
| C-1 |
Form of Note | |
| C-2 |
Form of Swing Line Note | |
| D |
Form of Compliance Certificate | |
| E |
Form of Assignment and Assumption | |
| F |
Form of Company Guaranty | |
| G |
Form of Subsidiary Guaranty | |
| H |
Forms of U.S. Tax Compliance Certificates | |
| I |
Form of Solvency Certificate | |
| J |
Form of Supplement | |
v
SECOND AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
This SECOND AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT (“Agreement”) is entered into as of September 20, 2019, among HASBRO, INC., a Rhode Island
corporation (the “Company”), HASBRO SA, a corporation organized under the laws of Switzerland and wholly owned indirect subsidiary of the Company (the “Designated Borrower” and, together with the Company, the “Borrowers” and, each a “Borrower”), each lender from time to time party hereto (collectively, the “Lenders” and individually, a “Lender”), BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and an
L/C Issuer, and the other L/C Issuers from time to time party hereto.
WHEREAS, pursuant to that certain Amended and Restated Revolving Credit Agreement, dated as of November 26, 2018 (as amended, supplemented or otherwise modified and in effect as of
the date hereof, the “Existing Credit Agreement”) by and among the Borrowers, the Administrative Agent, and certain other parties thereto, the lenders party thereto provided loans and other extensions of credit to the Borrowers on the terms
and conditions set forth therein; and
WHEREAS, the Lenders are willing to amend and restate the Existing Credit Agreement in its entirety, and the Lenders are willing to make loans and other extensions of credit to the
Borrowers on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
1.01. Defined Terms. As used in this Agreement, the following
terms shall have the meanings set forth below:
“Additional Commitment” means each Lender’s commitment hereunder to extend credit to the Borrowers in the amount set forth opposite the name of such Lender on Schedule 2.01A under
the caption “Additional Commitment”.
“Additional Commitment Availability Date” means the first date on which all the conditions precedent in Section 4.03 are satisfied or waived in accordance with Section 10.01.
“Additional Commitment Lender” has the meaning specified in Section 2.20(d).
“Additional Commitment Termination Date” means the earliest to occur of (i) the date on which the EOne Acquisition Agreement is terminated in accordance with
its terms and such termination has either been publicly announced by a party thereto or the Administrative Agent has received written notice thereof from the Company (which notice the Company agrees to provide upon such termination) and (ii)
December 31, 2019, provided, that, to the extent that the “Outside Date” set forth and defined in the EOne Acquisition Agreement is extended (in accordance with such definition as in effect on August
22, 2019) by a period of not more than 90 days (as may also be extended by no more than an additional 10 Business Days in respect of the
Marketing Period (as defined in the EOne Acquisition Agreement)) in the aggregate, then the date first referred to in this clause (ii) shall be automatically extended by an equal
period; provided, further, that the Company shall notify the Administrative Agent upon any such extension.
“Additional Lender” has the meaning specified in Section 2.16.
“Adjustment” has the meaning specified in Section 3.03(b).
“Administrative Agent” means Bank of America in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent.
“Administrative Agent’s Office” means, with respect to any currency, the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.02
with respect to such currency, or such other address or account with respect to such currency as the Administrative Agent may from time to time notify to the Company and the Lenders.
“Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the Administrative Agent.
“Affiliate” means, with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified.
“Aggregate Commitments” means the Commitments of all the Lenders (including any Defaulting Lenders).
“Agreement” has the meaning specified in the introductory paragraph hereto.
“Agreement Currency” has the meaning specified in Section 10.19.
“Alternative Currency” means each of Australian Dollars, Canadian Dollars, Euro, New Zealand Dollars, Sterling, and each other currency (other than Dollars) that is approved in accordance with Section 1.06.
“Alternative Currency Equivalent” means, at any time, with respect to any amount denominated in Dollars, the equivalent amount thereof in the applicable Alternative Currency
as reasonably determined by the Administrative Agent or the applicable L/C Issuer, as the case may be, at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of such Alternative
Currency with Dollars.
“Alternative Currency Scheduled Unavailability Date” has the meaning specified in Section 3.03(c)(ii).
“Alternative Currency Successor Rate” has the meaning specified in Section 3.03(c).
2
“AML Legislation” means the USA PATRIOT Act, Title III of Pub. L. 107-56 (signed into law October 26, 2001) and the Proceeds of Crime
(Money Laundering) and Terrorist Financing Act (Canada).
“Applicable Authority” means with respect to any Alternative Currency, the applicable administrator for the Relevant Rate for such Alternative
Currency or any Governmental Authority having jurisdiction over the Administrative Agent or such administrator.
“Applicable Percentage” means with respect to any Lender at any time, the percentage (carried out to the ninth decimal place) of the Aggregate Commitments
represented by such Lender’s Commitment at such time, subject to adjustment as provided in Section 2.19. 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 or if the Aggregate Commitments have expired, then the Applicable Percentage of each Lender shall be determined based on the Applicable Percentage of such Lender most
recently in effect, giving effect to any subsequent assignments and to any Lender’s status as a Defaulting Lender at the time of determination.
“Applicable Rate” means, (A) prior to the Additional Commitment Availability Date, the percentages per annum set forth in the grid below under the caption “Applicable Rate –
Prior to Additional Commitment Availability Date” and (B) on and after the Additional Commitment Availability Date, the percentages per annum set forth in the grid below under the caption “Applicable Rate – From Additional Commitment Availability
Date”, in each case, based upon the more favorable to the Borrowers of (a) the Consolidated Total Leverage Ratio and (b) the Debt Rating set forth in such applicable grid:
|
(A) Applicable Rate – Prior to Additional Commitment Availability Date
|
|||||
|
Pricing Level
|
Consolidated Total
Leverage Ratio
|
Debt Rating
(S&P/Moody’s/Fitch)
|
Commitment Fee
|
Letters of Credit
|
Base
Rate
|
|
I
|
Greater than or equal to 3.25x
|
≤ BBB-/Baa3/BBB-
|
0.175%
|
1.500%
|
0.500%
|
|
II
|
Less than 3.25x but greater than or equal to 2.25x
|
BBB/Baa2/BBB
|
0.125%
|
1.250%
|
0.250%
|
|
III
|
Less than 2.25x but greater than or equal to 1.25x
|
BBB+/Baa1/BBB+
|
0.100%
|
1.125%
|
0.125%
|
3
|
IV
|
Less than 1.25x but greater than or equal to 0.50x
|
A-/A3/A-
|
0.085%
|
1.000%
|
0.000%
|
|
V
|
Less than
0.50x
|
≥ A/A2/A
|
0.070%
|
0.875%
|
0.000%
|
|
(B) Applicable Rate – From Additional Commitment Availability Date
|
|||||
|
Pricing Level
|
Consolidated Total
Leverage Ratio
|
Debt Rating
(S&P/Moody’s/Fitch)
|
Commitment Fee
|
Letters of Credit
|
Base
Rate
|
|
I
|
Greater than 4.00x
|
≤ BB+/Ba1/BB+
|
0.250%
|
1.625%
|
0.625%
|
|
II
|
Less than or equal to 4.00x but greater than 3.25x
|
BBB-/Baa3/BBB-
|
0.175%
|
1.375%
|
0.375%
|
|
III
|
Less than or equal to 3.25x but greater than 2.25x
|
BBB/Baa2/BBB
|
0.125%
|
1.250%
|
0.250%
|
|
IV
|
Less than or equal to 2.25x but greater than 1.25x
|
BBB+/Baa1/BBB+
|
0.100%
|
1.125%
|
0.125%
|
|
V
|
Less than or equal to 1.25x but greater than 0.50x
|
A-/A3/A-
|
0.085%
|
1.000%
|
0.000%
|
| VI | Less than or equal to 0.50x |
≥ A/A2/A
|
0.070% | 0.875% | 0.000% |
4
As used herein, “Debt Rating” means, as of any date of determination, the rating as determined by at least two of Fitch, S&P and Moody’s (collectively, the “Debt Ratings”) of the Company’s
non-credit-enhanced, senior unsecured long-term debt; provided that (a) if two Debt Ratings are obtained and the respective Debt Ratings issued by the foregoing rating agencies differ by one level, then the Pricing Level of the higher Debt
Rating shall apply (with the Debt Rating for Pricing Level V (or Pricing Level VI, on and after the Additional Commitment Availability Date) being the highest and the Debt Rating for Pricing Level I being the lowest) or, if there is a split in the
Debt Ratings of more than one level, then the Pricing Level that is one level higher than the Pricing Level of the lower Debt Rating shall apply; and (b) if three Debt Ratings are obtained and the respective Debt Ratings issued by two of the
foregoing rating agencies are at the same level and the other Debt Rating is higher or lower than these two same ratings, the Pricing Level corresponding to the two same ratings shall apply, or, if each of the three Debt Ratings falls within
different levels, then the Pricing Level that corresponds to the Debt Rating that is in between the highest and lowest of such three Debt Ratings shall apply.
Initially, the Applicable Rate shall be determined based upon the Debt Rating specified in the certificate delivered pursuant to Section 4.01(a)(v). Thereafter, each change in the Applicable Rate (x) resulting from a change in the Debt Rating shall be effective, in the case of an upgrade, during the period commencing on the earlier of the date of the public announcement thereof or
delivery by the Company to the Administrative Agent of notice thereof pursuant to Section 6.03(c) and ending on the date immediately preceding the effective date of the next such change and, in the case of a downgrade, during the period
commencing on the earlier of the date of the public announcement thereof or delivery by the Company to the Administrative Agent of notice thereof and ending on the date immediately preceding the effective date of the next such change and (y)
resulting from a change in the Consolidated Total Leverage Ratio shall be effective upon the Administrative Agent’s receipt of a Compliance Certificate delivered pursuant to Section 6.02(a) evidencing such change.
If the rating system of Moody’s, S&P or Fitch shall change, or if any such rating agency shall cease to be in the business of rating corporate debt obligations, the Company and the Lenders shall
negotiate in good faith to amend this definition to reflect such changed rating system or the unavailability of ratings from such rating agency and, pending the effectiveness of any such amendment, the Debt Rating Component of the Applicable Rate
shall be determined by reference to the rating most recently in effect prior to such change or cessation.
“Applicable Time” means, with respect to any borrowings and payments in any Alternative Currency, the local time in the place of settlement for such Alternative Currency as
may be determined in good faith by the Administrative Agent or the applicable L/C Issuer, as the case may be, to be necessary for timely settlement on the relevant date in accordance with normal banking procedures in the place of payment.
“Approved Fund” means any Fund (i) that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that
administers or manages a Lender and (ii) that has a credit rating equal to or higher than that of the related Lender.
5
“Assignee Group” means two or more Eligible Assignees that are Affiliates of one another or two or more Approved Funds managed by the same investment advisor.
“Assignment and Assumption” means an assignment and assumption entered into by a Lender and an assignee (with the consent of any party whose consent is required
by Section 10.06(b)), and accepted by the Administrative Agent, in substantially the form of Exhibit E or any other form (including electronic documentation generated by MarkitClear or other
electronic platform) approved by the Administrative Agent and the Company.
“Attributable Indebtedness” means, at any time, the amount of obligations outstanding at such time under the legal documents entered into as part of a Permitted Receivables
Securitization Facility on any date of determination that would be characterized as principal if such Permitted Receivables Securitization Facility were structured as a secured lending transaction rather than as a purchase.
“Audited Financial Statements” means the audited consolidated balance sheet of the Company and its Subsidiaries for the fiscal year ended December 30, 2018, and the related
consolidated statements of operations and cash flows for such fiscal year of the Company and its Subsidiaries, including the notes thereto.
“Australian Dollars” means the lawful currency of Australia.
“Availability Period” means the period from and including the Effective Date to the earliest of (a) the Maturity Date, (b) the date of termination of the
Aggregate Commitments pursuant to Section 2.07, and (c) the date of termination of the commitment of each Lender to make Loans and of the obligation of the L/C Issuers to make L/C Credit Extensions
pursuant to Section 8.02; provided that, the Availability Period for the Additional Commitments shall commence on the Additional Commitment Availability Date.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial
Institution.
“Bail-In Legislation” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the
European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.
“Bank of America” means Bank of America, N.A. and its successors.
“Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus 1/2 of 1%, (b) the rate of interest in effect
for such day as publicly announced from time to time by Bank of America as its “prime rate,” and (c) the Eurocurrency Rate for a one month Interest PeriodTerm SOFR plus 1.00%; and if the Base Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement. The “prime rate” is a rate set by Bank
of America based upon various factors including Bank of America’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such
announced rate. Any change in such prime rate announced by Bank of America shall take effect at the opening of business on
6
the day specified in the public announcement of such change. If the Base Rate is being used as an alternate rate of interest pursuant to Section 3.03 hereof, then the Base Rate shall be the
greater of clauses (a) and (b) above and shall be determined without reference to clause (c) above.
“Base Rate Committed Loan” means a Committed Loan that is a Base Rate Loan.
“Base Rate Loan” means a Loan that bears interest based on the Base Rate. All Base Rate Loans shall be denominated in Dollars.
“BBSY” has the meaning specified in the definition of “Term Benchmark Rate.”
“Beneficial Ownership Certification” means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
“Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in and subject to
Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.
“BHC Act Affiliate” has the meaning specified in Section 10.22.
“BKBM” has the meaning specified in the definition of “Term Benchmark Rate.”
“Borrower” and “Borrowers” each has the meaning specified in the introductory paragraph hereto.
“Borrower Materials” has the meaning specified in Section 6.02.
“Borrowing” means a Committed Borrowing or a Swing Line Borrowing, as the context may require.
“Bridge Facility” means the 364-Day Bridge Facility contemplated by that certain Commitment Letter, dated August 22, 2019, among the Company, BofA Securities Inc. and Bank of
America, N.A., and any definitive credit documentation evidencing such facility.
“Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in the
state where the Administrative Agent’s Office is located and New York, New York and:
(a) [Intentionally Omitted];
(b) [Intentionally Omitted];
7
(c) if such day relates to any interest rate settings as to a EurocurrencyTerm Benchmark Rate Loan denominated in a currency other than Dollars or Euro, means any such day on which dealings
in deposits in the relevant currency are conducted by and between banks in the London or other applicable offshore interbank market for such currency; and
(d) if such day relates to any fundings, disbursements, settlements and payments in a currency other than Dollars or Euro in respect
of a EurocurrencyTerm Benchmark Rate Loan denominated in a currency other than Dollars
or Euro, or any other dealings in any currency other than Dollars or Euro to be carried out pursuant to this Agreement in respect of any such EurocurrencyTerm Benchmark Rate Loan (other than any interest rate settings), means any such day on which banks are open for foreign exchange business in the principal financial center
of the country of such currency.
“Capital Stock” means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent
ownership interests in a Person (other than a corporation) and any and all warrants, rights or options to purchase any of the foregoing.
“Capitalized Leases” means leases under which the Company or any of its Subsidiaries is the lessee or obligor, the discounted future rental payment obligations
under which leases are required to be capitalized on the balance sheet of the lessee or obligor in accordance with GAAP, or, as applicable, as set forth in Section 1.03(b).
“Cash Collateralize” means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of one or more of the L/C Issuers or the Lenders, as collateral
for L/C Obligations or obligations of the Lenders to fund participations in respect of L/C Obligations, cash or deposit account balances or, if the Administrative Agent and the L/C Issuers shall agree in their sole discretion, other credit support,
in each case pursuant to documentation in form and substance satisfactory to the Administrative Agent and the L/C Issuers. “Cash Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral
and other credit support.
“Change in Law” means, as to any Lender, the occurrence, after the date of this Agreement (or, if later, the date such Lender becomes a Lender), of any of the following: (a)
the adoption or taking effect of any law, rule, regulation or treaty applicable to such Lender, (b) any change in any law, rule, regulation or treaty applicable to such Lender or in the administration, interpretation, implementation or application
thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive applicable to such Lender (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding
anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and
8
Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith or in the implementation thereof and applicable to such Lender, and (y) all
requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case
pursuant to Basel III, and applicable to such Lender, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted, issued or implemented.
“Change of Control” means an event or series of events by which:
(a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934,
as amended, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as
defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, as amended, except that a person or group shall be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire, whether
such right is exercisable immediately or only after the passage of time (such right, an “option right”)), directly or indirectly, of more than 50% or more of the equity securities of the Company entitled to vote for members of the board of
directors or equivalent governing body of the Company on a fully-diluted basis (and taking into account all such securities that such person or group has the right to acquire pursuant to any option right); or
(b) during any period of 12 consecutive months, a majority of the members of the board of directors or other equivalent
governing body of the Company cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body was
approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (iii) whose election or nomination to that board or other
equivalent governing body was approved by individuals referred to in clauses (i) and (ii) (or individuals previously approved under this clause (iii)) above constituting at the time of such election or nomination at least
a majority of that board or equivalent governing body.
“CME” means CME Group Benchmark Administration Limited.
“Code” means the Internal Revenue Code of 1986.
“Commitment” means, as to each Lender, its obligation to (a) make Committed Loans to the Borrowers pursuant to Section 2.01, (b) purchase participations in L/C Obligations, and (c) purchase participations in Swing Line Loans, in an aggregate principal amount at any one time outstanding not to exceed the Dollar amount set forth opposite such Lender’s name on
Schedule 2.01A or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement; provided, however,
that, except for the purposes of Sections 2.07, Section 2.10, Article VIII, Section
9.11 and Article X, the Commitments of each Lender shall not include such Lender’s Additional Commitments until and following the Additional Commitment Availability Date.
9
“Commitment Fee” has the meaning specified in Section 2.10(a).
“Committed Borrowing” means a borrowing consisting of simultaneous Committed Loans of the same Type, in the same currency and, in the case of EurocurrencyTerm Benchmark Rate Loans, having the same Interest Period made by each of the
Lenders pursuant to Section 2.01.
“Committed Loan” has the meaning specified in Section 2.01.
“Committed Loan Notice” means a notice of (a) a Committed Borrowing, (b) a conversion of Committed Loans from one Type to the other, or (c) a continuation of EurocurrencyTerm Benchmark Rate Loans, pursuant to Section 2.02(a), which shall be substantially in the form of Exhibit A or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be
approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower.
“Company” has the meaning specified in the introductory paragraph hereto.
“Company Guaranty” means the Company Guaranty made by the Company in favor of the Administrative Agent and the Lenders, a copy of which is attached as Exhibit
F.
“Compliance Certificate” means a certificate substantially in the form of Exhibit D.
“Conforming Changes” means, with respect to the use, administration of or any
conventions associated with BBSY, BKBM, SOFR, Term SOFR or any proposed Successor Rate, as applicable, any conforming changes to the definitions of “Base Rate”, “SOFR”, “Term SOFR”, “BBSY”, “BKBM”, “Term Benchmark Rate” and “Interest Period”, timing and frequency of determining rates and making payments of interest and
other technical, administrative or operational matters (including, for the avoidance of doubt, the definitions of “Business Day” and “U.S. Government Securities Business Day”, timing of borrowing requests or prepayment, conversion or continuation notices and length of lookback
periods) as may be appropriate, in the discretion of the Administrative Agent, in consultation with the Company, to reflect the adoption and implementation of such applicable rate(s) and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice for Loans denominated in the applicable currency (or, if the Administrative Agent determines that adoption of any portion of such market practice is not
administratively feasible or that no market practice for the administration of such rate exists, in such other manner of administration as the Administrative Agent determines is reasonably necessary in connection with the administration of
this Agreement and any other Loan Document).
“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits
Taxes.
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“Consolidated EBITDA” means, with respect to any particular fiscal period, the amount equal to (a) Consolidated Operating Profit (or Loss) for such period, plus
(b) in each case without duplication, and to the extent deducted in calculating Consolidated Operating Profit (or Loss) for such period, (i) depreciation and amortization of the Company and its Subsidiaries, (ii) other non-cash charges of the
Company and its Subsidiaries, (iii) unusual and non-recurring losses of the Company and its Subsidiaries, (iv) fees and expenses incurred by the Company and its Subsidiaries for acquisitions (including the EOne Acquisition), dispositions,
investments and debt or equity issuances (whether or not consummated), including the amount of expenses related to retention awards and (v) unusual, non-recurring or onetime cash expenses, losses and charges (including restructuring, merger and
integration charges) of the Company and its Subsidiaries; provided that, except for any such amounts incurred in connection with the EOne Acquisition (including in connection with the implementation of cost savings initiatives in
connection therewith), amounts added back under this clause (v) shall not exceed $250 million in any four consecutive fiscal quarter period and $400 million after the Effective Date plus (c) the “run rate” amount of cost savings and
synergies that are directly attributable to the EOne Acquisition and actions taken in connection therewith and, as of the date of calculation with respect to such fiscal period, are anticipated by the Company in good faith to be realized within
24 months following the date of calculation, net of the amount of any such cost savings or synergies actually realized and included in the calculation of Consolidated EBITDA for such period; provided that (A) amounts added back under this
clause (c) with respect to any Measurement Period may not exceed 15% of Consolidated EBITDA for such Measurement Period (as calculated without giving effect to this clause (c)) and (B) such cost
savings and synergies are factually supportable and have been reasonably detailed by the Company in the applicable Compliance Certificate, and minus (d) to the extent included in Consolidated Operating Profit (or Loss) for such period, unusual
and non-recurring gains of the Company and its Subsidiaries for such period, all determined in accordance with GAAP.
“Consolidated Interest Coverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated EBITDA to (b) Consolidated Total Interest Expense, in each case for the most recently completed Measurement Period.
“Consolidated Net Worth” means an amount equal to (a) the total assets of the Company and its Subsidiaries on a consolidated basis minus (b) the total liabilities of the
Company and its Subsidiaries on a consolidated basis, determined in accordance with GAAP.
“Consolidated Operating Profit (or Loss)” means the consolidated operating profit (or loss) of the Company and its Subsidiaries identified as such on the Company’s income
statement for any period, determined in accordance with GAAP.
“Consolidated Total Funded Debt” means, as of any date of determination, with respect to the Company and its Subsidiaries, the amount equal to, without duplication, (a) the
aggregate amount of Indebtedness of the Company and its Subsidiaries, on a consolidated basis, relating to (i) the borrowing of money or the obtaining of credit, (ii) the deferred purchase price of assets (other than trade payables incurred in the
ordinary course of business), (iii) in respect of any Synthetic Lease Obligation or any Capitalized Leases, (iv) the face amount of all letters of credit outstanding and (v) any Recourse Obligations, plus (b) the aggregate amount of
Indebtedness of the type referred to in clause (a) of another Person (other than the Company or a Subsidiary thereof) guaranteed by the Company or any of its Subsidiaries, plus (c) the Attributable Indebtedness;
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provided that there shall be excluded from Consolidated Total Funded Debt (x) Indebtedness incurred by the Company or its Subsidiaries under any offering of notes to the extent the proceeds
thereof are (1) intended to be used to finance one or more acquisitions permitted hereunder and (2) held by the Company or any Subsidiary in a segregated account pending such application (or pending the redemption of such notes in the event any
such acquisition is not consummated), until such time as such proceeds are released from such segregated account and (y) indebtedness in respect of media production-level financings incurred by any Subsidiary of the Company, to the extent such
financings are non-recourse to the Company or any Subsidiary Guarantor. In determining under clause (a) of this definition the Indebtedness of the Company and its Subsidiaries under or in respect of any Permitted Receivables Securitization
Facility or under clause (c) of this definition the Attributable Indebtedness in respect of any Permitted Receivables Securitization Facility, such Indebtedness or amount shall be reduced by any escrowed or pledged cash proceeds which
effectively secure such Indebtedness or the obligations of the Company or any such Subsidiary under such Permitted Receivables Securitization Facility.
“Consolidated Total Interest Expense” means, for any period, the aggregate amount of interest expense of the Company and its Subsidiaries determined on a consolidated basis
in accordance with GAAP for such period.
“Consolidated Total Leverage Ratio” means, as of the last day of each fiscal quarter, the ratio of Consolidated Total Funded Debt as of such day to Consolidated EBITDA for
the Measurement Period then ended.
“Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any material written agreement, instrument or other undertaking to
which such Person is a party or by which it or any of its property is bound.
“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability
to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.
“Covered Entity” has the meaning specified in Section 10.22.
“Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.
“Daily Simple SOFR” with respect to any applicable determination date means the SOFR published on such date on the Federal Reserve Bank of New York’s website (or any successor source).
“Debt Rating” has the meaning specified in the definition of “Applicable Rate.”
“Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors,
moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the
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United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.
“Default” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of
Default.
“Default Rate” means an interest rate equal to 2.0% plus the rate that otherwise would be applicable (or if no rate is applicable, the Base Rate plus 2.0% per annum).
“Default Right” has the meaning specified in Section 10.22.
“Defaulting Lender” means, subject to Section 2.19(b), any Lender that (a) has failed to (i) fund all or any
portion of its Loans within two Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Company in writing that such failure is the result of such Lender’s
determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative
Agent, any L/C Issuer, the Swing Line Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swing Line Loans) within two Business Days of the date when
due, (b) has notified the Company, the Administrative Agent, any L/C Issuer or the Swing Line Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such
writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any
applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after written request by the Administrative Agent or the Company, to confirm in writing to
the Administrative Agent and the Company that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause
(c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had
appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance
Corporation or any other state or federal regulatory authority acting in such a capacity, or (iii) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or
acquisition of any Capital Stock in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of
courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such
Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above, and of the effective date of such status, shall be conclusive and binding absent
manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.19(b)) as of the date established therefor by the Administrative Agent in a written notice of such determination, which
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shall be delivered by the Administrative Agent to the Company, each L/C Issuer, the Swing Line Lender and each other Lender promptly following such determination.
“Designated Borrower” has the meaning specified in the introductory paragraph hereto.
“Designated Jurisdiction” means any country or territory to the extent that such country or territory itself is the subject of any Sanction.
“Disposition” or “Dispose” means the sale, transfer, lease or other disposition (including any sale and leaseback transaction) of any property by any Person.
“Dollar” and “$” mean lawful money of the United States.
“Dollar Equivalent” means, at any time, (a) with respect to any amount denominated in Dollars, such amount, and (b) with respect to any amount denominated in any Alternative
Currency, the equivalent amount thereof in Dollars as reasonably determined by the Administrative Agent or the applicable L/C Issuer, as the case may be, at such time on the basis of the Spot Rate (determined in respect of the most recent
Revaluation Date) for the purchase of Dollars with such Alternative Currency.
“Domestic Subsidiary” means any Subsidiary that is organized under the laws of any political subdivision of the United States.
“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution
Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a Subsidiary of an
institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any
delegee) having responsibility for the resolution of any EEA Financial Institution.
“Effective Date” means the first date on which all the conditions precedent in Section 4.01 are satisfied or waived in accordance with Section 10.01.
“Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 10.06(b)(iii) and (v) (subject to such
consents, if any, as may be required under Section 10.06(b)(iii)).
“EMU” means the economic and monetary union in accordance with the Treaty of Rome 1957, as amended.
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“EMU Legislation” means the legislative measures of the European Council for the introduction of, changeover to or operation of a single or unified European currency.
“Environmental Laws” means any and all Federal, state, local, and foreign statutes,
laws, regulations, ordinances, rules, judgments, orders or decrees relating to pollution and the protection of the environment or the release of any Hazardous Materials into the environment, including those related to hazardous substances or
wastes, air emissions and discharges to waste or public systems.
“Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or
indemnities), of the Company, any other Loan Party or any of their respective Subsidiaries directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement (other
than liabilities with respect to insurance premiums) pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“EOCL” means Entertainment One Canada Ltd.
“EOne” means Entertainment One Ltd, a corporation organized under the laws of Canada.
“EOne Acquired Business” means EOne and its Subsidiaries (including EOCL).
“EOne Acquisition” means the series of transactions that will result in the acquisition by the Company of the EOne Acquired Businesses pursuant to the EOne Acquisition
Agreement.
“EOne Acquisition Agreement” means that certain Arrangement Agreement, dated as of August 22, 2019, among the Company, 11573390 Canada Inc. and EOne (together with the
schedules thereto), as the same may be amended, supplemented or otherwise modified from time to time in accordance therewith and herewith.
“EOne Transactions” means the EOne Acquisition, the borrowing of the term loans under the Term Loan Facility, the issuance by the Company of equity securities, equity-linked
securities, hybrid debt-equity securities and/or senior unsecured debt securities through a public offering or in a private placement to finance the EOne Acquisition, the entry into by the Company of (and, if applicable, borrowing under) the Bridge
Facility and the other transactions contemplated by or related to the foregoing.
“Equity Proceeds” has the meaning specified in Section 7.05(b).
“ERISA” means the Employee Retirement Income Security Act of 1974.
“ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with the Company within the meaning of Section 414(b) or (c) of the Code (and
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Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).
“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) the withdrawal of the Company or any ERISA Affiliate from a Pension Plan subject to Section
4063 of ERISA during a plan year in which such entity was a “substantial employer” as defined in Section 4001(a)(2) of ERISA or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial
withdrawal by the Company or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate, the treatment of a Pension Plan amendment as a termination
under Section 4041 or 4041A of ERISA; (e) the institution by the PBGC of proceedings to terminate a Pension Plan; (f) any event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan; (g) the determination that any Pension Plan is considered an at-risk plan or a plan in endangered or critical status within the meaning of Sections 430, 431 and 432 of the Code or Sections 303, 304 and 305
of ERISA; or (h) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Company or any ERISA Affiliate.
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to
time.
“Euro” and “EUR” mean the lawful currency of the Participating Member States introduced in accordance with the EMU Legislation.
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“Event of Default” has the meaning specified in Section 8.01.
“Excluded Taxes” means any of the following Taxes imposed on or with respect to any Recipient or required to be withheld or deducted from a payment to a
Recipient, (a) Taxes imposed on or measured by net income, net profit or net worth (however denominated) of such Recipient, franchise or capital Taxes imposed on such Recipient in lieu of net income taxes, and branch profits Taxes of such
Recipient, in each case, (i) imposed as a result of such Recipient (or, in the case of a pass-through entity, any of its beneficial owners) being organized under the laws of, or having its principal office or, in the case of any Lender, its
Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. Federal or Swiss withholding Taxes imposed on amounts payable to or
for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment
request by a Borrower under Section 10.13) or (ii) such Lender changes its Lending Office, except in each case to the extent that, pursuant to Section 3.01(a)(ii), (a)(iii) or (c), amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately
before it changed its Lending Office, (c) Taxes attributable to such Recipient’s failure to comply with Section 3.01(e) and (d) any withholding Taxes imposed pursuant to FATCA. Notwithstanding anything to the contrary contained in this
definition, other than with respect to Swiss withholding tax, “Excluded Taxes” shall not include any withholding tax imposed at any time on payments made by or on behalf of a Foreign Obligor to any Lender hereunder or under any other Loan
Document, provided that such Lender shall have complied with Section 3.01(e), and provided, further, that, to the extent such Lender
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acquired its interest in the relevant Loan pursuant to an assignment or participation, as the case may be, such Lender did so in a manner compliant with Section 10.06(b)(viii).
“Existing Credit Agreement” has the meaning specified in the recitals hereto.
“Existing Letters of Credit” means those letters of credit listed on Schedule 1.01.
“Existing Maturity Date” has the meaning specified in Section 2.20(a).
“Existing Subsidiary Guaranty” has the meaning specified in Section 9.10(a).
“Extending Lender” has the meaning specified in Section 2.20(e).
“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not
materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices
adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code.
“Federal Funds Rate” means, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal
Reserve System, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate
(rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on such day on such transactions as determined by the Administrative Agent.
“Fee Letter” means that certain letter agreement, relating to the revolving credit facility hereunder, dated August 22, 2019, among the Company, the Administrative Agent and
BofA Securities, Inc.
“First Amendment” means that certain First Amendment to Revolving Credit Agreement among, the Borrowers, the Lenders and L/C Issuers party
thereto and the Administrative Agent, dated as of April 12, 2023.
“Fitch” means Fitch Ratings Inc., or its successors.
“Foreign Lender” means, with respect to any Borrower, any Lender that is organized under the Laws of a jurisdiction other than that in which such Borrower is resident for tax
purposes (including such a Lender when acting in the capacity of an L/C Issuer). For purposes of this definition, the United States, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.
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“Foreign Obligor” means a Loan Party that is a Foreign Subsidiary.
“Foreign Subsidiary” means any Subsidiary that is organized under the laws of a jurisdiction other than the United States, a State thereof or the District of Columbia.
“FRB” means the Board of Governors of the Federal Reserve System of the United States.
“Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to any L/C Issuer, such Defaulting Lender’s Applicable Percentage of the outstanding L/C
Obligations other than L/C Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof, and (b) with respect to the Swing Line Lender,
such Defaulting Lender’s Applicable Percentage of Swing Line Loans other than Swing Line Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders in accordance with the terms hereof.
“Fund” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar
extensions of credit in the ordinary course of its activities.
“GAAP” means generally accepted accounting principles in the United States consistent with the opinions and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant segment of the accounting profession in the United States, that are
applicable to the circumstances as of the date of determination, consistently applied.
“Governmental Authority” means the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national
bodies such as the European Union or the European Central Bank).
“Granting Lender” has the meaning specified in Section 10.06(h).
“Guaranties” means the Company Guaranty and any Subsidiary Guaranty.
“Hazardous Materials” means all explosive or radioactive substances or wastes regulated pursuant to any Environmental Law and all hazardous or toxic substances, wastes or
other pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
“Indebtedness” as applied to any Person, means, without duplication:
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(a) every obligation of such Person to repay money borrowed,
(b) every obligation of such Person for principal evidenced by bonds, debentures, notes or other similar instruments, including obligations incurred in connection with the acquisition of
property, assets or businesses,
(c) every reimbursement obligation of such Person with respect to letters of credit, bankers’ acceptances or similar facilities issued for the account of such Person,
(d) every obligation of such Person issued or assumed as the deferred purchase price of property or services (including securities repurchase agreements but excluding (i) trade accounts
payable or accrued liabilities arising in the ordinary course of business and (ii) earnout obligations in respect of assets or businesses acquired prior to the Effective Date),
(e) every obligation of such Person under any Capitalized Lease,
(f) every obligation of such Person under any Synthetic Lease Obligation,
(g) Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent that such Person is liable therefor as a result of such Person’s
ownership interest in or other relationship with such entity, except to the extent that the terms of such Indebtedness provide that such Person is not liable therefor and such terms are enforceable under applicable law,
(h) every obligation, contingent or otherwise, of such Person guaranteeing, or having the economic effect of guaranteeing or otherwise acting as surety for, any obligation of a type
described in any of clauses (a) through (h) (the “primary obligation”) of another Person (the “primary obligor”), in any manner, whether directly or indirectly, and including, without limitation, any such obligation of
such Person (i) to purchase or pay (or advance or supply funds for the purchase of) any security for the payment of such primary obligation, (ii) to purchase property, securities or services for the purpose of assuring the payment of such primary
obligation, or (iii) to maintain working capital, equity capital or other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such primary obligation.
The “amount” or “principal amount” of any Indebtedness at any time of determination represented by (w) any Indebtedness, issued at a price that is less than the
principal amount at maturity thereof, shall be the amount of the liability in respect thereof determined in accordance with GAAP, (x) any Capitalized Lease shall be the discounted aggregate rental obligations under such Capitalized Lease required
to be capitalized on the balance sheet of the lessee in accordance with GAAP and (y) any Synthetic Lease shall be the stipulated loss value, termination value or other equivalent amount.
“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan
Party under any Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes, other than Excluded Taxes.
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“Indemnitees” has the meaning specified in Section 10.04(b).
“Information” has the meaning specified in Section 10.07.
“Initial Loan” has the meaning specified in Section 2.01(b).
“Interest Payment Date” means, (a) as to any Loan other than a Base Rate Loan, the last day of each Interest Period applicable to such Loan and the Maturity
Date; provided, however, that if any Interest Period for a EurocurrencyTerm Benchmark Rate Loan exceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to
any Base Rate Loan (including a Swing Line Loan), the last Business Day of each March, June, September and December and the Maturity Date.
“Interest Period” means, as to each EurocurrencyTerm Benchmark Rate Loan, the period commencing on the date such EurocurrencyTerm Benchmark Rate Loan is disbursed or converted to or continued as a EurocurrencyTerm Benchmark Rate Loan and ending on the date one, two (other than for Term
Benchmark Rate Loans denominated in Dollars), three, or six months, or, to the extent available to all of the
Lenders, 12 months thereafter, as selected by the Company in its Committed Loan Notice (in the case of each requested Interest Period, subject to availability for the
applicable requested currency); provided that:
(a) any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another
calendar month, in which case such Interest Period shall end on the next preceding Business Day;
(b) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and
(c) no Interest Period shall extend beyond the Maturity Date.
“IRS” means the United States Internal Revenue Service.
“ISP” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such
later version thereof as may be in effect at the time of issuance).
“Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit Application, and any other document, agreement and instrument entered into by any L/C
Issuer and the Company (or any Subsidiary) or in favor of any L/C Issuer and relating to such Letter of Credit.
“Judgment Currency” has the meaning specified in Section 10.19.
“Laws” means, collectively, all applicable international, foreign, Federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and
administrative or judicial
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precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable
administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.
“L/C Advance” means, with respect to each Lender, such Lender’s funding of its participation in any L/C Borrowing in accordance with its Applicable Percentage. All L/C
Advances shall be denominated in Dollars.
“L/C Borrowing” means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a
Committed Borrowing. All L/C Borrowings shall be denominated in Dollars.
“L/C Commitment” means, with respect to each L/C Issuer, the commitment of such L/C Issuer to issue Letters of Credit hereunder. The initial amount of each L/C
Issuer’s Letter of Credit Commitment is set forth on Schedule 2.01B, or if an L/C Issuer has entered into an Assignment and Assumption or has otherwise assumed a Letter of Credit Commitment after the
Effective Date, the amount set forth for such L/C Issuer as its Letter of Credit Commitment in the Register maintained by the Administrative Agent. The Letter of Credit Commitment of an L/C Issuer may be modified from time to time by agreement
between such L/C Issuer and the Borrower, and notified to the Administrative Agent.
“L/C Credit Extension” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof.
“L/C Disbursement” means a payment made by an L/C Issuer pursuant to a Letter of Credit.
“L/C Issuer” means each of Bank of America, Citibank, N.A., Citizens Bank, N.A. and JPMorgan Chase Bank, N.A., in its capacity as issuer of Letters of Credit hereunder, or
any successor issuer of Letters of Credit hereunder. Any L/C Issuer may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of such L/C Issuer, in which case the term “L/C Issuer” shall include any such
Affiliate with respect to Letters of Credit issued by such Affiliate. Each reference herein to the “L/C Issuer” in connection with a Letter of Credit or other matter shall be deemed to be a reference to the relevant L/C Issuer with respect thereto.
“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. Upon an L/C Borrowing, the Unreimbursed Amount that is covered by such L/C Borrowing shall be deemed to be represented by, and not in addition to, such L/C Borrowing. 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 any amount may still be drawn thereunder by reason of the operation of Article 29(a) of the UCP or Rule 3.13 or Rule 3.14 of the ISP or similar terms of
the Letter of Credit itself, or if compliant documents have been presented but not yet honored, such
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Letter of Credit shall be deemed to be “outstanding” and “undrawn” in the amount so remaining available to be paid, and the obligations of the Borrower and each Lender shall remain in full force and effect until the
L/C Issuers and the Lenders shall have no further obligations to make any payments or disbursements under any circumstances with respect to any Letter of Credit.
“Lead Arrangers” means, collectively, BofA Securities, Inc., Citibank, N.A., Citizens Bank, N.A. and JPMorgan Chase Bank, N.A., each in its capacity as
co-lead arranger and co-book runner.
“Lender” has the meaning specified in the introductory paragraph hereto and, as the context requires, includes the Swing Line Lender.
“Lending Office” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s
Administrative Questionnaire as provided to the Company, or such other office or offices as a Lender may from time to time notify the Company and the Administrative Agent, which office may include any Affiliate of such Lender or any domestic or
foreign branch of such Lender or such Affiliate. Unless the context otherwise requires each reference to a Lender shall include its applicable Lending Office.
“Letter of Credit” means any letter of credit issued hereunder, including the Existing Letters of Credit. A Letter of Credit may be a commercial letter of credit or a standby
letter of credit. Letters of Credit may be issued in Dollars or in an Alternative Currency.
“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.
“Letter of Credit Expiration Date” means the day that is seven days prior to the Maturity Date then in effect (or, if such day is not a Business Day, the next preceding
Business Day).
“Letter of Credit Fee” has the meaning specified in Section 2.04(j).
“Letter of Credit Sublimit” means an amount equal to $75,000,000. The Letter of Credit Sublimit is part of, and not in addition to, the Aggregate Commitments.
“Leverage Notice” has the meaning specified in Section 7.05(b).
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“Lien” means any lien, mortgage, pledge, security interest, charge or encumbrance of any kind (including any conditional sale or other title retention agreement and any
agreement to provide a security interest).
“Loan” means an extension of credit by a Lender to a Borrower under Article II in the form of a Committed Loan or a Swing Line Loan.
“Loan Documents” means this Agreement, the First Amendment, each Note, any Guaranties, the Fee Letter and any agreement creating or perfecting rights in Cash Collateral pursuant to the provisions of Section 2.18 of this Agreement and any amendments, modifications or
supplements hereto or to any other Loan Document or waivers hereof or of any other Loan Document.
“Loan Parties” means, collectively, the Company, each Subsidiary Guarantor (if any) and the Designated Borrower.
“Material Adverse Effect” means with respect to any event or occurrence of whatever nature (including any adverse determination in any litigation, arbitration or governmental
investigation or proceeding), (a) a material adverse effect on the business, assets, operations or financial condition of the Company and its Subsidiaries taken as a whole; other than as a result of the imposition of, or increase in, any tariffs or
similar government imposed economic costs or controls, that do not have, and could not reasonably be expected to have, a disproportionate adverse effect on the Company and its Subsidiaries taken as a whole, as compared to other similarly situated
businesses operating in the same areas of business and geographies as the Company and its Subsidiaries; (b) a material adverse effect on the ability of the Company individually or the Loan Parties and their Significant Subsidiaries taken as a
whole, to perform its or their respective Obligations (as the case may be) under the Loan Documents; or (c) any material impairment of (i) the validity, binding effect or enforceability of this Agreement or any of the other Loan Documents or (ii)
the rights, remedies or benefits available to the Administrative Agent or any Lender under the Loan Documents.
“Maturity Date” means the latest to occur of (a) November 26, 2023, (b) in the event that the Additional Commitment Availability Date occurs, September 20, 2024
and (c) if maturity is extended pursuant to Section 2.20, such extended maturity date as determined thereunder; provided, however, that, in each
case, if such date is not a Business Day, the Maturity Date shall be the immediately preceding Business Day.
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“Measurement Period” means, at any date of determination, the most recently completed four fiscal quarters of the Company for which financial statements have
been or are required to be delivered pursuant to Section 6.01(a) or 6.01(b).
“Minimum Collateral Amount” means, at any time, (i) with respect to Cash Collateral consisting of cash or deposit account balances provided to reduce or
eliminate Fronting Exposure during the existence of a Defaulting Lender, an amount equal to the Fronting Exposure of the L/C Issuers with respect to Letters of Credit issued and outstanding at such time, (ii) with respect to Cash Collateral
consisting of cash or deposit account balances provided in accordance with the provisions of Section 2.18(a)(i), (a)(ii) or (a)(iii), an amount
equal to the Outstanding Amount of all L/C Obligations, and (iii) otherwise, an amount determined by the Administrative Agent and the L/C Issuers in their sole discretion.
“Minimum Principal Amount” means, with respect to Borrowings made in (i) Dollars, a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess
thereof, (ii) Australian Dollars, a principal amount of 2,000,000 AUD or a whole multiple of 500,000 AUD in excess thereof, (iii) Canadian Dollars, a principal amount of C$2,000,000 or a whole
multiple of C$500,000 in excess thereof, (iv) Euros, a principal amount of 4,000,000 Euros or a whole multiple of 1,000,000 Euros in excess thereof, (v) New Zealand Dollars, a principal amount of
2,000,000 NZD or a whole multiple of 500,000 NZD in excess thereof, (vi) Sterling, a principal amount of £3,000,000 or a whole multiple of £500,000 in excess thereof and (viiiv) any other Alternative Currency approved under Section
1.06 hereof, the amount proposed by the Administrative Agent and approved by the Lenders.
“Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.
“Multiemployer Plan” means any employee benefit plan of the type defined in Section 4001(a)(3) of ERISA, to which the Company 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.
“Multiple Employer Plan” means a Plan which has two or more contributing sponsors (including the Company or any ERISA Affiliate) at least two of whom are not under common
control, as defined in Section 4064 of ERISA.
“New Zealand Dollars” means the lawful currency of New Zealand.
“Non-Consenting Lender” means any Lender that does not approve any consent, waiver or amendment that (i) requires the approval of all Lenders or all affected Lenders in
accordance with the terms of Section 10.01 and (ii) has been approved by the Required Lenders.
“Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such time.
“Non-Extending Lender” has the meaning specified in Section 2.20(b).
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“Non-Priority Indebtedness” means Indebtedness which (a) is not senior to the Obligations, (b) does not have any priority of payment over the Obligations and (c) is not
secured by Liens on any of the Company’s or any Subsidiary’s assets.
“Note” means a promissory note made by a Borrower in favor of a Lender evidencing Loans made by such Lender to such Borrower, substantially in the form of Exhibit
C-1 or Exhibit C-2, as applicable.
“Notice Date” has the meaning specified in Section 2.20(b).
“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 or Letter of Credit, 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. Without limiting the foregoing, the
Obligations include 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.
“OFAC” means the Office of Foreign Assets Control of the United States Department of the Treasury.
“Organization Documents” means, (a) with respect to any corporation, the charter or 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 agreement; and (c) with respect to any
partnership, joint venture, trust or other form of business entity, the partnership, joint venture 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 document pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“Other Taxes” means all present or future stamp, court or documentary, 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
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under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section
3.06).
“Outstanding Amount” means (i) with respect to Committed Loans on any date, the Dollar Equivalent amount of the aggregate outstanding principal amount thereof after giving
effect to any borrowings and prepayments or repayments of such Committed Loans occurring on such date; (ii) with respect to Swing Line Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and
prepayments or repayments of such Swing Line Loans occurring on such date; and (iii) with respect to any L/C Obligations on any date, the Dollar Equivalent amount of the aggregate outstanding 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 by the Company of Unreimbursed Amounts.
“Overnight Rate” means, for any day, (a) with respect to any amount denominated in Dollars, the greater of (i) the Federal Funds Rate and (ii) an overnight rate determined by
the Administrative Agent, the applicable L/C Issuer, or the Swing Line Lender, as the case may be, in accordance with banking industry rules on interbank compensation, and (b) with respect to any amount denominated in an Alternative Currency, the
rate of interest per annum at which overnight deposits in the applicable Alternative Currency, in an amount approximately equal to the amount with respect to which such rate is being determined, would be offered for such day by a branch or
Affiliate of Bank of America in the applicable offshore interbank market for such currency to major banks in such interbank market; in each case, plus any administrative, processing or similar fees customarily charged by the Administrative Agent,
such L/C Issuer or the Swing Line Lender in connection with the foregoing.
“Participant” has the meaning specified in Section 10.06(d).
“Participant Register” has the meaning specified in Section 10.06(d).
“Participating Member State” means each state so described in any EMU Legislation.
“PBGC” means the Pension Benefit Guaranty Corporation.
“Pension Plan” means any employee pension benefit plan (including a Multiple Employer Plan or a Multiemployer Plan) that is maintained or is contributed to by the Company and
any ERISA Affiliate and is either covered by Title IV of ERISA or is subject to the minimum funding standards under Section 412 of the Code.
“Permitted Receivables Securitization Facility” means any transaction or series of related transactions providing for the financing of any Receivables; provided that
any such transaction shall be consummated on terms that include terms substantially as described on Schedule 1.03 or as the Required Lenders may otherwise consent, such consent not to be unreasonably withheld.
“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
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“Plan” means any employee benefit plan within the meaning of Section 3(3) of ERISA (including a Pension Plan), maintained for employees of the Company or any ERISA Affiliate
or any such Plan to which the Company or any ERISA Affiliate is required to contribute on behalf of any of its employees and not excluded under Section 4 of ERISA.
“Platform” has the meaning specified in Section 6.02.
“Pro Forma Basis” means, with respect to compliance with any test or covenant for any period (including any Measurement Period) hereunder, compliance with such test or
covenant after giving effect to any disposition or acquisition, giving effect to increases or (as the case may be) decreases in EBITDA based on the historical financial results of such disposed or acquired entity and using, for purposes of
determining such compliance with respect to the Company and its Subsidiaries, the consolidated financial statements of the Company and its Subsidiaries as if such disposition or acquisition had been consummated at the commencement of such period.
“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.
“QFC” has the meaning specified in Section 10.22.
“QFC Credit Support” has the meaning specified in Section 10.22.
“Qualifying Bank” means, in relation to any Borrower that is organized under the laws of Switzerland, a Lender which is a financial institution which is duly licensed as a
bank under the law of its jurisdiction of incorporation and which pursues genuine banking activities in the jurisdiction of its lending office as referred to under the respective regulations of the Swiss Federal Tax Administration, in particular
under Section 3.b. of Notes S-02.122.1 as well as under Section I.232 of Notes S-02.128.
“Rate Determination Date” means two (2) Business Days prior to the commencement of such Interest Period (or such other day as is generally treated as the rate fixing day by
market practice in such interbank market, as determined by the Administrative Agent; provided that to the extent such market practice is not administratively feasible for the Administrative Agent, such other day as otherwise reasonably
determined by the Administrative Agent).
“Receivables” means all accounts and accounts receivable of the Company or any of its Subsidiaries, including, without limitation, any accounts and accounts receivable
constituting or evidenced by chattel paper, instruments or general intangibles, all unpaid rights of such Person (including rescission, replevin, reclamation and stopping in transit) relating to the foregoing or arising therefrom, all proceeds
thereof and rights (contractual and other) and collateral for such accounts and accounts receivable, and all insurance policies or rights relating to any of the foregoing. Notwithstanding the foregoing, Receivables shall not include any rights or
interests in intellectual property of the Company or any of its Subsidiaries.
“Receivables Subsidiary” means any special purpose, bankruptcy-remote corporation, limited liability company, trust or other entity established and majority owned by the
Company or a Subsidiary that purchases, receives contributions of, or receives financing secured by, Receivables generated by the Company or any of its Subsidiaries.
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“Recipient” means the Administrative Agent, any Lender, each L/C Issuer or any other recipient of any payment to be made by or on account of any obligation of any Loan Party
hereunder.
“Recourse Obligations” of a Person means all sales with recourse by such Person of (i) accounts or general intangibles for money due or to become due, (ii) chattel paper,
instruments or documents creating or evidencing a right to payment of money or (iii) other receivables (collectively “receivables”), whether pursuant to a purchase facility or otherwise, other than in connection with the disposition of the
business operations of such Person relating thereto or a disposition of defaulted receivables for collection and not as a financing arrangement, and together with any obligation of such Person to pay any discount, interest, fees, indemnities,
penalties, recourse, expenses or other amounts in connection therewith. The outstanding amount of any Recourse Obligation shall be the portion of the principal investment of the purchaser thereof (other than the Company or a Subsidiary) as to which
recourse to such Person exists, in any event excluding amounts representative of yield and interest earned on such investment.
“Register” has the meaning specified in Section 10.06(c).
“Regulation S-X” has the meaning specified in Section 4.03(c).
“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers,
advisors and representatives of such Person and of such Person’s Affiliates.
“Relevant Rate” means with respect to any Borrowing denominated (a) in Australian Dollars, BBSY and (b) in New Zealand Dollars, BKBM, as
applicable (or any Alternative Currency Successor Rate established in connection therewith).
“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 Committed Loans, a Committed Loan Notice, (b) with respect to an L/C
Credit Extension, a Letter of Credit Application, and (c) with respect to a Swing Line Loan, a Swing Line Loan Notice.
“Required Lenders” means, at any time, Lenders having Total Credit Exposures representing more than 50% of the Total Credit Exposures of all Lenders or, if the commitment of
each Lender to make Loans and the obligation of the L/C Issuers to make L/C Credit Extensions have been terminated pursuant to Section 8.02, Lenders holding in the aggregate more than 50% of the Total Outstandings (with the aggregate amount
of each Lender’s participation in L/C Obligations and Swing Line Loans being deemed “held” by such Lender for purposes of this computation). The Total Credit Exposure of, and Total Outstandings held by,
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any Defaulting Lender shall be disregarded in determining Required Lenders at any time; provided that, the amount of any participation in any Swing Line Loan and Unreimbursed Amounts that such Defaulting
Lender has failed to fund that have not been reallocated to and funded by another Lender shall be deemed to be held by the Lender that is the Swing Line Lender or the applicable L/C Issuer, as the case may be, in making such determination.
“Rescindable Amount” has the meaning specified in Section 2.13(b).
“Responsible Officer” means (a) the chief executive officer, chief operating officer, president, chief financial officer, treasurer, assistant treasurer or
controller of a Loan Party, (b) solely for purposes of the delivery of incumbency certificates pursuant to Section 4.01, the secretary or any assistant secretary of a Loan Party, and (c) solely for
purposes of notices given pursuant to Article II, any other officer or employee of the applicable Loan Party so designated by any of the foregoing officers in a notice to the Administrative Agent or
any other officer or employee of the applicable Loan Party designated in or pursuant to an agreement between the applicable Loan Party and the Administrative Agent. 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.
“Revaluation Date” means (a) with respect to any Loan, each of the following: (i) each date of a Borrowing of a Eurocurrency
Rate Loan denominated in an Alternative Currency, (ii) each date of a continuation of a EurocurrencyTerm Benchmark Rate Loan denominated in an Alternative Currency pursuant to Section 2.02, and (iii) such additional
prospective dates as the Administrative Agent shall reasonably determine or the Required Lenders shall reasonably require; and (b) with respect to any Letter of Credit, each of the following: (i) each date of issuance of a Letter of Credit
denominated in an Alternative Currency, (ii) each date of an amendment of any such Letter of Credit having the effect of increasing the amount thereof, (iii) each date of any payment by any L/C Issuer under any Letter of Credit denominated in an
Alternative Currency, and (iv) such additional prospective dates as the Administrative Agent or the applicable L/C Issuer shall reasonably determine or the Required Lenders shall reasonably require.
“Revolving Credit Exposure” means, as to any Lender at any time, the aggregate principal amount at such time of its outstanding Committed Loans and such Lender’s
participation in L/C Obligations and Swing Line Loans at such time.
“S&P” means S&P Global Ratings and any successor thereto.
“Same Day Funds” means (a) with respect to disbursements and payments in Dollars, immediately available funds, and (b) with respect to disbursements and payments in an
Alternative Currency, same day or other funds as may be determined in good faith by the Administrative Agent or the applicable L/C Issuer, as the case may be, to be customary in the place of disbursement or payment for the settlement of
international banking transactions in the relevant Alternative Currency.
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“Sanctions” means economic or financial sanctions administered or enforced by the United States Government (including, without limitation, OFAC), the European
Union, HerHis Majesty’s Treasury (“HMT”), the Government of Canada, or any
other relevant sanctions authority of a jurisdiction in which any Borrower conducts business, or established pursuant to United Nations Security Council resolution.
“SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.
“Significant Subsidiary” means (a) the Designated Borrower, (b) any other Subsidiary of the Company (other than any Receivables Subsidiary), which, either alone or together
with the Subsidiaries of such Subsidiary, meets either of the following conditions:
(a) the investments of the Company and its Subsidiaries in, or their proportionate share (based on their equity interests) of the book value of the total assets (after intercompany
eliminations) of, the Subsidiary in question exceed 10% of the book value of the total assets of the Company and its Subsidiaries on a consolidated basis, or
(b) the equity of the Company and its Subsidiaries in the revenues of the Subsidiary in question exceeds 10% of the revenues from continuing operations of the Company and its Subsidiaries
on a consolidated basis for the Company’s most recent fiscal year.
“SOFR” has the meaning specified in Section 3.03(bmeans the Secured Overnight Financing Rate as administered by the Federal Reserve Bank of New York (or a successor administrator).
“SOFR Adjustment” means 0.10% per annum.
“SPC” has the meaning specified in Section 10.06(h).
“Special Notice Currency” means at any time an Alternative Currency, other than Australian Dollars, Canadian
Dollars, Euros, Sterling or any other currency of a country that is a member of the Organization for Economic Cooperation and Development at such time located in North America, Europe or Australia.
“Spot Rate” for a currency means the rate determined by the Administrative Agent or the applicable L/C Issuer, as applicable, to be the rate quoted by the
Person acting in such capacity as the spot rate for the purchase by such Person of such currency with another currency through its principal foreign exchange trading office at approximately 11:00 a.m. on the date two Business Days prior to the
date as of which the foreign exchange computation is made; provided that the Administrative Agent or the applicable L/C Issuer may obtain such spot rate from another financial institution designated by the Administrative Agent or such L/C
Issuer if the Person acting in such capacity does not have as of the date of determination a spot buying rate for any such currency; and provided further that such L/C Issuer may use such spot
rate quoted
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on the date as of which the foreign exchange computation is made in the case of any Letter of Credit denominated in an Alternative Currency.
“Subsequent Borrowings” has the meaning specified in Section 2.01(b).
“Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of Capital
Stock having ordinary voting power for the election of directors or other governing body (other than Capital Stock having such power only by reason of the happening of a contingency) are at the time beneficially owned directly or indirectly through
one or more Subsidiaries by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Company. For the purposes of this Agreement and the other Loan
Documents, from and after the Additional Commitment Availability Date, EOCL and its Subsidiaries shall in any event be deemed to be Subsidiaries of the Company so long as they are included in the consolidated financial statements of the Company.
“Subsidiary Guarantor” means any Subsidiary Guarantor that may become party to a Subsidiary Guaranty from time to time pursuant to Section 6.12.
“Subsidiary Guaranty” means a Subsidiary Guaranty made by one or more Subsidiary Guarantors after the Effective Date in favor of the Administrative Agent and
the Lenders, substantially in the form of Exhibit G.
“Supported QFC” has the meaning specified in Section 10.22.
“Swap Contract” means any agreement or arrangement designed to protect at least one of the parties thereto from the fluctuations of interest rates, exchange rates or forward
rates applicable to such party’s assets, liabilities or exchange transactions, including, but not limited to, interest rate exchange agreements, forward currency exchange agreements, interest rate cap or collar protection agreements, forward rate
currency or interest rate options, puts and warrants.
“Swing Line” means the revolving credit facility made available by the Swing Line Lender pursuant to Section 2.05.
“Swing Line Borrowing” means a borrowing of a Swing Line Loan pursuant to Section 2.05.
“Swing Line Lender” means Bank of America in its capacity as provider of Swing Line Loans, or any successor swing line lender hereunder.
“Swing Line Loan” has the meaning specified in Section 2.05(a).
“Swing Line Loan Notice” means a notice of a Swing Line Borrowing pursuant to Section 2.05(b), which shall be
substantially in the form of Exhibit B or such other form as approved by the Administrative Agent (including any form on an electronic platform or
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electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower.
“Swing Line Sublimit” means an amount equal to the lesser of (a) $50,000,000 and (b) the Aggregate Commitments. The Swing Line Sublimit is part of, and not in addition to,
the Aggregate Commitments.
“Synthetic Lease” means (a) a so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or possession of property creating obligations
that do not appear on the balance sheet of such Person but which, upon the insolvency or bankruptcy of such Person, would be characterized as the indebtedness of such Person (without regard to accounting treatment).
“Synthetic Lease Obligation” means the monetary obligation of a Person under a Synthetic Lease.
“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, or fees or other charges related
thereto imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Term Benchmark Rate” means, for any Interest Period with respect to any Credit Extension,
(a) denominated in Dollars, the rate per annum equal to Term SOFR, determined pursuant to clause (a) of the definition of “Term SOFR”, with a term equivalent to such Interest Period;
(b) denominated in Australian Dollars, the rate per annum equal to the Bank Bill Swap Reference Bid Rate (“BBSY”) or a comparable or successor rate, which rate is approved by the Administrative Agent, as published on the applicable Bloomberg screen page
(or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) at or about 10:30 a.m. (Melbourne, Australia time) on the Rate Determination Date with a term equivalent
to such Interest Period; provided that, if the Term Benchmark Rate determined in accordance with this clause (b) shall be less than zero, such rate shall be deemed
zero for purposes of this Agreement; and
(c) denominated in New Zealand Dollars, the rate per annum equal to the Bank
Bill Reference Bid Rate (“BKBM”) or a comparable or successor rate, which rate is approved by the Administrative Agent, as published on the applicable Bloomberg screen page (or such other commercially available source providing such quotations
as may be designated by the Administrative Agent from time to time) at or about 10:45 a.m. (Auckland, New Zealand time)
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on the Rate Determination Date with a term equivalent to such Interest Period; provided that, if the
Term Benchmark Rate determined in accordance with this clause (c) shall be less than zero, such rate shall be deemed zero for purposes of this Agreement.
“Term Benchmark Rate Loan” means a Committed Loan that bears interest at a rate based
on a Term Benchmark Rate. Term Benchmark Rate Loans may be denominated in Dollars or in an Alternative Currency. All
Committed Loans denominated in an Alternative Currency must be Term Benchmark Rate Loans.
“Term Loan Facility” means the term loan facility under that certain Term Loan Agreement, dated as of the date hereof, by and among the Company, the lenders party thereto and
Bank of America, N.A., as administrative agent.
“Term SOFR” means:
(a) for any Interest Period with respect to a Term Benchmark Rate Loan denominated in Dollars, the rate per annum equal to the Term SOFR Screen Rate two U.S. Government Securities Business Days prior to the commencement of such Interest Period with a term equivalent to such Interest Period; provided that if the rate is not published prior to 11:00 a.m. on such determination date then Term SOFR means the Term SOFR Screen Rate on the first U.S. Government Securities Business
Day immediately prior thereto, in each case, plus the SOFR Adjustment; and
(b) for any interest calculation with respect to a Base Rate Loan on any date, the rate per annum equal to the Term SOFR Screen Rate with a term of one month commencing that day;
provided that if the Term SOFR determined in accordance with either of the
foregoing provisions (a) or (b) of this definition would otherwise be less than zero, the Term SOFR shall be deemed zero for purposes of this Agreement.
“Term SOFR Replacement Date” has the meaning specified in Section 3.03(b).
“Term SOFR Scheduled Unavailability Date” has the meaning specified in Section 3.03(b).
“Term SOFR Screen Rate” means the forward-looking SOFR terms rate administered by CME (or any other successor administrator
satisfactory to the Administrative Agent) and published on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated by the
Administrative Agent from time to time).
“Term SOFR Successor Rate” has the meaning specified in Section 3.03(b).
“Threshold Amount” means $125,000,000.
“Total Credit Exposure” means, as to any Lender at any time, the unused Commitments and Revolving Credit Exposure of such Lender at such time.
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“Total Outstandings” means the aggregate Outstanding Amount of all Loans and all L/C Obligations.
“Type” means, with respect to a Committed Loan, its character as a Base Rate Loan or a EurocurrencyTerm Benchmark Rate Loan.
“UCP” means, with respect to any Letter of Credit, 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).
“United States” and “U.S.” mean the United States of America.
“Unreimbursed Amount” has the meaning specified in Section 2.04(f). Upon an L/C Borrowing, the Unreimbursed Amount
that is covered by such L/C Borrowing shall be deemed to be represented by, and not in addition to, such L/C Borrowing.
“U.S. Government Securities Business Day” means any Business Day, except any Business Day on which any of the Securities Industry
and Financial Markets Association, the New York Stock Exchange or the Federal Reserve Bank of New York is not open for
business because such day is a legal holiday under the federal laws of the United States or the laws of the State of New York, as applicable.
“U.S. Person” means a “United States person” within the meaning of Section 7701(a)(30) of the Code.
“Write-Down and Conversion Powers” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to
time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.
1.02. 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 definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The
word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument or other document (including any
Organization Document) shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any express restrictions on such amendments, supplements or
modifications set forth herein or in any other Loan Document), (ii) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (iii) the words “hereto,” “herein,” “hereof” and “hereunder,”
and words of similar import when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any particular provision thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits and
Schedules unless otherwise specified shall be construed to refer to Articles and
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Sections of, and Exhibits and Schedules to, the Loan Document in which such references appear, (v) any reference to any Law shall include all statutory and regulatory provisions consolidating, amending, replacing or
interpreting such law and any reference to any law, rule or regulation shall, unless otherwise specified, refer to such law, rule or regulation as amended, modified or supplemented from time to time, and (vi) the words “asset” and “property”
shall be construed to have the same meaning and effect and to refer to any and all applicable tangible and intangible assets and properties, including cash, securities, accounts and contract rights.
(b) 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.”
(c) 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.
(d) Any reference herein to a merger, transfer, consolidation, amalgamation, consolidation, assignment, sale, disposition
or transfer, or similar term, shall be deemed to apply to a division of or by a limited liability company, or an allocation of assets to a series of a limited liability company (or the unwinding of such a division or allocation), as if it were a
merger, transfer, consolidation, amalgamation, consolidation, assignment, sale, disposition or transfer, or similar term, as applicable, to, of or with a separate Person. Any division of a limited liability company shall constitute a separate
Person hereunder (and each division of any limited liability company that is a Subsidiary, joint venture or any other like term shall also constitute such a Person or entity).
1.03. Accounting Terms.
(a) Generally. All accounting terms not specifically or completely defined herein shall be construed in conformity
with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP as in effect from time to time, applied on a basis
consistent (except for changes concurred in by the Company’s independent public accountants) with the most recent audited consolidated financial statements of the Company and its Subsidiaries delivered pursuant to Section 6.01 or, prior
to such delivery, the Audited Financial Statements, except as otherwise specifically prescribed herein.
(b) Changes in GAAP. If at any time any change in GAAP would affect the computation of any financial ratio or
requirement set forth in any Loan Document, and either the Company or the Required Lenders shall so request, the Administrative Agent, the Lenders and the Company shall negotiate in good faith to amend such ratio or requirement to preserve the
original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders); provided that, until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such
change therein and (ii) the Company shall provide to the Administrative Agent a written reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP; provided further
that such reconciliation shall be required to be provided only for the four fiscal quarters following
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such change. Without limiting the foregoing, including for the purpose of calculating the Consolidated Total Leverage Ratio, leases shall continue to be classified and accounted for on a basis consistent with that
reflected in the Audited Financial Statements (i.e. without giving effect to the adoption of Accounting Standards Update 2016-02, Leases (Topic 842)) for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless
the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above. For the avoidance of doubt, changes in GAAP shall include both changes adopted after the date hereof and changes adopted prior to
the date hereof and first made effective as to the Loan Parties after the date hereof.
1.04. Rounding. Any financial ratios required to be maintained
by the Company pursuant to this Agreement 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).
1.05. Exchange Rates; Currency Equivalents.
(a) The Administrative Agent or the applicable L/C Issuer, as applicable, shall determine the Spot Rates as of each
Revaluation Date to be used for calculating Dollar Equivalent amounts of Credit Extensions and Outstanding Amounts denominated in Alternative Currencies. Such Spot Rates shall become effective as of such Revaluation Date and shall be the Spot
Rates employed in calculating Dollar Equivalent amounts of Credit Extensions and Outstanding Amounts until the next Revaluation Date to occur. Except as otherwise provided herein, the applicable amount of any currency (other than Dollars) for
purposes of the Loan Documents shall be the Dollar Equivalent thereof.
(b) Wherever in this Agreement in connection with a Committed Borrowing, conversion, continuation or prepayment of a EurocurrencyTerm Benchmark Rate Loan or the issuance, amendment or extension of a Letter
of Credit, an amount, such as a required minimum or multiple amount, is expressed in Dollars, but such Committed Borrowing, EurocurrencyTerm Benchmark Rate Loan or Letter of Credit is denominated in an Alternative Currency, such amount shall be the relevant Alternative Currency Equivalent of such Dollar
amount (rounded to the nearest unit of such Alternative Currency, with 0.0001 of a unit being rounded upward), as determined by the Administrative Agent or the applicable L/C Issuer, as the case may be.
1.06. Additional Alternative Currencies.
(a) The Company may from time to time request that Eurocurrency Rate Loans be made and/or Letters of Credit be issued in a currency other than those specifically listed in the definition of “Alternative Currency;” provided that such requested currency is a lawful currency (other
than Dollars) that is readily available and freely transferable and convertible into Dollars. In the case of any such request with respect to the making of Eurocurrency Rate Loans in such other currency, such request shall be subject to the approval of the Administrative Agent and the Lenders, including specification
by the Administrative Agent of a reasonable Minimum Principal Amount for such Alternative Currency; and in the case of any such request with respect to the
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issuance of Letters of Credit, such request shall be subject to the approval of the Administrative Agent and the L/C Issuers.
(b) Any such request shall be made to the Administrative Agent not later than 11:00 a.m., 10 Business Days prior to the
date of the desired Credit Extension (or such other time or date as may be agreed by the Administrative Agent and, in the case of any such request pertaining to Letters of Credit, the L/C Issuers, in its or their sole discretion). In the case of
any such request pertaining to Eurocurrency Rate Loans in a new Alternative
Currency, the Administrative Agent shall promptly notify each Lender thereof and of the proposed Minimum Principal Amount therefor; and in the case of any such request pertaining to Letters of Credit,
the Administrative Agent shall promptly notify the L/C Issuers thereof. Each Lender (in the case of any such request pertaining to Eurocurrency Rate Loans in a new Alternative Currency) or each L/C Issuer (in the case of a request pertaining to Letters of Credit) shall notify the Administrative
Agent, not later than 11:00 a.m., five Business Days after receipt of such request whether it consents, in its sole discretion, to the making of Eurocurrency Rate Loans in such new Alternative Currency or the issuance of Letters of Credit, as the case may be, in such requested
currency.
(c) Any failure by a Lender or an L/C Issuer, as the case may be, to respond to such request within the time period
specified in the preceding sentence shall be deemed to be a refusal by such Lender or such L/C Issuer, as the case may be, to permit Eurocurrency Rate Loans
to be made or Letters of Credit to be issued in such requested currency. If the Administrative Agent and all the Lenders consent to making Eurocurrency Rate Loans in such requested currency, the Administrative Agent shall so notify the Company and such currency shall thereupon be deemed for all purposes to be an Alternative Currency hereunder for purposes of any Committed Borrowings of Eurocurrency Rate Loans; and if the Administrative Agent and the L/C Issuers consent to the issuance of Letters of Credit in such requested currency, the
Administrative Agent shall so notify the Company and such currency shall thereupon be deemed for all purposes to be an Alternative Currency hereunder for purposes of any Letter of Credit issuances. If the Administrative Agent shall fail to obtain
consent to any request for an additional currency under this Section 1.06, the Administrative Agent shall promptly so notify the Company. Any specified currency of an Existing Letter of Credit that is neither Dollars nor one of the
Alternative Currencies specifically listed in the definition of “Alternative Currency” shall be deemed an Alternative Currency with respect to such Existing Letter of Credit only.
1.07. Change of Currency.
(a) Each obligation of the Borrowers to make a payment denominated in the national currency unit of any member state of
the European Union that adopts the Euro as its lawful currency after the date hereof shall be redenominated into Euro at the time of such adoption (in accordance with the EMU Legislation). If, in relation to the currency of any such member state,
the basis of accrual of interest expressed in this Agreement in respect of that currency shall be inconsistent with any convention or practice in the Londonapplicable interbank market for the basis of accrual of interest in respect of the Euro, such expressed basis shall be replaced by such convention or practice
with effect from the date on which such member state adopts the Euro as its lawful currency; provided that if any Committed Borrowing in the currency of such member state is outstanding immediately prior to such date, such replacement
shall take effect, with
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respect to such Committed Borrowing, at the end of the then current Interest Period (if the applicable rate is a
term rate) or otherwise, after the Interest Payment Date immediately following such replacement.
(b) Each provision of this Agreement shall be subject to such reasonable changes of construction as the Administrative
Agent, in consultation with the Borrowers, may from time to time reasonably specify to be appropriate to reflect the adoption of the Euro by any member state of the European Union and any relevant market conventions or practices relating to the
Euro.
(c) Each provision of this Agreement also shall be subject to such reasonable changes of construction as the
Administrative Agent, in consultation with the Borrowers, may from time to time reasonably specify to be appropriate to reflect a change in currency of any other country and any relevant market conventions or practices relating to the change in
currency.
1.08. Times of Day. Unless otherwise specified, all references
herein to times of day shall be references to Eastern time (daylight or standard, as applicable).
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 Dollar Equivalent of the stated amount of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of Credit
that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum stated amount of such Letter
of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.
1.10. Interest Rates. The Administrative Agent
does not warrant, nor accept responsibility, nor shall the Administrative Agent have any liability with respect to the administration, submission or any other matter related to the rates in the
definition of “Eurocurrency Rate”any reference rate referred to herein the or with respect to any comparable or successor rate thereto.rate (including, for the avoidance of doubt, the selection of such rate and any related spread
or other adjustment) that is an alternative or replacement for or successor to any such rate (including, without limitation, any Term SOFR Successor Rate or Alternative Currency Successor Rate) (or any component of any of the foregoing) or the
effect of any of the foregoing, or of any Conforming Changes. The Administrative Agent and its affiliates or other related entities may engage in transactions or other activities that affect any reference rate referred to herein, or any
alternative, successor or replacement rate (including, without limitation, any Term SOFR Successor Rate or Alternative Currency Successor Rate) (or any component of any of the foregoing) or any related spread or other adjustments thereto, in
each case, in a manner adverse to the Borrowers. The Administrative Agent may select information sources or services in its reasonable discretion to ascertain any reference rate referred to herein or any alternative, successor or replacement
rate (including, without limitation, any Term SOFR Successor Rate or Alternative Currency Successor Rate) (or any component of any of the foregoing), in each case pursuant to the terms of this Agreement, and shall have no liability to any
Borrower, any Lender, any L/C Issuer 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
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or other action or omission related to or affecting the selection, determination, or calculation of any rate (or component thereof) provided by any such
information source or service.
ARTICLE II.
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01. Committed Loans.
(a) Subject to the terms and conditions set forth herein, each Lender hereby severally agrees to make loans (each such
loan, a “Committed Loan”) to the Borrowers in Dollars or in one or more Alternative Currencies from time to time, on any Business Day during the Availability Period, in an aggregate amount not to exceed at any time outstanding the amount
of such Lender’s Commitment (which shall include, on and after the Additional Commitment Availability Date, the Additional Commitments in accordance with clause (b) of this Section 2.01 below); provided, however,
that after giving effect to any Committed Borrowing, (i) the Total Outstandings shall not exceed the Aggregate Commitments and (ii) the Revolving Credit Exposure of any Lender shall not exceed such Lender’s Commitment. Within the limits of each
Lender’s Commitment, and subject to the other terms and conditions hereof, the Borrowers may borrow under this Section 2.01, prepay under Section 2.06, and reborrow under this Section 2.01. Committed Loans may be Base Rate
Loans or EurocurrencyTerm Benchmark Rate Loans, as further provided herein.
(b) On the Additional Commitment Availability Date, (A) the aggregate principal amount of the Committed Loans outstanding
(for the purposes of this Section 2.01(b), the “Initial Loans”) immediately prior to the Additional Commitment Availability Date shall be deemed to be repaid, (B) the Borrowers shall be deemed to have made new Borrowings (for the
purposes of this Section 2.01(b), the “Subsequent Borrowings”) in an aggregate principal amount equal to the aggregate principal amount of the Initial Loans and of the types and for the Interest Periods specified in a notice
delivered to the Administrative Agent in accordance with this Section 2.02, (C) each Lender shall pay to the Administrative Agent in Same Day Funds an amount equal to the difference, if positive, between (x) such Lender’s Applicable
Percentage (calculated including the Additional Commitments) of the Subsequent Borrowings and (y) such Lender’s Applicable Percentage (calculated excluding the Additional Commitments) of the Initial Loans, (D) after the Administrative Agent
receives the funds specified in clause (C) above, the Administrative Agent shall pay to each Lender the portion of such funds that is equal to the difference, if positive, between (1) such Lender’s Applicable Percentage (calculated
excluding the Additional Commitments) of the Initial Loans and (2) such Lender’s Applicable Percentage (calculated including the Additional Commitments) of the amount of the Subsequent Borrowings, (E) each Lender shall be deemed to hold its
Applicable Percentage of each Subsequent Borrowing (each calculated including the Additional Commitments) and (F) the Company shall pay each Lender any and all accrued but unpaid interest on the Initial Loans. The Lenders hereby waive the right
to deemed compensation pursuant to Section 3.05 hereof in respect of any deemed payments made pursuant to clause (A) above.
2.02. Borrowings, Conversions and Continuations of Committed Loans.
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(a) Each Committed Borrowing, each conversion of Committed Loans from one Type to the other, and each continuation of EurocurrencyTerm Benchmark Rate Loans shall be made upon the Company’s or Designated
Borrower’s, as the case may be, irrevocable notice to the Administrative Agent, which may be given by (A) telephone or (B) a Committed Loan Notice; provided that any telephonic notice must be confirmed immediately by delivery to the
Administrative Agent of a Committed Loan Notice. Each such Committed Loan Notice must be received by the Administrative Agent not later than (i) 1:00 p.m. three Business Days prior to the requested date of any Borrowing of, conversion to or
continuation of EurocurrencyTerm Benchmark Rate Loans denominated in Dollars
or of any conversion of EurocurrencyTerm Benchmark Rate Loans denominated in
Dollars to Base Rate Committed Loans, (ii) 12:00 noon four Business Days (or five Business Days in the case of a Special Notice Currency) prior to the requested date of any Borrowing or continuation of EurocurrencyTerm Benchmark Rate Loans denominated in Alternative Currencies, and (iii) 12:00 noon on the requested date of any Borrowing of Base Rate
Committed Loans; provided, however, that if any Borrower wishes to request EurocurrencyTerm Benchmark Rate Loans having an Interest Period other than one, two, three or six months in duration as provided in the definition of
“Interest Period”, the applicable notice must be received by the Administrative Agent not later than 11:00 a.m. (i) four Business Days prior to the requested date of such Borrowing, conversion or continuation of EurocurrencyTerm Benchmark Rate Loans denominated in Dollars, or (ii) five Business Days (or six
Business dDays in the case of a Special Notice Currency) prior to the requested date of such
Borrowing, conversion or continuation of EurocurrencyTerm Benchmark Rate
Loans denominated in Alternative Currencies, whereupon the Administrative Agent shall give prompt notice to the Lenders of such request and determine whether the requested Interest Period is acceptable to all of them. Not later than 11:00 a.m.
(i) three Business Days before the requested date of such Borrowing, conversion or continuation of EurocurrencyTerm
Benchmark Rate Loans denominated in Dollars having an Interest Period other than one, two, three or six months
in duration as provided in the definition of “Interest Period”, or (ii) four Business Days (or five Business dDays in the case of a Special Notice Currency) prior to the requested date of such Borrowing, conversion or continuation of EurocurrencyTerm Benchmark Rate Loans denominated in Alternative Currencies having an Interest Period other than one,
two, three or six months in duration as provided in the definition of “Interest Period”, the Administrative Agent shall notify the relevant Borrower (which notice may be by telephone) whether or not
the requested Interest Period has been consented to by all the Lenders. Each Borrowing of, conversion to or continuation of EurocurrencyTerm Benchmark Rate Loans shall be in an amount not less than the Minimum Principal Amount. Except as provided in Sections 2.04(c) and 2.05(c), each
Committed Borrowing of or conversion to Base Rate Committed Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof. Each Committed Loan Notice shall specify (i) whether such Borrower is requesting a
Committed Borrowing, a conversion of Committed Loans from one Type to the other, or a continuation of EurocurrencyTerm
Benchmark Rate Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Committed Loans to be
borrowed, converted or continued, (iv) the Type of Committed Loans to be borrowed or to which existing Committed Loans are to be converted, (v) if applicable, the duration of the Interest Period with respect thereto and (vi) the currency of the
Committed Loans to be borrowed. If the relevant Borrower fails to specify a currency in a Committed Loan Notice requesting a Borrowing, then the Committed Loans so requested shall be made in Dollars. If
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such Borrower fails to specify a Type of Committed Loan in a Committed Loan Notice or if such Borrower fails to give a timely notice requesting a conversion or continuation, then the
applicable Committed Loans shall be made as, or converted to, Base Rate Loans; provided, however, that in the case of a failure to timely request a continuation of Committed Loans denominated in an Alternative Currency, such Loans
shall be continued as EurocurrencyTerm Benchmark Rate Loans in their
original currency with an Interest Period of one month. Any automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable EurocurrencyTerm Benchmark Rate Loans. If such Borrower requests a Borrowing of, conversion to, or continuation of EurocurrencyTerm Benchmark Rate 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. No Committed Loan may be converted into or continued as a Committed Loan denominated in a different currency, but instead must be prepaid in the original currency of such Committed Loan and reborrowed in the other
currency.
(b) Following receipt of a Committed Loan Notice, the Administrative Agent shall promptly notify each Lender of the
amount (and currency) of its Applicable Percentage of the applicable Committed Loans, and if no timely notice of a conversion or continuation is provided by the applicable Borrower, the Administrative Agent shall notify each Lender of the details
of any automatic conversion to Base Rate Loans or continuation of Committed Loans denominated in a currency other than Dollars, in each case as described in the preceding subsection. In the case of a Committed Borrowing, each Lender shall make
the amount of its Committed Loan available to the Administrative Agent in Same Day Funds at the Administrative Agent’s Office for the applicable currency not later than 1:00 p.m, in the case of any Committed Loan denominated in Dollars other than
Base Rate Loans, and in the case of any Committed Loan denominated in Dollars that is a Base Rate Loan, not later than 2:00 p.m., and not later than the Applicable Time specified by the Administrative Agent in the case of any Committed Loan in an
Alternative Currency, in each case on the Business Day specified in the applicable Committed Loan Notice. Subject to satisfaction of the applicable conditions set forth in Section 4.02, the Administrative Agent shall make all funds so
received available to the Company or the Designated Borrower, as applicable, in like funds as received by the Administrative Agent no later than 5:00 p.m. on the Business Day specified in the applicable Committed Loan Notice either by (i)
crediting the account of such Borrower on the books of Bank of America with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to the Administrative Agent by such Borrower; provided,
however, that if, on the date the Committed Loan Notice with respect to such Borrowing denominated in Dollars is given by such Borrower, there are L/C Borrowings outstanding, then the proceeds of such Borrowing, first, shall be
applied to the payment in full of any such L/C Borrowings, and, second, shall be made available to the applicable Borrower as provided above.
(c) Subject to Section 3.05, a EurocurrencyTerm Benchmark Rate Loan may be continued or converted only on the last day of an Interest Period for such EurocurrencyTerm Benchmark Rate Loan. During the existence of an Event of Default, the Administrative Agent or Required Lenders may require that no Loans
may be converted to or continued as EurocurrencyTerm Benchmark Rate Loans
(whether in Dollars or any Alternative Currency) without the consent of the Required Lenders, and the Required Lenders may demand that any or all of the then outstanding EurocurrencyTerm Benchmark Rate Loans denominated in an
42
Alternative Currency be redenominated into Dollars in the amount of the Dollar Equivalent thereof, on the last day of the then current Interest Period with respect thereto.
(d) The Administrative Agent shall promptly notify the Borrowers and the Lenders of the interest rate applicable to any
Interest Period for EurocurrencyTerm Benchmark Rate Loans upon determination
of such interest rate. At any time that Base Rate Loans are outstanding, the Administrative Agent shall notify the Borrowers and the Lenders of any change in Bank of America’s prime rate used in determining the Base Rate promptly following the
public announcement of such change.
(e) After giving effect to all Committed Borrowings, all conversions of Committed Loans from one Type to the other, and
all continuations of Committed Loans as the same Type, there shall not be more than 10 Interest Periods in effect with respect to Committed Loans.
(f) With respect to SOFR or Term SOFR, the
Administrative Agent will have the right in consultation with the Company to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such
Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document; provided that, with respect to any such amendment effected, the Administrative Agent shall post each
such amendment implementing such Conforming Changes to the Borrowers, the L/C Issuers and the Lenders reasonably promptly after such amendment becomes effective.
2.03. [Intentionally Omitted].
2.04. 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
the agreements of the Lenders set forth in this Section 2.04, (1) from time to time on any Business Day during the period from the Effective Date until the Letter of Credit Expiration Date, to issue Letters of Credit denominated in
Dollars or in one or more Alternative Currencies for the account of the Borrowers or their respective Subsidiaries, and to amend or extend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to
honor drawings under the Letters of Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for the account of the Borrowers or their Subsidiaries and any drawings thereunder; provided that after giving
effect to any L/C Credit Extension with respect to any Letter of Credit, (w) the Total Outstandings shall not exceed the Aggregate Commitments, (x) the Revolving Credit Exposure of any Lender shall not exceed such Lender’s Commitment, (y) the
Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit, and (z) the aggregate amount of the outstanding Letters of Credit issued by any L/C Issuer shall not exceed its L/C Commitment. Each request by the
Borrowers for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrowers that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence.
Within the foregoing limits, and subject to
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the terms and conditions hereof, the Borrowers’ ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrowers may, during the foregoing period, obtain Letters of
Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall continue to be issued and outstanding pursuant hereto, and from and after the Effective Date shall be subject to
and governed by the terms and conditions hereof.
(ii) No L/C Issuer shall issue any Letter of Credit, if:
(A) subject to Section 2.04(b)(iii), the expiry date of such requested Letter of Credit would
occur more than 12 months after the date of issuance or last extension, unless the Required Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would occur after the Letter of Credit
Expiration Date, unless all the Lenders (other than any Defaulting Lender) have approved such expiry date.
(iii) No L/C Issuer shall be under any obligation to 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 Effective Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not
applicable on the Effective Date and which such L/C Issuer in good faith deems material to it;
(B) the issuance of such Letter of Credit would violate one or more Laws or policies of such L/C
Issuer applicable to letters of credit generally;
(C) except as otherwise agreed by the Administrative Agent and such L/C Issuer, such Letter of Credit
is in an initial stated amount less than $10,000, in the case of a commercial Letter of Credit, or $50,000, in the case of a standby Letter of Credit;
(D) except as otherwise agreed by the Administrative Agent and such L/C Issuer, such Letter of Credit
is to be denominated in a currency other than Dollars or an Alternative Currency; or
(E) any Lender is at that time a Defaulting Lender, unless such L/C Issuer has entered into
arrangements, including the delivery of Cash Collateral, satisfactory to such L/C Issuer (in its sole discretion) with the Company or such
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Lender to eliminate such L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.19(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, as it may elect in its sole discretion.
(iv) No L/C Issuer shall amend any Letter of Credit if such L/C Issuer would not be permitted at such
time to issue such Letter of Credit in its amended form under the terms hereof.
(v) No L/C Issuer shall be under any obligation to amend any Letter of Credit if (A) 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, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(vi) 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 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 such L/C Issuer with
respect to such acts or omissions, and (B) as additionally provided herein with respect to such L/C Issuer.
(b) 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 the case may be, upon the request of either
Borrower delivered to any L/C Issuer (with a copy to the Administrative Agent) in the form of a Letter of Credit Application, appropriately completed and signed by a Responsible Officer of such Borrower. Such Letter of Credit Application may be
sent by facsimile, by United States mail, by overnight courier, by electronic transmission using the system provided by the applicable L/C Issuer, by personal delivery or by any other means acceptable to such L/C Issuer. Such Letter of Credit
Application must be received by the applicable L/C Issuer and the Administrative Agent not later than 11:00 a.m. at least two Business Days (or such later date and time as the Administrative Agent and such L/C Issuer may agree in a particular
instance in their sole discretion) prior to the proposed issuance date or date of amendment, as the case may be. In the case of a request for an initial 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); (B) the amount and currency thereof; (C) the expiry date thereof; (D) the name and
address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; and (G) such
other matters as such L/C Issuer may reasonably request. In the case of a request for
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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 (A) the
Letter of Credit to be amended; (B) the proposed date of amendment thereof (which shall be a Business Day); (C) the nature of the proposed amendment; and (D) such other matters as such L/C Issuer may reasonably request. Additionally, the Borrowers
shall furnish to the applicable L/C Issuer and the Administrative Agent such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as such L/C Issuer or the
Administrative Agent may reasonably request. In the event that any Letter of Credit Application includes representations and warranties, covenants and/or events of default that do not contain the materiality qualifiers, exceptions or thresholds
that are applicable to the analogous provisions of this Agreement or other Loan Documents, or are otherwise more restrictive, the relevant qualifiers, exceptions and thresholds contained herein shall be incorporated therein or, to the extent more
restrictive, shall be deemed for the purposes of such Letter of Credit Application to be the same as the analogous provisions herein.
(ii) Unless the applicable L/C Issuer has received written notice from the
Administrative Agent or any Loan Party, at least one Business Day prior to the requested date of issuance or amendment of the applicable Letter of Credit, that
one or more applicable conditions contained in Article IV shall not then be satisfied, 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 the relevant
Borrower or its Subsidiary or enter into the applicable amendment, as the case may be, in each case in accordance with such L/C Issuer’s usual and customary business practices. Immediately upon the issuance of each Letter of Credit, each 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 the product of such Lender’s Applicable Percentage times the
amount of such Letter of Credit.
(iii) If a 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 (the “Non-Extension
Notice Date”) 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 Borrowers 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 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 Expiration Date; provided, however, that such L/C Issuer shall not permit any such extension if (A) such L/C Issuer has determined that it would not be permitted, or would have no
obligation, at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of clause (ii) or (iii) of Section 2.04(a) or otherwise), or (B) it has received
notice (which may be by telephone or in writing) on or before the day that is
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five Business Days before the Non-Extension Notice Date from the Administrative Agent, any Lender or the Borrowers that one or more of the applicable conditions specified in Section
4.02 is not then satisfied, and in each such case directing such L/C Issuer not to permit such extension.
(iv) Promptly 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 deliver to the Borrowers a true and complete copy of such Letter of Credit or amendment.
(v) In the event that any Letter of Credit is outstanding on the Additional Commitment Availability
Date, on such date, the Lenders shall be deemed to sell and purchase among each other, at par, an assignment of the outstanding risk participations in each such Letter of Credit (on a basis consistent with Section 2.01(b)) such that after
giving effect thereto, each Lender will hold a risk participation in each such Letter of Credit equal to its Applicable Percentage thereof (calculated including the Additional Commitments).
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under such
Letter of Credit, the applicable L/C Issuer shall notify the Borrowers and the Administrative Agent thereof. In the case of a Letter of Credit denominated in an Alternative Currency, the applicable Borrower shall reimburse applicable L/C Issuer
in such Alternative Currency, unless (A) such L/C Issuer (at its option) shall have specified in such notice that it will require reimbursement in Dollars and the relevant Borrower shall have agreed to make such payment in Dollars, or (B) in the
absence of any such requirement for reimbursement in Dollars, the Borrowers shall have notified such L/C Issuer promptly following receipt of the notice of drawing that the Borrowers will reimburse such L/C Issuer in Dollars. In the case of any
such reimbursement in Dollars of a drawing under a Letter of Credit denominated in an Alternative Currency, the applicable L/C Issuer shall notify the Borrowers of the Dollar Equivalent of the amount of the drawing promptly following the
determination thereof. Not later than 5:00 p.m. on the date of any payment by the applicable L/C Issuer under a Letter of Credit to be reimbursed in an Alternative Currency (each such date, an “Honor Date”), the applicable Borrower shall
reimburse such L/C Issuer through the Administrative Agent in an amount equal to the amount of such drawing and in the applicable currency, provided that if notice of such drawing is not provided to the relevant Borrower prior to 1:00
p.m. on the Honor Date, then such Borrower shall reimburse such L/C Issuer through the Administrative Agent in an amount equal to the amount of such drawing in the next succeeding Business Day and such extension of time shall be reflected in
computing fees in respect of any such Letter of Credit plus interest. If the applicable Borrower fails to so reimburse the applicable L/C Issuer by such time, the Administrative Agent shall promptly notify each Lender of the Honor Date, the
amount of the unreimbursed drawing (expressed in Dollars in the amount of the Dollar Equivalent thereof in the case of a Letter of Credit denominated in an Alternative Currency) (the “Unreimbursed Amount”), and the amount of such Lender’s
Applicable Percentage thereof. In such event, the
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applicable Borrower shall be deemed to have requested a Committed Borrowing of Base Rate Loans to be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount,
without regard to the minimum and multiples specified in Section 2.02 for the principal amount of Base Rate Loans, but subject to the amount of the unutilized portion of the Aggregate Commitments and the conditions set forth in Section
4.02 (other than the delivery of a Committed Loan Notice). Any notice given by the applicable L/C Issuer or the Administrative Agent pursuant to this Section 2.04(c)(i) may be given by telephone if immediately confirmed in writing; provided
that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice.
(ii) Each Lender (including Lenders acting as L/C Issuers) shall upon any notice pursuant to Section
2.04(c)(i) make funds available (and the Administrative Agent may apply Cash Collateral provided for this purpose) to the Administrative Agent for the account of the applicable L/C Issuer, in Dollars, at the Administrative Agent’s Office
for Dollar-denominated payments in an amount equal to its Applicable Percentage of the Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified in such notice by the Administrative Agent, whereupon, subject to the provisions of
Section 2.04(c)(iii), each Lender that so makes funds available shall be deemed to have made a Base Rate Committed Loan to the relevant Borrower in such amount. The Administrative Agent shall remit the funds so received to the applicable
L/C Issuer in Dollars.
(iii) With respect to any Unreimbursed Amount that is not fully refinanced by a Committed Borrowing of
Base Rate Loans because the relevant conditions set forth in Section 4.02 cannot be satisfied or for any other reason, the applicable 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). In such event, each Lender’s payment to the Administrative Agent for the account of the applicable L/C Issuer
pursuant to Section 2.04(c)(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 2.04.
(iv) Until each Lender funds its Committed Loan or L/C Advance pursuant to this Section 2.04(c)
to reimburse the applicable L/C Issuer for any amount drawn under any Letter of Credit, interest in respect of such Lender’s Applicable Percentage of such amount shall be solely for the account of such L/C Issuer.
(v) Each Lender’s obligation to make Committed Loans or L/C Advances to reimburse the applicable L/C
Issuer for amounts drawn under Letters of Credit, as contemplated by this Section 2.04(c), 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 any L/C Issuer, the Borrowers, any Subsidiary 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 Lender’s obligation to make Committed Loans pursuant to this Section 2.04(c) is subject to the
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conditions set forth in Section 4.02 (other than delivery by the Borrowers of a Committed Loan Notice). No such making of an L/C Advance shall relieve or otherwise impair
the obligation of the applicable Borrower to reimburse any L/C Issuer for the amount of any payment made by such Issuer under any Letter of Credit, together with interest as provided herein.
(vi) If any 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 2.04(c) by the time specified in Section 2.04(c)(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 applicable Overnight Rate from time to time in effect. If such Lender pays such amount, the amount so paid (excluding any such interest payable by the Lender to
the Administrative Agent) shall constitute such Lender’s Committed Loan included in the relevant Committed Borrowing or L/C Advance in respect of the relevant L/C Borrowing, as the case may be. A certificate of any L/C Issuer submitted to any
Lender (through the Administrative Agent) with respect to any amounts owing under this clause (vi) shall be conclusive absent demonstrable error.
(d) Repayment of Participations.
(i) At any time after any L/C Issuer has made a payment under any Letter of Credit and has received
from any Lender such Lender’s L/C Advance in respect of such payment in accordance with Section 2.04(c), if 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 Borrowers or otherwise, including proceeds of Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent will distribute to such Lender its Applicable Percentage thereof in
Dollars or the applicable Alternative Currency and in the same funds as those received by the Administrative Agent.
(ii) If any payment received by the Administrative Agent for the account of any L/C Issuer pursuant to
Section 2.04(c)(i) is required to be returned under any of the circumstances described in Section 10.05 (including pursuant to any settlement entered into by such L/C Issuer in its discretion), each Lender shall pay to the
Administrative Agent for the account of such L/C Issuer its Applicable Percentage 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 applicable Overnight Rate from time to time in effect. The obligations of the Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.
(e) Obligations Absolute. The obligation of each Borrower to reimburse any L/C Issuer for each drawing under each
Letter of Credit issued at the request of such Borrower and to
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repay each L/C Borrowing of such Borrower shall be absolute, unconditional and irrevocable, to the fullest extent permitted by applicable law 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 Loan
Document;
(ii) the existence of any claim, counterclaim, setoff, defense or other right that the Borrowers 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), any 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; provided that the Borrowers shall not be precluded from pursuing their
rights and remedies in separate actions;
(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) waiver by any L/C Issuer of any requirement that exists for such L/C Issuer’s protection and not
the protection of the Borrowers;
(v) honor of a demand for payment presented electronically even if such Letter of Credit requires that
demand be in the form of a draft;
(vi) any payment made by any L/C Issuer in respect of an otherwise complying item presented after the
date specified as the expiration date of, or the date by which documents must be received under, such Letter of Credit if, in each case, presentation after such date is authorized for such Letter of Credit by the UCC, the ISP or the UCP, as
applicable;
(vii) any payment by the applicable L/C Issuer under such Letter of Credit against presentation of a
draft or certificate that does not comply with the terms of such Letter of Credit; or any payment made by any 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, 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;
(viii) any adverse change in the relevant exchange rates or in the availability of the relevant
Alternative Currency to the Borrowers or any Subsidiary or in the relevant currency markets generally; or
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(ix) 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 discharge of, the Borrowers or any Subsidiary;
provided that the foregoing shall not excuse any L/C Issuer from liability to the Borrowers or any of their Subsidiaries to the extent of any direct damages (as opposed to consequential damages) suffered by
the Borrowers or any of their Subsidiaries that are caused by such L/C Issuer’s gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgment.
The applicable 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 such Borrower’s instructions or other irregularity, such Borrower will promptly notify the applicable L/C Issuer. The relevant 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.
(f) Role of L/C Issuer. Each Lender and each Borrower agree that, in paying any drawing under a Letter of Credit,
any L/C Issuer shall not have any responsibility to obtain any document (other than any sight draft, certificates and 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 L/C Issuers, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of any 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 all of the Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted in the absence of gross
negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Issuer Document. Each 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 issued at the request of such Borrower; provided, however, that this assumption is not intended to, and shall not, preclude such Borrower’s
pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of the L/C Issuers, the Administrative Agent, any of their respective Related Parties nor any correspondent,
participant or assignee of any L/C Issuer shall be liable or responsible for any of the matters described in clauses (i) through (ix) of Section 2.04(e); provided, however, that anything in such clauses to
the contrary notwithstanding, any Borrower may have a claim against any L/C Issuer, and any L/C Issuer may be liable to such Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages
suffered by such Borrower which such Borrower proves were caused by such L/C Issuer’s willful misconduct or gross negligence as determined by a court of competent jurisdiction by final and nonappealable judgment. In furtherance and not in
limitation of the foregoing, any L/C Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, 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. Any L/C Issuer may send a Letter of Credit or conduct any communication to or from the beneficiary via the Society for Worldwide Interbank Financial
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Telecommunication (“SWIFT”) message or overnight courier, or any other commercially reasonable means of communicating with a beneficiary.
(g) [Intentionally Omitted].
(h) Applicability of ISP and UCP; Limitation of Liability. Unless otherwise expressly agreed by the applicable L/C
Issuer and the applicable Borrower when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of the UCP
shall apply to each commercial Letter of Credit. Notwithstanding the foregoing, no L/C Issuer shall be responsible to the Borrowers for, and no L/C Issuer’s rights and remedies against the Borrowers shall be impaired by, any action or inaction of
any 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 Law or any order of a jurisdiction where any 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 ICC Banking Commission, the Bankers Association for Finance and Trade -International Financial
Services Association (BAFT-IFSA), or the Institute of International Banking Law & Practice, whether or not any Letter of Credit chooses such law or practice.
(i) Letter of Credit Fees. The applicable Borrower shall pay to the Administrative Agent for the account of each
Lender in accordance with its Applicable Percentage, in Dollars, a Letter of Credit fee (the “Letter of Credit Fee”) (i) for each commercial Letter of Credit the Applicable Rate for commercial Letters of Credit times the Dollar
Equivalent of the daily amount available to be drawn under such Letter of Credit, and (ii) for each standby Letter of Credit equal to the Applicable Rate for standby Letters of Credit times the Dollar Equivalent of the daily amount
available to be drawn under such Letter of Credit. For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be deemed to be the Dollar Equivalent of the stated amount
of such Letter of Credit in effect at such time. Letter of Credit Fees shall be (i) due and payable on the last Business Day of each March, June, September and December, commencing with the first such date to occur after the issuance of such
Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand and (ii) computed on a quarterly basis in arrears. If there is any change in the Applicable Rate during any quarter, the daily amount available to be drawn under
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.
(j) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuers. The applicable Borrower
shall pay directly to the relevant L/C Issuer for its own account, in Dollars, a fronting fee (i) with respect to each commercial Letter of Credit issued for the account of a Borrower or any of its Subsidiaries, at the rate per annum as
separately agreed between the relevant Borrower and the relevant L/C Issuer, computed on the Dollar Equivalent of the amount of such Letter of Credit, and payable upon the issuance thereof, (ii) with respect to any amendment of a commercial
Letter of Credit increasing the amount of such Letter of Credit, at a rate separately agreed between the relevant Borrower and the relevant L/C Issuer, computed on the Dollar Equivalent of the amount of such increase, and payable upon the
effectiveness of such amendment, and (iii) with respect to each standby Letter of Credit issued for the account of a
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Borrower or any of its Subsidiaries, at the rate per annum as separately agreed between such Borrower and the relevant L/C Issuer, computed on the Dollar Equivalent of the daily amount available to be drawn under
such Letter of Credit on a quarterly basis in arrears. Such fronting fee shall be due and payable on the first Business Day following the last day of each March, June, September and December, commencing with the first such date to occur after the
issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand. For purposes of computing the 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 applicable Borrower shall pay directly to the applicable L/C Issuer for its own account, in Dollars, the customary issuance, presentation, amendment and other processing fees, and
other standard costs and charges, of the applicable 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 three Business Days of demand and are
nonrefundable.
(k) Conflict with Issuer Documents. In the event of any conflict between the terms hereof and the terms of any
Issuer Document, the terms hereof shall control.
(l) Letters of Credit Issued for Subsidiaries. Notwithstanding that a Letter of Credit issued or outstanding
hereunder is in support of any obligations of, or is for the account of, a Subsidiary, the relevant Borrower shall be obligated to reimburse any L/C Issuer hereunder for any and all drawings under such Letter of Credit. Each Borrower hereby
acknowledges that the issuance of Letters of Credit for the account of Subsidiaries inures to the benefit of such Borrower, and that such Borrower’s business derives substantial benefits from the businesses of such Subsidiaries.
2.05. Swing Line Loans.
(a) The Swing Line. Subject to the terms and conditions set forth herein, the Swing Line Lender, in reliance upon
the agreements of the other Lenders set forth in this Section 2.05, shall make loans in Dollars (each such loan, a “Swing Line Loan”) to any Borrower from time to time on any Business Day during the Availability Period in an
aggregate amount not to exceed at any time outstanding the amount of the Swing Line Sublimit; provided, however, that (x) after giving effect to any Swing Line Loan, (i) the Total Outstandings shall not exceed the Aggregate
Commitments, (ii) the Revolving Credit Exposure of any Lender shall not exceed such Lender’s Commitment, and (iii) the aggregate outstanding principal amount of all Loans made by the Swing Line Lender plus the aggregate L/C Obligations owing to
the Swing Line Lender (or any of its Affiliates) shall not exceed such Lender’s Commitment, (y) such Borrower shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan and (z) the Swing Line Lender shall not
be under any obligation to make any Swing Line Loan if it shall determine (which determination shall be conclusive and binding absent manifest error) that it has, or by such Credit Extension may have, Fronting Exposure. Within the foregoing
limits, and subject to the other terms and conditions hereof, each Borrower may borrow under this Section 2.05, prepay under Section 2.06, and reborrow under this Section 2.05. Each Swing Line Loan shall be a Base Rate
Loan. Immediately upon the making of a Swing Line Loan, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the
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Swing Line Lender a risk participation in such Swing Line Loan in an amount equal to the product of such Lender’s Applicable Percentage times the amount of such Swing Line Loan.
(b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon the applicable Borrower’s irrevocable
notice to the Swing Line Lender and the Administrative Agent, which may be given by (A) telephone or (B) by a Swing Line Loan Notice; provided that any telephonic notice must be confirmed promptly by delivery to the Swing Line Lender and
the Administrative Agent of a Swing Line Loan Notice. Each such Swing Line Loan Notice must be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the requested borrowing date, and shall specify (i) the
amount to be borrowed, which shall be a minimum of $1,000,000, and (ii) the requested borrowing date, which shall be a Business Day. Promptly after receipt by the Swing Line Lender of any telephonic Swing Line Loan Notice, the Swing Line Lender
will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also received such Swing Line Loan Notice and, if not, the Swing Line Lender will notify the Administrative Agent of the contents thereof.
Unless the Swing Line Lender has received notice (by telephone or in writing) from the Administrative Agent (including at the request of any Lender) prior to 2:00 p.m. on the date of the proposed Swing Line Borrowing (A) directing the Swing Line
Lender not to make such Swing Line Loan as a result of the limitations set forth in the first proviso to the first sentence of Section 2.05(a), or (B) that one or more of the applicable conditions specified in Section 4.02 is not
then satisfied, then, subject to the terms and conditions hereof, the Swing Line Lender will, not later than 3:00 p.m. on the borrowing date specified in such Swing Line Loan Notice, make the amount of its Swing Line Loan available to the
applicable Borrower at its office by crediting the account of such Borrower on the books of the Swing Line Lender in Same Day Funds.
(c) Refinancing of Swing Line Loans.
(i) The Swing Line Lender at any time in its sole and absolute discretion may request, on behalf of
the applicable Borrower (which hereby irrevocably authorizes the Swing Line Lender to so request on its behalf), that each Lender make a Base Rate Committed Loan in an amount equal to such Lender’s Applicable Percentage of the amount of Swing
Line Loans then outstanding. Such request shall be made in writing (which written request shall be deemed to be a Committed Loan Notice for purposes hereof) and in accordance with the requirements of Section 2.02, without regard to the
minimum and multiples specified therein for the principal amount of Base Rate Loans, but subject to the unutilized portion of the Aggregate Commitments and the conditions set forth in Section 4.02. The Swing Line Lender shall furnish the
applicable Borrower with a copy of the applicable Committed Loan Notice promptly after delivering such notice to the Administrative Agent. Each Lender shall make an amount equal to its Applicable Percentage of the amount specified in such
Committed Loan Notice available to the Administrative Agent in Same Day Funds for the account of the Swing Line Lender at the Administrative Agent’s Office for Dollar-denominated payments not later than 1:00 p.m. on the day specified in such
Committed Loan Notice, whereupon, subject to Section 2.05(c)(ii), each Lender that so makes funds available shall be deemed to have made a Base Rate Committed Loan to the applicable Borrower in such amount. The Administrative Agent shall
remit the funds so received to the Swing Line Lender.
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(ii) If for any reason any Swing Line Loan cannot be refinanced by such a Committed Borrowing in
accordance with Section 2.05(c)(i), the request for Base Rate Committed Loans submitted by the Swing Line Lender as set forth herein shall be deemed to be a request by the Swing Line Lender that each of the Lenders fund its risk
participation in the relevant Swing Line Loan and each Lender’s payment to the Administrative Agent for the account of the Swing Line Lender pursuant to Section 2.05(c)(i) shall be deemed payment in respect of such participation.
(iii) If any Lender fails to make available to the Administrative Agent for the account of the Swing
Line Lender any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.05(c) by the time specified in Section 2.05(c)(i), the Swing Line Lender 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 the Swing Line Lender at a rate per
annum equal to the applicable Overnight Rate from time to time in effect. If such Lender pays such amounts, the amount so paid (excluding such interest payable by the Lender to the Administrative Agent) shall constitute such Lender’s Committed
Loan included in the relevant Committed Borrowing or funded participation in the relevant Swing Line Loan, as the case may be. A certificate of the Swing Line Lender submitted to any Lender (through the Administrative Agent) with respect to any
amounts owing under this clause (iii) shall be conclusive absent demonstrable error.
(iv) Each Lender’s obligation to make Committed Loans or to purchase and fund risk participations in
Swing Line Loans pursuant to this Section 2.05(c) 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 the Swing Line Lender, any 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. No such
funding of risk participations shall relieve or otherwise impair the obligation of each Borrower to repay Swing Line Loans, together with interest as provided herein.
(d) Repayment of Participations.
(i) At any time after any Lender has purchased and funded a risk participation in a Swing Line Loan,
if the Swing Line Lender receives any payment on account of such Swing Line Loan, the Swing Line Lender will distribute to such Lender its Applicable Percentage thereof in the same funds as those received by the Swing Line Lender.
(ii) If any payment received by the Swing Line Lender in respect of principal or interest on any Swing
Line Loan is required to be returned by the Swing Line Lender under any of the circumstances described in Section 10.05 (including pursuant to any settlement entered into by the Swing Line Lender in its discretion), each Lender shall pay
to the Swing Line Lender its Applicable Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned, at a rate per annum equal to the applicable Overnight Rate.
The
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Administrative Agent will make such demand upon the request of the Swing Line Lender. The obligations of the Lenders under this clause shall survive the payment in full of the
Obligations and the termination of this Agreement.
(e) Interest for Account of Swing Line Lender. The Swing Line Lender shall be responsible for invoicing the
applicable Borrower for interest on the Swing Line Loans. Until each Lender funds its Base Rate Committed Loan or risk participation pursuant to this Section 2.05 to refinance such Lender’s Applicable Percentage of any Swing Line Loan,
interest in respect of such Applicable Percentage shall be solely for the account of the Swing Line Lender.
(f) Payments Directly to Swing Line Lender. The applicable Borrower shall make all payments of principal and
interest in respect of the Swing Line Loans directly to the Swing Line Lender.
(g) Designated Borrower. The Designated Borrower shall have no liability to repay any Swing Line Loans requested
by the Company.
2.06. Prepayments.
(a) Each Borrower may, upon notice from such Borrower to the Administrative Agent, at any time or from time to time
voluntarily prepay Committed Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than (A) 4:00 p.m. three Business Days prior to any date of prepayment
of EurocurrencyTerm Benchmark Rate Loans denominated in Dollars, (B) 4:00
p.m. four Business Days (or five, in the case of prepayment of Loans denominated in Special Notice Currencies) prior to any date of prepayment of EurocurrencyTerm Benchmark Rate Loans denominated in Alternative Currencies, and (C) 12:00 noon on the date of prepayment of Base Rate Committed Loans; (ii) any
prepayment of EurocurrencyTerm Benchmark Rate Loans shall be in a principal
amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof; and (iii) any prepayment of Base Rate Committed Loans shall be in a principal amount of $500,000 or 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 and the Type(s) of Committed Loans to be prepaid and, if EurocurrencyTerm Benchmark Rate Loans are to be prepaid, the Interest Period(s) of such Loans. The Administrative Agent will promptly notify each Lender of
its receipt of each such notice, and of the amount of such Lender’s Applicable Percentage of such prepayment. If such notice is given by such Borrower, such Borrower shall make such prepayment on the date specified therein; provided that
any such notice may state that it is conditioned upon the incurrence of other indebtedness or the receipt of proceeds from another transaction, in which case such notice may be revoked by the Company (by notice to the Administrative Agent) if
such condition is not satisfied. Any prepayment of a EurocurrencyTerm Benchmark Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.05. Subject to Section 2.19(a), each such prepayment shall be applied to
the Committed Loans of the Lenders in accordance with their respective Applicable Percentages.
(b) The Company may, upon notice to the Swing Line Lender (with a copy to the Administrative Agent), at any time or from
time to time, voluntarily prepay Swing Line Loans in
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whole or in part without premium or penalty; provided that such prepayment shall be in a minimum principal amount of $100,000. If such notice is given by the Company, the Company shall make such prepayment
and the payment amount specified in such notice shall be due and payable on the date specified therein.
(c) If the Administrative Agent notifies the Borrowers at any time that the Total Outstandings at such time exceed an
amount equal to 105% of the Aggregate Commitments then in effect, then, within two Business Days after receipt of such notice, the Borrowers shall prepay Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount sufficient to
reduce such Outstanding Amount as of such date of payment to an amount not to exceed 100% of the Aggregate Commitments then in effect; provided, however, that no Borrower shall be required to Cash Collateralize the L/C Obligations
pursuant to this Section 2.06(c) unless, after the prepayment in full of the Loans, the Total Outstandings exceed the Aggregate Commitments then in effect.
2.07. Termination or Reduction of Commitments.
(a) The Company may, upon notice to the Administrative Agent, terminate the Aggregate Commitments, or from time to time
permanently reduce the Aggregate Commitments; provided that (i) any such notice shall be received by the Administrative Agent not later than 11:00 a.m. three Business Days (or, solely to the extent that there are no Credit Extensions
outstanding in respect of the Commitments which are to be reduced or terminated, 12:00 noon) on the date of termination or reduction, provided further if any Outstanding Amount shall be denominated in an Alternative Currency or
Special Notice Currency and would be repaid in connection with such termination or reduction, the Administrative Agent shall receive such notice not later than 11:00 a.m. five Business Days prior to the date of termination or reduction; (ii) any
such partial reduction shall be in an aggregate amount of $5,000,000 or any whole multiple of $1,000,000 in excess thereof, (iii) the Company shall not terminate or reduce the Aggregate Commitments if, after giving effect thereto and to any
concurrent prepayments hereunder, the Total Outstandings would exceed the Aggregate Commitments, and (iv) if, after giving effect to any reduction of the Aggregate Commitments, the Letter of Credit Sublimit, or the Swing Line Sublimit exceeds the
amount of the Aggregate Commitments, such Sublimit shall be automatically reduced by the amount of such excess. The Administrative Agent will promptly notify the Lenders of any such notice of termination or reduction of the Aggregate Commitments.
The amount of any such Aggregate Commitment reduction shall not be applied to the Letter of Credit Sublimit or the Swing Line Sublimit unless otherwise specified by the Company. Any reduction of the Aggregate Commitments shall be applied to the
Commitment of each Lender according to its Applicable Percentage. All fees accrued until the effective date of any termination of the Aggregate Commitments shall be paid on the effective date of such termination.
(b) The Additional Commitments shall automatically terminate on the Additional Commitment Termination Date, unless the
Additional Commitment Availability Date shall have occurred on or prior thereto. Any termination of the Additional Commitments pursuant to this Section 2.07(b) shall be permanent. The Company shall notify the Administrative Agent upon
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the termination of the Additional Commitments pursuant to this Section 2.07(b) and the Administrative Agent shall promptly notify each Lender upon receipt of such notice.
2.08. Repayment of Loans.
(a) Each Borrower shall repay to the Lenders on the Maturity Date the aggregate principal amount of Committed Loans made
to such Borrower outstanding on such date.
(b) The Company shall repay each Swing Line Loan on the earlier to occur of (i) the date 10 Business Days after such Loan
is made and (ii) the Maturity Date; provided that on each date that a Committed Loan denominated in Dollars is made to a Borrower with an outstanding Swing Line Loan, such Borrower shall repay all Swing Line Loans then outstanding made to
it and the proceeds of any such Committed Borrowing shall be applied by the Administrative Agent to repay such Swing Line Loans outstanding. At any time that there shall exist a Defaulting Lender, immediately upon the request of the Swing Line
Lender, the Borrowers shall repay the outstanding Swing Line Loans in an amount sufficient to eliminate any Fronting Exposure in respect of such Swing Line Loans.
2.09. Interest.
(a) Subject to the provisions of subsection (b) below, (i) each EurocurrencyTerm Benchmark Rate Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to
the EurocurrencyTerm Benchmark Rate for such Interest Period plus the
Applicable Rate for EurocurrencyTerm Benchmark Rate Loans; (ii) each Base
Rate Committed Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate for Base Rate Loans; and (iii) each Swing Line Loan shall
bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate for Base Rate Loans.
(b) (i) If any amount of principal of any Loan is not paid when due, whether at stated maturity, by acceleration or
otherwise, such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.
(ii) If any amount (other than principal of any Loan) payable by any Borrower under any Loan Document
is not paid when due, whether at stated maturity, by acceleration or otherwise, and an Event of Default results from such failure to pay such amount when due, then upon the request of the Required Lenders, such amount shall thereafter bear
interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.
(iii) Accrued and unpaid interest on past due amounts (including interest on past due interest) shall
be due and payable upon demand.
(c) 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. Interest hereunder
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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.
2.10. Fees. In addition to certain fees described in subsections
(i) and (j) of Section 2.4:
(a) Commitment Fee. The Company shall pay to the Administrative Agent for the account of each Lender in accordance
with its Applicable Percentage, a commitment fee (the “Commitment Fee”) in Dollars equal to the Applicable Rate for Commitment Fees times the actual daily amount by which the Aggregate Commitments (including, for the purposes of
such calculation from and including the Effective Date until terminated, the Additional Commitments) exceed the sum of (i) the Outstanding Amount of Loans and (ii) the Outstanding Amount of L/C Obligations, subject to adjustment as provided in Section
2.19, provided that Swing Line Loans shall not be considered outstanding for purposes of determining the unused portion of the Aggregate Commitments. The Commitment Fee shall accrue at all times during the Availability Period,
including at any time during which one or more of the conditions in Article IV is not met, and shall be due and payable quarterly in arrears on the last Business Day of each March, June, September and December, commencing with the first
such date to occur after the Effective Date, and on the last day of the Availability Period, provided that any Commitment Fee accrued with respect to any of the Commitments of a Defaulting Lender during the period prior to the time such
Lender became a Defaulting Lender and unpaid at such time shall not be payable by the Company so long as such Lender shall be a Defaulting Lender except to the extent that such Commitment Fee shall otherwise have been due and payable by the
Company prior to such time, and provided further that no Commitment Fee shall accrue on any of the Commitments of a Defaulting Lender so long as such Lender shall be a Defaulting Lender. The commitment fee shall be calculated
quarterly in arrears, and if there is any change in the Applicable Rate during any quarter, the actual daily amount shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate
was in effect.
(b) Other Fees. The Company shall pay such fees in the amounts and at the times as specified in the Fee Letter.
2.11. Computation of Interest and Fees.
(a) All computations of interest for Base Rate Loans shall be made on the basis of a year of 365 or 366 days, as the case
may be, and actual days elapsed. All computations of interest for Eurocurrency Rate Loans denominated in Sterling shall be made on the basis of a year of 365 days 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 (which results in more fees or interest, as applicable, being paid than if computed on the basis
of a 365-day year), or, in the case of interest in respect of Committed Loans denominated in Alternative Currencies as to which market practice differs from the foregoing, in accordance with such market practice. 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 2.13(a), bear
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interest for one day. Each determination by the Administrative Agent of an interest rate or fee hereunder shall be prima facie evidence for all purposes, absent demonstrable error.
(b) If, as a result of any restatement of or other adjustment to the financial statements of the Company or for any other
reason, the Company or the Lenders determine that (i) the Consolidated Total Leverage Ratio as calculated by the Company as of any applicable date was inaccurate and (ii) a proper calculation of the Consolidated Total Leverage Ratio would have
resulted in higher pricing for such period, the Borrowers shall immediately and retroactively be obligated to pay to the Administrative Agent for the account of the applicable Lenders or any L/C Issuer, as the case may be, 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 any Borrower under the Bankruptcy Code of the United States, automatically and without further action by the Administrative
Agent, any Lender or any L/C Issuer), 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 paragraph shall not limit
the rights of the Administrative Agent, any Lender or any L/C Issuer, as the case may be, under Article VIII. The Borrowers’ obligations under this paragraph shall survive the termination of the Aggregate Commitments and the repayment of
all other Obligations hereunder for the limited period ending one month following the date of the Company’s annual audited financial statements which include the period during which such termination and repayment occurred.
2.12. Evidence of Debt.
(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, by the Administrative Agent in the ordinary course of business. The accounts or records maintained by the Administrative Agent and each Lender shall be prima facie evidence absent
demonstrable error of the amount of the Credit Extensions made by the Lenders to the Borrowers and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation
of the Borrowers 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 request of any Lender to a Borrower made through the Administrative Agent, such Borrower shall execute and deliver to such
Lender (through the Administrative Agent) a Note, which shall evidence such Lender’s Loans to such Borrower in addition to such accounts or records. Each Lender may attach schedules to a Note and endorse thereon the date, Type (if applicable),
amount, currency and maturity of its Loans and payments with respect thereto.
(b) In addition to the accounts and records referred to in subsection (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 and
Swing Line Loans. In the event of any conflict between the accounts and records maintained by the Administrative
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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.
2.13. Payments Generally; Administrative Agent’s Clawback.
(a) General. All payments to be made by the Borrowers shall be made free and clear of and without condition or
deduction for any counterclaim, defense, recoupment or setoff (other than with respect to Taxes which shall be governed solely by Section 3.01). Except as otherwise expressly provided herein and except with respect to principal of and
interest on Loans denominated in an Alternative Currency, all payments by the Borrowers hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the applicable Administrative
Agent’s Office in Dollars and in Same Day Funds not later than 2:00 p.m. on the date specified herein. Except as otherwise expressly provided herein, all payments by the Borrowers hereunder with respect to principal and interest on Loans
denominated in an Alternative Currency shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the applicable Administrative Agent’s Office in such Alternative Currency and in Same
Day Funds not later than 12:00 noon on the dates specified herein. If, for any reason, any Borrower is prohibited by any Law from making any required payment hereunder in an Alternative Currency, such Borrower shall make such payment in Dollars
in the Dollar Equivalent of the Alternative Currency payment amount. The Administrative Agent will promptly distribute to each Lender its Applicable Percentage (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 (i) after 2:00 p.m., in the case of payments in Dollars, or (ii) after 12:00 noon in the case of payments in an Alternative Currency,
shall in each case 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 any 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 the case may be.
(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 Committed Borrowing of EurocurrencyTerm Benchmark Rate Loans (or, in the case of any Committed Borrowing of Base Rate Loans, prior to 12:00 noon on the date of such Committed Borrowing) that such Lender will not make available to the Administrative Agent such Lender’s
share of such Committed Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 (or, in the case of a Committed Borrowing of Base Rate Loans, that such
Lender has made such share available in accordance with and at the time required by Section 2.02) and may, in reliance upon such assumption, make available to the applicable Borrower a corresponding amount. In such event, if a Lender has
not in fact made its share of the applicable Committed Borrowing available to the Administrative Agent, then the applicable Lender agrees to pay to the Administrative Agent forthwith on demand such corresponding amount in Same Day Funds with
interest thereon, for each day from and including the date such amount is made available to such Borrower to but excluding the date of payment to the Administrative Agent, at the Overnight Rate from time to time in effect. If such Lender does not
pay such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the
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applicable Borrower, and such Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the compensation period at a rate per annum equal to the rate of interest applicable to the
applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or any Borrower may have against any Lender as a result of any
default by such Lender hereunder. If such Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to such Borrower the amount of such interest
paid by such Borrower for such period. If such Lender pays its share of the applicable Committed Borrowing to the Administrative Agent, then the amount so paid (excluding such interest payable by such Lender to the Administrative Agent) shall
constitute such Lender’s Committed Loan included in such Committed Borrowing. Any payment by such Borrower shall be without prejudice to any claim such Borrower may have against a Lender that shall have failed to make such payment to the
Administrative Agent.
(ii) Payments by Borrowers; Presumptions by Administrative Agent. Unless the Administrative
Agent shall have received notice from a Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or any L/C Issuer hereunder that such Borrower will not make such payment, the
Administrative Agent may assume that such Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the applicable L/C Issuer, as the case may be, the amount due. In
such event, if such Borrower has not in fact made such payment, then each of the Lenders or the applicable L/C Issuer, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such
Lender or such L/C Issuer, in Same Day Funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the Overnight Rate.
With respect to any payment that the Administrative Agent makes for the account of the Lenders or L/C Issuers hereunder as to which the Administrative Agent
determines (which determination shall be conclusive absent manifest error) that any of the following applies (such payment referred to as the “Rescindable Amount”): (1) the applicable Borrower has not in fact made such payment; (2) the
Administrative Agent has made a payment in excess of the amount so paid by the applicable Borrower (whether or not then owed); or (3) the Administrative Agent has for any reason otherwise erroneously made such payment; then each of the Lenders or
L/C Issuers, as applicable, severally agrees to repay to the Administrative Agent forthwith on demand the Rescindable Amount so distributed to such Lender in immediately available funds with interest thereon, for each day from and including the
date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, (i) in the case of amounts denominated in Dollars at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent
in accordance with banking industry rules on interbank compensation and (ii) in the case of amounts denominated in any other currency, a rate determined by the Administrative Agent in accordance with banking industry rules on interbank
compensation for such currency.
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A notice of the Administrative Agent to any Lender or Borrower with respect to any amount owing under this subsection (b) shall be conclusive, absent demonstrable 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 to any Borrower as provided in the foregoing provisions of this Article II, and such funds are not made available to such 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 promptly return such funds (in like funds as received from such Lender) to such Lender, without
interest.
(d) Obligations of Lenders Several. The obligations of the Lenders hereunder to make Committed Loans, to fund
participations in Letters of Credit and Swing Line Loans and to make payments pursuant to Section 10.04(c) are several and not joint. The failure of any Lender to make any Committed Loan, to fund any such participation or to make any
payment under Section 10.04(c) 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
Committed Loan, to purchase its participation or to make its payment under Section 10.04(c).
(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.
2.14. Sharing of Payments by Lenders. If any Lender shall, by
exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of the Committed Loans made by it, or the participations in L/C Obligations or in Swing Line Loans held by it resulting
in such Lender’s receiving payment of a proportion of the aggregate amount of such Committed Loans or participations and accrued interest thereon greater than its pro rata share thereof as provided herein, then the Lender receiving such
greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Committed Loans and subparticipations in L/C Obligations and Swing Line Loans of the other Lenders, or make
such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Committed Loans and
other amounts owing them, provided that:
(i) if any such participations or subparticipations are purchased and all or any portion of the
payment giving rise thereto is recovered, such participations or subparticipations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and
(ii) the provisions of this Section shall not be construed to apply to (x) any payment made by or on
behalf of a Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender), (y) the application of Cash Collateral provided for in
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Section 2.18 or (z) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Committed Loans or subparticipations in
L/C Obligations or Swing Line Loans to any assignee or participant.
Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against such Loan Party rights of setoff and counterclaim with respect to such participation to the extent set forth herein as fully as if such Lender were a direct creditor of such Loan Party in the amount of
such participation.
2.15. Designated Borrower.
(a) Hasbro SA, a corporation organized under the laws of Switzerland and wholly-owned subsidiary of the Company, shall be
the “Designated Borrower” hereunder and may borrow Loans for its account on the terms and conditions set forth in this Agreement.
(b) The Obligations of the Company and the Designated Borrower shall be several in nature.
2.16. Increase in Commitments.
(a) Request for Increase. Provided there exists no Default, upon notice to the Administrative Agent (which
shall promptly notify the Lenders), the Company may through the Administrative Agent from time to time, request any one or more of the Lenders to increase its Commitment by an amount (for all such requests) not exceeding $500,000,000 in the
aggregate; provided that any such request for an increase shall be in a minimum amount of $50,000,000. At the time of sending such notice, the Company (in consultation with the Administrative Agent) shall specify the time period within
which each Lender is requested to respond. After giving effect to all such increases, the Aggregate Commitments shall not exceed (x) prior to the Additional Commitment Availability Date, $1,600,000,000, and (y) on and following the Additional
Commitment Availability Date, $2,000,000,000. If the Company has requested an increase from the Lenders and such requested increase, or any portion thereof, is declined by one or more Lenders, the Company may, to the extent necessary to obtain
the full amount of the requested increase, invite additional Eligible Assignees reasonably satisfactory to the Administrative Agent to become Lenders (“Additional Lenders”), may request such accepting Lenders to commit to the full amount
of the requested increase, or may reduce the amount of the requested increase.
(b) Lender Elections to Increase. Each Lender shall notify the Administrative Agent in writing within the
specified time period whether or not it agrees in its sole discretion to increase its Commitment and, if so, whether by an amount equal to, greater than, or less than its Applicable Percentage of such requested increase. Any Lender not responding
in writing within such time period shall be deemed to have declined to increase its Commitment.
(c) Notification by Administrative Agent; Effective Date and Allocations; Supplement. The Administrative Agent
shall notify the Company and each Lender of the Lenders’ responses to each request made hereunder. If the Aggregate Commitments are increased in accordance with this Section, (i) the Administrative Agent and the Company shall
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determine the effective date (the “Increase Effective Date”) and the final allocation of such increase, (ii) the Administrative Agent shall promptly notify the Company and the Lenders and any Additional Lender
of the final allocation of such increase with the consent of each L/C Issuer and the Swing Line Lender and the Increase Effective Date and (iii) the Borrowers, the Administrative Agent and each increasing Lender and Additional Lender shall execute
and deliver a supplement to this Agreement substantially in the form of Exhibit J hereto, whereupon (y) in the case of an increasing Lender, each such increasing Lender’s Commitment shall be increased to the amount set forth in such
supplement and (z) in the case of an Additional Lender, such Additional Lender shall become a party hereto and shall for all purposes of the Loan Documents be deemed a “Lender” having a Commitment as set forth in such supplement. Any increase, and
any amendments made to evidence such increase, shall not require the consent of any Lender not participating in such increase.
(d) Conditions to Effectiveness of Increase. As a condition precedent to such increase, (i) the Company shall
deliver to the Administrative Agent a certificate of each Loan Party dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (x) certifying and attaching the resolutions
adopted by such Loan Party approving or consenting to such increase, and (y) in the case of the Borrowers, certifying that, before and after giving effect to such increase, (A) the representations and warranties contained in Article V and
the other Loan Documents are true and correct in all material respects (except that all representations and warranties that are qualified by materiality are true and correct in all respects) on and as of the Increase Effective Date, except to the
extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (or true and correct in all respects for any such representations and warranties that are
qualified by materiality) as of such earlier date and except that for purposes of this Section 2.16, the representations and warranties contained in Section 5.05 shall be deemed to refer to the most recent statements furnished
pursuant to Section 6.01(a), and (B) no Default exists and (ii) (x) upon the reasonable request of any Additional Lender made at least 10 Business Days prior to the Increase Effective Date, the Borrowers shall have provided to such
Additional Lender, and such Additional Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including,
without limitation, the PATRIOT Act, in each case at least 5 bBusiness dDays prior to the Increase Effective Date and (y) at least 5 Business Days prior to the
Increase Effective Date, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Additional Lender that so requests, a Beneficial Ownership Certification in relation to
such Loan Party. The Borrowers shall prepay any Committed Loans outstanding on the Increase Effective Date (and pay any additional amounts required pursuant to Section 3.05) to the extent necessary to keep the outstanding Committed Loans
ratable with any revised Applicable Percentages arising from any nonratable increase in the Commitments under this Section.
(e) Conflicting Provisions. This Section shall supersede any provisions in Section 2.14 or 10.01
to the contrary.
2.17. Funding. Subject to Section
10.06(b)(vii), each Lender may make (i) any Eurocurrency Rate Loan denominated in an Alternative Currency or (ii) any Loan to the Designated
Borrower by causing any of its domestic or foreign branches or foreign affiliates to
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make such Loan (whether or not such branch or affiliate is named as a lending office on the signature pages hereof); provided that in such event the obligation of the applicable
Borrower to repay such Eurocurrency Rate Loan or the obligation of the Designated Borrower to repay such Loan, as the case may be, shall nevertheless be
to such Lender and shall, for all purposes of this Agreement (including, without limitation, for purposes of the definition of “Required Lenders”) be deemed made by such Lender, to the extent of such
Eurocurrency Rate Loan or such Loan made to the Designated Borrower, as the case may be.
2.18. Cash Collateral.
(a) Certain Credit Support Events. If (i) any 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, (ii) as of the Letter of Credit Expiration Date, any L/C Obligation for any reason remains outstanding, (iii) the Borrowers shall be required to provide Cash Collateral pursuant
to Section 8.02(c), or (iv) there shall exist a Defaulting Lender, the Borrowers shall (A) in the case of clause (ii) above, immediately, (B) in the case of clause (iii) above, immediately following any request by the
Administrative Agent or any L/C Issuer and (C) in all other cases, within three Business Days following any request by the Administrative Agent or any L/C Issuer, provide Cash Collateral in an amount not less than the applicable Minimum
Collateral Amount (determined in the case of Cash Collateral provided pursuant to clause (iv) above, after giving effect to Section 2.19(a)(iv) and any Cash Collateral provided by the Defaulting Lender).
(b) Grant of Security Interest. The Company, and to the extent provided by any Defaulting Lender, such Defaulting
Lender, hereby grants to (and subjects to the control of) the Administrative Agent, for the benefit of the Administrative Agent, the L/C Issuers and the 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
2.18(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 or the applicable L/C Issuers as herein provided or that the total amount of
such Cash Collateral is less than the Minimum Collateral Amount, the Borrowers will, promptly upon demand by the Administrative Agent, pay or provide to the Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such
deficiency. All Cash Collateral (other than credit support not constituting funds subject to deposit) shall be maintained in blocked, non-interest bearing deposit accounts at Bank of America. The Administrative Agent may from time to time request
that the Company pay, and, if so requested, the Company agrees to promptly pay, all customary account opening, activity and other administrative fees and charges in connection with the maintenance and disbursement of Cash Collateral.
(c) Application. Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided
under any of this Section 2.18 or Section 2.04, 2.19 or 8.02 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
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the Cash Collateral was so provided, prior to any other application of such property as may otherwise be provided for herein.
(d) Release. Cash Collateral (or the appropriate portion thereof) provided to reduce Fronting Exposure or to
secure other obligations shall be released promptly following (i) the elimination of the applicable Fronting Exposure 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 10.06(b)(vi))) or (ii) the determination by the Administrative Agent and the applicable L/C Issuers that there exists excess Cash Collateral; provided, however, the
Person providing Cash Collateral and the applicable L/C Issuers may agree that Cash Collateral shall not be released but instead held to support future anticipated Fronting Exposure or other obligations.
2.19. Defaulting Lenders.
(a) Adjustments. 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) Waivers and Amendments. Such Defaulting Lender’s right to approve or disapprove any
amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definition of “Required Lenders” and Section 10.01.
(ii) Defaulting Lender Waterfall. Any payment of principal, interest, fees or other amounts
received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant
to Section 10.08 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the
Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any L/C Issuer or Swing Line Lender hereunder; third, to Cash Collateralize each L/C Issuer’s Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.18; fourth, as the applicable Borrower may
elect (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Company, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations
with respect to Loans under this Agreement and (y) Cash Collateralize the L/C Issuers’ future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with Section
2.18; sixth, to the payment of any amounts owing to the Lenders, the L/C Issuers or the Swing Line Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, any
L/C Issuer or the Swing Line Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of
Default exists, to the payment of any amounts owing to the Borrowers as a result of any judgment
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of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement;
and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or L/C
Borrowings in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.02 were
satisfied or waived, such payment shall be applied solely to pay the Loans of, and L/C Obligations 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 Obligations owed to, such
Defaulting Lender until such time as all Loans and funded and unfunded participations in L/C Obligations and Swing Line Loans are held by the Lenders pro rata in accordance with the Commitments hereunder without giving effect to Section
2.19(a)(iv). 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 2.19(a)(ii) shall
be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(iii) Certain Fees.
(A) No Defaulting Lender shall be entitled to receive any fee payable under Section 2.10(a)
for any period during which that Lender is a Defaulting Lender (and the Borrowers shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender).
(B) Each Defaulting Lender shall be entitled to receive Letter of Credit Fees for any period during
which that Lender is a Defaulting Lender only to the extent allocable to its Applicable Percentage of the stated amount of Letters of Credit for which it has provided Cash Collateral pursuant to Section 2.18.
(C) With respect to any Letter of Credit Fee not required to be paid to any Defaulting Lender pursuant
to clause (A) or (B) above, the Borrowers shall pay to each Non-Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s participation in L/C Obligations
or Swing Line Loans that has been reallocated to such Non-Defaulting Lender pursuant to clause (iv) below, (y) pay to each L/C Issuer and Swing Line Lender, as applicable, the amount of any such fee otherwise payable to such Defaulting
Lender to the extent allocable to such L/C Issuer’s or Swing Line Lender’s Fronting Exposure to such Defaulting Lender, and (z) not be required to pay the remaining amount of any such fee.
(iv) Reallocation of Applicable Percentages to Reduce Fronting Exposure. All or any part of
such Defaulting Lender’s participation in L/C Obligations and Swing Line Loans shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable Percentages (calculated without regard to such Defaulting Lender’s
Commitment) but only to the extent that such reallocation does not cause the aggregate Revolving Credit Exposure of any Non-Defaulting Lender to exceed such
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Non-Defaulting Lender’s Commitment. Subject to Section 10.20, 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.
(v) Cash Collateral, Repayment of Swing Line Loans. If the reallocation described in clause
(a)(iv) above cannot, or can only partially, be effected, the Company shall, without prejudice to any right or remedy available to it hereunder or under applicable Law, (x) first, prepay Swing Line Loans in an amount equal to the Swing Line
Lenders’ Fronting Exposure and (y) second, Cash Collateralize the L/C Issuers’ Fronting Exposure in accordance with the procedures set forth in Section 2.18.
(b) Defaulting Lender Cure. If the Company, the Administrative Agent, the Swing Line Lender and each L/C Issuer
agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may
include arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to
be necessary to cause the Committed Loans and funded and unfunded participations in Letters of Credit and Swing Line Loans to be held pro rata by the Lenders in accordance with their Applicable Percentages (without giving effect to Section
2.19(a)(iv)), whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Company 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’s having been a Defaulting Lender.
(c) New Swing Line Loans/Letters of Credit. So long as any Lender is a Defaulting Lender, (i) the Swing Line
Lender shall not be required to fund any Swing Line Loans unless it is satisfied that it will have no Fronting Exposure after giving effect to such Swing Line Loan and (ii) no L/C Issuer shall be required to issue, extend, increase, reinstate or
renew any Letter of Credit unless it is satisfied that it will have no Fronting Exposure after giving effect thereto.
2.20. Extension of Maturity Date.
(a) Requests for Extension. The Company may, by notice to the Administrative Agent (who shall promptly notify the
Lenders) not earlier than 60 days and not later than 30 days prior to any anniversary of the Effective Date, request that the Maturity Date then in effect hereunder (the “Existing Maturity Date”) be extended for an additional one year from
the Existing Maturity Date; provided however, that, after the Effective Date, the Company may only request (in addition to the extension thereof pursuant to clause (b) of the definition of “Maturity Date”) up to two one-year
extensions of the Existing Maturity Date.
(b) Lender Elections to Extend. Each Lender, acting in its sole and individual discretion, shall, by notice to the
Administrative Agent given not earlier than 30 days prior to the
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applicable anniversary of the Effective Date and not later than the date (the “Notice Date”) that is 20 days prior to the applicable anniversary of the Effective Date, advise the Administrative Agent whether
or not such Lender agrees to such extension (and each Lender that determines not to so extend its Maturity Date, a “Non-Extending Lender”) shall notify the Administrative Agent of such fact promptly after such determination (but in any event
no later than the Notice Date) and any Lender that does not so advise the Administrative Agent on or before the Notice Date shall be deemed to be a Non-Extending Lender. The election of any Lender to agree to such extension shall not obligate any
other Lender to so agree.
(c) Notification by Administrative Agent. The Administrative Agent shall notify the Company of each Lender’s
determination under this Section no later than (i) the date 15 days after the day a request is made pursuant to Section 2.20(a) and (ii) the date 15 days prior to the applicable anniversary of the Effective Date (or, if such date is not a
Business Day, on the immediately preceding Business Day) or such date as the Company as may agree.
(d) Additional Commitment Lenders. The Company shall have the right to replace each Non-Extending Lender with, and
add as “Lenders” under this Agreement in place thereof, one or more Eligible Assignees (each, an “Additional Commitment Lender”) as provided in Section 10.13; provided that each of such Additional Commitment Lenders shall
enter into an Assignment and Assumption pursuant to which such Additional Commitment Lender shall undertake a Commitment (and, if any such Additional Commitment Lender is already a Lender, its Commitment shall be in addition to such Lender’s
Commitment hereunder on such date).
(e) Minimum Extension Requirement. If (and only if) the total of the Commitments of the Lenders that have agreed
so to extend their Maturity Date (each, an “Extending Lender”) and the additional Commitments of the Additional Commitment Lenders shall be more than 50% of the aggregate amount of the Commitments in effect immediately prior to the
applicable anniversary of the Effective Date, then, effective as of such anniversary of the Effective Date, the Maturity Date of each Extending Lender and of each Additional Commitment Lender shall be extended to the date falling one year after
the then effective Existing Maturity Date (except that, if such date is not a Business Day, such Maturity Date as so extended shall be the next preceding Business Day) and each Additional Commitment Lender shall thereupon become a “Lender” for
all purposes of this Agreement.
(f) Conditions to Effectiveness of Extensions. As a condition precedent to such extension, the Company shall
deliver to the Administrative Agent a certificate of each Loan Party dated as of the applicable anniversary of the Effective Date (in sufficient copies for each Extending Lender and each Additional Commitment Lender) signed by a Responsible
Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such extension and (ii) in the case of the Company, certifying that, before and after giving effect to such extension,
(A) the representations and warranties of (x) the Borrowers contained in Article V and (y) each Loan Party contained in each other Loan Document are true and correct in all material respects (except that all representations and warranties
that are qualified by materiality are true and correct in all respects) on and as of the applicable anniversary of the Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which
case they are true and correct in all material respects (or true and correct in all respects for any such representations or warranties
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that are qualified by materiality) as of such earlier date, and except that for purposes of this Section 2.20, the representations and warranties contained in Section 5.05 shall be deemed to refer to
the most recent statements furnished pursuant to Section 6.01(a), and (B) no Default exists or would result therefrom. In addition, on the Maturity Date of each Non-Extending Lender, the Borrower shall repay any Committed Loans outstanding
on such date made by such Non-Extending Lender.
(g) Conflicting Provisions. In connection with any extension of the Maturity Date, the Borrower, the
Administrative Agent and each eExtending Lender may make such amendments to this Agreement as the
Administrative Agent determines to be reasonably necessary to evidence the extension. This Section shall supersede any provisions in Section 2.14 or 10.01 to the contrary.
ARTICLE III.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01. Taxes.
(a) Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes.
(i) Any and all payments by or on account of any obligation of any Loan Party under any Loan Document
shall be made without deduction or withholding for any Taxes, except as required by applicable Laws. If any applicable Laws (as determined in the good faith discretion of the Administrative Agent or a Loan Party) require the deduction or
withholding of any Tax from any such payment by the Administrative Agent or a Loan Party, then the Administrative Agent or such Loan Party shall be entitled to make such deduction or withholding, upon the basis of the information and
documentation to be delivered pursuant to subsection (e) below.
(ii) If any Loan Party or the Administrative Agent shall be required by the Code to withhold or deduct
any Taxes, including both United States Federal backup withholding and withholding Taxes, from any payment, then (A) such Loan Party or the Administrative Agent shall withhold or make such deductions as are determined by the Administrative Agent
to be required based upon the information and documentation it has received pursuant to subsection (e) below, (B) such Loan Party or the Administrative Agent shall timely pay the full amount withheld or deducted to the relevant
Governmental Authority in accordance with the Code, and (C) to the extent that the withholding or deduction is made on account of Indemnified Taxes, the sum payable by the applicable Loan Party shall be increased as necessary so that after any
required withholding or the making of all required deductions for Indemnified Taxes (including deductions for Indemnified Taxes applicable to additional sums payable under this Section 3.01) the applicable Recipient receives an amount
equal to the sum it would have received had no such withholding or deduction been made.
(iii) If any Loan Party or the Administrative Agent shall be required by any applicable Laws other
than the Code to withhold or deduct any Taxes from any payment, then (A) such Loan Party or the Administrative Agent, as required by such Laws, shall
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withhold or make such deductions as are determined by it to be required based upon the information and documentation it has received pursuant to subsection (e) below, (B)
such Loan Party or the Administrative Agent, to the extent required by such Laws, shall timely pay the full amount withheld or deducted to the relevant Governmental Authority in accordance with such Laws, and (C) to the extent that the withholding
or deduction is made on account of Indemnified Taxes, the sum payable by the applicable Loan Party shall be increased as necessary so that after any required withholding or the making of all required deductions for Indemnified Taxes (including
deductions for Indemnified Taxes applicable to additional sums payable under this Section 3.01) the applicable Recipient receives an amount equal to the sum it would have received had no such withholding or deduction been made.
(b) Payment of Other Taxes by the Borrower. Without limiting the provisions of subsection (a) above, each
Borrower shall timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.
(c) Tax Indemnifications.
(i) Each Borrower shall, and does hereby, indemnify each Recipient, and shall make payment in respect
thereof within 10 days after written demand setting forth the amount and the reasons in reasonable detail 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 such Recipient, and any reasonable expenses arising therefrom or with respect thereto (other than penalties,
interest and expenses attributable to gross negligence or willful misconduct of the Recipient), whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate setting
forth the amount of such payment or liability and the reasons therefor in reasonable detail delivered to the Borrower by a Lender or any L/C Issuer (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on
behalf of a Lender or any L/C Issuer, shall be conclusive absent manifest error.
(ii) Each Lender and each L/C Issuer shall, and does hereby, severally indemnify, and shall make
payment in respect thereof within 10 days after written demand setting forth the amount and the reasons in reasonable detail therefor, (x) the Administrative Agent against any Indemnified Taxes attributable to such Lender or such L/C Issuer (but
only to the extent that any Borrower has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of each Borrower to do so), (y) the Administrative Agent and the Borrowers, as applicable,
against any Taxes attributable to such Lender’s failure to comply with the provisions of Section 10.06(d) relating to the maintenance of a Participant Register and (z) the Administrative Agent and the Borrowers, as applicable, against any
Excluded Taxes attributable to such Lender or such L/C Issuer, in each case, that are payable or paid by the Administrative Agent or a Borrower in connection with any Loan Document, and any penalties, interest and reasonable expenses arising
therefrom or with respect thereto,
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whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate setting forth the amount of such payment or liability
and the reasons therefor in reasonable detail delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender and each L/C Issuer hereby authorizes the Administrative Agent to set off and apply any and all
amounts at any time owing to such Lender or such L/C Issuer, as the case may be, under this Agreement or any other Loan Document against any amount due to the Administrative Agent under this clause (ii).
(d) Evidence of Payments. Upon request by a Borrower or the Administrative Agent, as the case may be, after any
payment of Taxes by such Borrower or by the Administrative Agent to a Governmental Authority as provided in this Section 3.01, such Borrower shall deliver to the Administrative Agent or the Administrative Agent shall deliver to such
Borrower, as the case may be, the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of any return required by Laws to report such payment or other evidence of such payment reasonably
satisfactory to such Borrower or the Administrative Agent, as the case may be.
(e) Status of Lenders; Tax Documentation.
(i) Each Lender that is entitled to an exemption from or reduction of withholding Tax with respect to
payments made under any Loan Document shall deliver to the Borrowers and the Administrative Agent, at the time or times prescribed by applicable Laws or when reasonably requested by the Borrowers or the Administrative Agent, such properly
completed and executed documentation prescribed by applicable Laws or by taxing authorities of any jurisdiction and such other information reasonably requested by the Borrowers 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 Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable Law or reasonably requested by
the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the
contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required
if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, for so long as the Company is a U.S. Person,
(A) any Lender that is a U.S. Person shall deliver to the Company and the Administrative Agent on or
prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Company or the Administrative Agent), executed
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originals of IRS Form W-9 certifying that such Lender is exempt from backup withholding Tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Company
and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable
request of the Company or the Administrative Agent), whichever of the following is applicable:
(1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United
States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN-E (or W-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the
“interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN-E (or W-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax
pursuant to the “business profits” or “other income” article of such tax treaty;
(2) executed originals of IRS Form W-8ECI;
(3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest
under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit H-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the
Company within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed originals of IRS Form W-8BEN-E (or
W-8BEN, as applicable); or
(4) to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form
W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN-E (or W-8BEN, as applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 or Exhibit H-3, IRS Form W-9, and/or other certification documents
from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may
provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Company
and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such
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Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Company or the Administrative Agent), executed originals of
any other form prescribed by applicable Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable Law to permit the
Company or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding
Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Company and the
Administrative Agent at the time or times prescribed by Law and at such time or times reasonably requested by the Company 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 Company or the Administrative Agent as may be necessary for the Company and the Administrative Agent to comply with their obligations under FATCA and to
determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to
FATCA after the date of this Agreement.
(iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section
3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers and the Administrative Agent in writing of its legal inability to do so.
(f) Treatment of Certain Refunds. Unless required by applicable Laws, at no time shall the Administrative Agent
have any obligation to file for or otherwise pursue on behalf of a Lender or an L/C Issuer, or have any obligation to pay to any Lender or any L/C Issuer, any refund of Taxes withheld or deducted from funds paid for the account of such Lender or
such L/C Issuer, as the case may be. If any Recipient determines in its reasonable discretion exercised in good faith that it has received a refund of any Taxes as to which it has been indemnified by any Borrower or with respect to which any
Borrower has paid additional amounts pursuant to this Section 3.01, it shall pay to such Borrower an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by such Borrower under this Section
3.01 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) incurred by such Recipient, and without interest (other than any interest paid by the relevant Governmental Authority with
respect to such refund), provided that such Borrower, upon the request of the Recipient, agrees to repay to the Recipient the amount paid over to such Borrower (plus any penalties, interest or other charges imposed by the relevant
Governmental Authority other than penalties, interest or charges attributable to gross negligence or willful misconduct of the Recipient) in the event the Recipient is required to repay such refund to such Governmental Authority. Notwithstanding
anything to the contrary in this subsection, in no event will the applicable Recipient be required to pay any amount to such
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Borrower pursuant to this subsection the payment of which would place the Recipient in a less favorable net after-Tax position than such Recipient would have been in if the Tax subject to indemnification and giving
rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This subsection shall not be construed to require any Recipient to make
available its tax returns (or any other information relating to its taxes that it deems confidential) to any Borrower or any other Person.
(g) Survival. Each party’s obligations under this Section 3.01 shall survive the resignation or
replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender or an L/C Issuer, the termination of the Commitments and the repayment, satisfaction or discharge of all other Obligations.
3.02. Illegality. If any Lender 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 EurocurrencyTerm Benchmark Rate Loans (whether denominated in Dollars or an Alternative Currency), or to determine or charge interest rates based upon the EurocurrencyTerm Benchmark Rate, or any Governmental Authority has imposed material
restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars or any Alternative Currency in the applicable interbank market, then, on notice thereof by such Lender to the Borrowers through the Administrative
Agent, (i) any obligation of such Lender to make or continue EurocurrencyTerm Benchmark Rate Loans in the affected currency or currencies or, in the case of EurocurrencyTerm Benchmark Rate Loans in Dollars, to convert Base Rate Committed Loans to EurocurrencyTerm Benchmark Rate Loans, shall be suspended and (ii) if such notice asserts the illegality of such Lender making or maintaining Base Rate Loans the interest rate on which is determined by reference to the EurocurrencyTerm Benchmark Rate component of the Base Rate, the interest rate on which Base Rate Loans
of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the EurocurrencyTerm Benchmark Rate component of the Base Rate, in each case until such Lender notifies the Administrative Agent and the Borrowers that the circumstances giving rise to
such determination no longer exist. Upon receipt of such notice, the Borrowers shall, upon demand from such Lender (with a copy to the Administrative Agent), (x) prepay or, if applicable and such Loans are denominated in Dollars, convert all such
EurocurrencyTerm Benchmark Rate Loans of such Lender to Base Rate Loans (the
interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the EurocurrencyTerm Benchmark Rate component of the Base Rate), either on the last day of the Interest Period therefor, if such Lender may lawfully continue to
maintain such EurocurrencyTerm Benchmark Rate Loans to such day, or
immediately, if such Lender may not lawfully continue to maintain such EurocurrencyTerm Benchmark Rate Loans and (y) if such notice asserts the illegality of such Lender determining or charging interest rates based upon the EurocurrencyTerm Benchmark Rate, the Administrative Agent shall during the period of such suspension compute the Base Rate applicable to such Lender without reference to
the EurocurrencyTerm Benchmark Rate component thereof until the
Administrative Agent is advised in writing by such Lender that it is no longer illegal for such Lender to determine or charge interest rates based upon the EurocurrencyTerm Benchmark Rate. Upon any such prepayment or conversion, the Borrowers
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shall also pay accrued interest on the amount so prepaid or converted, together with any additional amounts required pursuant to Section 3.05.
3.03. Inability to Determine Rates.
(a) If the Required
Lenders determine that for any reasonGenerally. If in connection with any request for a EurocurrencyTerm Benchmark Rate Loan or a conversion to or continuation thereof, unless and until a LIBOR(i) the Required Lenders determine that (A)(1) with respect to any such request for a Term
Benchmark Rate Loan denominated in Dollars, no Term SOFR Successor Rate is implementedhas been determined in accordance with Section 3.03(b), that (a) deposits (whether in Dollars or and that either the circumstances under Section 3.03(b)(i) or the Term SOFR Scheduled Unavailability Date has occurred with respect to Term SOFR or (2) with
respect to any such request for a Term Benchmark Rate Loan denominated in an Alternative Currency) are, not being offered to banks in the applicable offshore interbank market for suchAlternative cCurrency Successor Rate for the applicable amount and Interest Period of such Eurocurrency Rate Loan, (bRelevant Rate has been determined in accordance with Section 3.03(c) and that either the circumstances under Section 3.03(c)(i) or the Alternative Currency Scheduled Unavailability Date has occurred with respect to such Relevant Rate (as applicable) or (B)
adequate and reasonable means do not exist for determining the Eurocurrency Base Rate Term SOFR or the applicable
Relevant Rate, as applicable, for any determination date(s) or requested Interest Period, as applicable, in connection with a proposed Term Benchmark Rate Loan or (ii) the Administrative Agent or the
Required Lenders determine that for any reason Term SOFR or the Relevant Rate, as applicable, with respect to a Term Benchmark Rate Loan for any requested Interest Period with respect to a proposed Eurocurrency Rate Loan (whether denominated in Dollars or an Alternative Currency), or (c) the Eurocurrency Base
Rate for any requested Interest Period with respect to a proposed Eurocurrency Rate Loanor determination date(s) does
not adequately and fairly reflect the cost to such Lenders of funding such EurocurrencyTerm
Benchmark Rate Loan, the Administrative Agent shall forthwith give notice of such determination to the Borrowers and each Lender. Thereafter, (x) the obligation of the Lenders to make or maintain EurocurrencyTerm Benchmark Rate Loans in the affected currency or
currencies shall be suspended, and (y) in the event of a determination described in the preceding sentence with respect to the EurocurrencyTerm Benchmark Rate component of the Base Rate, the utilization of the EurocurrencyTerm Benchmark Rate component in determining the Base Rate shall be suspended, in each case until the Administrative Agent (upon theor, in the case of a determination by the Required Lenders described in clause (ii) of this Section 3.03(a), until the
Administrative Agent upon instruction of the Required Lenders) revokes such notice (which notice the
Administrative Agent and the Required Lenders agree to promptly revoke upon determination that the conditions giving rise to
such notice no longer exist). Upon receipt of such notice, (i) any Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of EurocurrencyTerm Benchmark Rate Loans in(to the
extent of the affected currency or currencies Term Benchmark Rate Loans or Interest Periods) or, failing that, will be deemed to have converted such request into a request
for a Committed Borrowing of Base Rate Loans in the amount specified therein (with any such request for (or Dollar Equivalent of the amount) thereof and (ii)(A) any outstanding Term Benchmark Loans denominated in Dollars shall be deemed to have
been converted to Base Rate Loans at the end of their respective applicable Interest Periods and (B) any outstanding Term Benchmark Rate Loans denominated in an Alternative Currency redenominated into shall either, at the election of the applicable
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Borrower, (1) be converted into a Borrowing of Base Rate Loans denominated in Dollars in the amount of the Dollar Equivalent thereof).of the amount of such outstanding affected Term Benchmark Rate Loan denominated in an
Alternative Currency at the end of their respective applicable Interest Periods or (2) be prepaid in full at the end of their respective applicable Interest Periods; provided that if no election is made by the applicable Borrower by the last
day of the current Interest Period for the effected Term Benchmark Rate Loan, such Borrower shall be deemed to have elected clause (1) above.
(b) Replacement of Term SOFR or Term SOFR Successor Rate. Notwithstanding anything to the contrary in this Agreement or any other Loan Documents, if the Administrative Agent determines (which determination shall be conclusive absent manifest error), or the Company or Required
Lenders notify the Administrative Agent (with, in the case of the Required Lenders, a copy to the Company) that the Company or Required Lenders (as applicable) have determined, that:
(i) adequate and reasonable means do not exist for ascertaining LIBOR
for any requestedone month, three month and six month Iinterest Pperiods of Term SOFR, including,
without limitation, because the LIBORTerm SOFR Screen Rate is not available or published on a current basis and such circumstances are unlikely to be temporary; or
(ii) theCME
or any successor administrator of the LIBORTerm SOFR Screen Rate or a Governmental Authority having jurisdiction over the Administrative Agent or such administrator with respect to its publication of
the Term SOFR Screen Rate, in each case acting in such capacity, has made a public statement identifying a specific date after which LIBOR or the LIBORone month, three month and six month interest periods of the Term SOFR Screen Rate shall or will no longer be made available, or permitted to be used
for determining the interest rate of Dollar denominated syndicated loans or shall or will otherwise cease, provided that, at the time of such statement, there is no successor administrator that is satisfactory to the Administrative Agent,
that will continue to provide LIBORthe Term SOFR Screen Rate after such
specific date (such specific date, the “the latest date on which one month, three month and six month interest periods
of the Term SOFR Screen Rate are no longer available permanently or indefinitely, the “Term SOFR Scheduled Unavailability Date”) ;-or
then, on a date and time determined by the Administrative Agent (any such date, the “Term SOFR Replacement Date”), which date shall be at the end of an Interest Period or on the relevant interest payment date, as applicable, for interest calculated
and, solely with respect to clause (ii) above, no later than the Term SOFR Scheduled Unavailability Date, Term SOFR will be replaced hereunder and under any Loan Document with Daily Simple SOFR plus the SOFR Adjustment for any payment period for interest calculated that can be determined by the Administrative Agent, in each case, without any amendment to, or further action or consent of
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any other party to, this Agreement or any other Loan Document (the “Term SOFR Successor Rate”).
If the Term SOFR Successor Rate is Daily Simple SOFR plus the SOFR Adjustment, all interest payments will be payable on a monthly basis.
The Administrative Agent will promptly (in one or more notices) notify the Borrowers and each Lender of the implementation of any Term SOFR
Successor Rate.
Any Term SOFR Successor Rate shall be applied in a manner consistent with market practice; provided that to the extent
such market practice is not administratively feasible for the Administrative Agent, such LIBORTerm SOFR Successor
Rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent.
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Notwithstanding anything else herein, if at any definition of LIBORtime any Term SOFR Successor Rate shall provide that in no event shall such LIBOR
Successor Rateas so determined would otherwise be less than zero for, the Term SOFR Successor Rate will be deemed to be zero for the purposes of this Agreement and the other
Loan Documents.
In connection with the implementation of a LIBORTerm SOFR Successor
Rate, the Administrative Agent will have the right to make LIBOR Successor Rate Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in
any other Loan Document, any amendments implementing such LIBOR Successor Rate Conforming Changes will become effective without any further action or consent of any other
party to this Agreement. ; provided that, with respect to any such amendment effected, the Administrative Agent shall post each such amendment
implementing such Conforming Changes to the Borrowers and the Lenders reasonably promptly after such amendment becomes effective.
(c) Replacement of Other Rates or Other
Successor Rates. Notwithstanding anything to the contrary in this Agreement or any other Loan Documents, if the Administrative Agent determines (which determination shall be conclusive absent manifest error), or the Company or Required Lenders
notify the Administrative Agent (with, in the case of the Required Lenders, a copy to the Company) that the Company or Required Lenders (as applicable) have determined, that:
(i) adequate and
reasonable means do not exist for ascertaining the Relevant Rate for any Alternative Currency because none of the tenors of such Relevant Rate available under this Agreement (including any forward-looking term rate thereof) are available or
published on a current basis and such circumstances are unlikely to be temporary;
(ii) the Applicable
Authority has made a public statement identifying a specific date after which all tenors of the Relevant Rate for any Alternative Currency (including any forward-looking term rate thereof) shall or will no longer be made available, or permitted
to be used for determining the interest rate of syndicated loans denominated in such Alternative Currency, or shall or will otherwise cease; provided that, in each case, at the time of such statement, there is no successor administrator that is
satisfactory to the Administrative Agent that will continue to provide such representative
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tenor(s) of such Relevant Rate for such Alternative Currency (the latest date on which all such tenors of such Relevant Rate
for such Alternative Currency (including any forward-looking term rate thereof) are no longer available permanently or indefinitely, the “Alternative Currency Scheduled Unavailability Date”); or
(iii) if the events or
circumstances of the type described in Section 3.03(c)(i) or (ii) have occurred with respect to the applicable Alternative Currency Successor Rate then in effect;
then, the Administrative Agent and the Company may amend this Agreement solely for the purpose of replacing the Relevant Rate or any then-current Alternative Currency Successor Rate for the applicable Alternative Currency in accordance with this
Section 3.03(c) at the end of any Interest Period, relevant interest payment date or payment period for interest calculated, as applicable, with an alternative benchmark rate giving due consideration to any evolving or then existing convention
for similar credit facilities syndicated and agented in the United States and denominated in such Alternative Currency for such alternative benchmark, and, in each case, including any mathematical or other adjustments to such benchmark giving
due consideration to any evolving or then existing convention for similar credit facilities syndicated and agented in the United States and denominated in such Alternative Currency for such benchmark (and any such proposed rate, including, for
the avoidance of doubt, any adjustment thereto, an “Alternative Currency Successor Rate”). Any such amendment shall become effective at 5:00 p.m. on the fifth Business Day after the Administrative Agent shall have posted such proposed amendment
to all Lenders and the Borrowers unless, prior to such time, Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders object to such amendment.
The Administrative Agent will promptly (in one or more notices) notify the Borrowers and each Lender of the implementation of any Alternative
Currency Successor Rate.
Notwithstanding anything else herein, if at any time any Alternative Currency Successor Rate as so determined would otherwise be less than zero,
the Alternative Currency Successor Rate will be deemed to be zero for the purposes of this Agreement and the other Loan Documents.
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In connection with the implementation of an Alternative Currency Successor Rate, the Administrative Agent will have the right to make Conforming
Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to
this Agreement; provided that, with respect to any such amendment effected, the Administrative Agent shall post each such amendment implementing such Conforming Changes to the Borrowers and the Lenders reasonably promptly after such amendment
becomes effective.
3.04. Increased Costs; Reserves on
Eurocurrency Rate Loans.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge
or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any reserve requirement reflected in the EurocurrencyTerm Benchmark Rate) or any L/C Issuer;
(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in the
definition of Excluded Taxes or (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
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(iii) impose on any Lender or any L/C Issuer or the Londonapplicable interbank market any other condition, cost or expense affecting this Agreement or EurocurrencyTerm Benchmark Rate Loans made by such Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such Lender of making, converting to, continuing or maintaining any EurocurrencyTerm Benchmark Rate Loan (or of maintaining its obligation to make any such Loan), or to increase the cost to such Lender or such L/C Issuer of participating in, issuing or
maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or such L/C Issuer hereunder (whether of principal,
interest or any other amount) then from time to time within 30 days following written 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
3.07), the Company will pay (or cause the Designated Borrower to pay) to such Lender or such L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or such L/C Issuer, as the case may be, for such
additional costs incurred or reduction suffered.
(b) Capital Requirements. If any Lender or any L/C Issuer determines that any Change in Law affecting such Lender
or such L/C Issuer or any Lending Office of such Lender or such Lender’s or such L/C Issuer’s holding company, if any, regarding capital or liquidity requirements has had the effect of reducing the rate of return on such Lender’s or such L/C
Issuer’s capital or on the capital of such Lender’s or such L/C Issuer’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters of Credit or Swing Line Loans
held by, such Lender, or the Letters of Credit issued by such L/C Issuer, to a level below that which such Lender or such L/C Issuer or such Lender’s or such L/C Issuer’s holding company could have achieved but for such Change in Law (taking into
consideration such Lender’s or such L/C Issuer’s policies and the policies of such Lender’s or such L/C Issuer’s holding company with respect to capital adequacy), in each case by an amount deemed by such Lender to be material, then from time to
time within 30 days following written 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
3.07), the Company will pay (or cause the Designated Borrower to pay) to such Lender or such L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or such L/C Issuer or such Lender’s or such L/C
Issuer’s holding company for any such reduction suffered.
(c) Certificates for Reimbursement. A certificate of a Lender or an L/C Issuer setting forth the amount or amounts
necessary to compensate such Lender or such L/C Issuer or its holding company, as the case may be, as specified in subsection (a) or (b) of this Section and delivered to the Borrowers shall be conclusive absent manifest error. The Company
shall pay (or cause the Designated Borrower to pay) such Lender or such L/C Issuer, as the case may be, the amount shown as due on any such certificate within 10 days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any Lender or any L/C Issuer to demand compensation
pursuant to the foregoing provisions of this Section 3.04 shall not constitute a waiver of such Lender’s or such L/C Issuer’s right to demand such compensation,
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provided that no Borrower shall be required to compensate a Lender or an L/C Issuer pursuant to the foregoing provisions of this Section for any increased costs incurred or reductions suffered more than six
months prior to the date that such Lender or such L/C Issuer, as the case may be, notifies the Borrowers of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or such L/C Issuer’s intention to claim
compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the six-month period referred to above shall be extended to include the period of retroactive effect thereof).
(e) Additional Reserve Requirements. If any Lender is required to comply with any reserve ratio requirement or
analogous requirement of any Governmental Authority imposed in respect of the maintenance of the Commitments or the funding of the EurocurrencyTerm Benchmark Rate Loans, the Company shall pay (or cause the Designated Borrower to pay) to such Lender 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 in the absence
of demonstrable error), which shall be due and payable on each date on which interest is payable on such Loan, provided that the Borrowers shall have received at least 15 days’ prior notice (with a copy to the Administrative Agent) of
such additional costs from such Lender. If a Lender fails to give notice 15 days prior to the relevant Interest Payment Date, such additional interest or costs shall be due and payable 15 days from receipt of such notice.
3.05. Compensation for Losses. Upon the written demand of any
Lender (with a copy to the Administrative Agent) from time to time, the Company shall promptly compensate (or cause the Designated Borrower to compensate) such Lender for and hold such Lender harmless from any actual loss, cost or expense
incurred by it excluding any loss of margin or actual anticipated profits as a result of:
(a) any continuation, conversion, payment or prepayment of any Loan other than a Base Rate Loan 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 any Borrower (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow,
continue or convert any Loan other than a Base Rate Loan on the date or in the amount notified by the Company or the Designated Borrower; or
(c) any assignment of a EurocurrencyTerm Benchmark Rate Loan on a day other than the last day of the Interest Period therefor as a result of a request by the Company or the Designated Borrower
pursuant to Section 10.13;
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.
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3.06. Replacement of Lenders. If any Lender requests
compensation under Section 3.04, or if any Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01 and, in each
case, such Lender has not eliminated such Indemnified Taxes or additional amounts by designating a different lending office in accordance with Section 3.07(e), the Company may replace such Lender in accordance with Section 10.13.
3.07. Matters Applicable to All Requests for Compensation.
(a) If the Administrative Agent or any Lender claims compensation under this Article III, it shall deliver a
certificate to the Borrowers contemporaneously with the demand for payment setting forth in reasonable detail a calculation of the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of demonstrable
error. In determining such amount, the Administrative Agent or such Lender may use any reasonable averaging and attribution methods.
(b) With respect to any Lender’s claim for compensation under any of Sections 3.02 through 3.05, the
Borrowers shall not be required to compensate such Lender for any amount incurred more than 180 days prior to the date that such Lender notifies the Borrowers of the event that gives rise to such claim; provided that, if the circumstance
giving rise to such increased cost or reduction is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. If any Lender requests compensation from any Borrower under Section
3.04, the Company 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 EurocurrencyTerm Benchmark Rate Loans, or to convert Base Rate Loans into EurocurrencyTerm Benchmark Rate 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(c) shall be applicable); provided that such suspension shall not affect the right of such Lender to receive the compensation so requested.
(c) If the obligation of any Lender to make or continue from one Interest Period to another any EurocurrencyTerm Benchmark Rate Loan (or to convert Base Rate Loans into EurocurrencyTerm Benchmark Rate Loans) shall be suspended pursuant to Section 3.07(b)
hereof, such Lender’s EurocurrencyTerm Benchmark Rate Loans shall be
automatically converted into Base Rate Loans (in the Dollar Equivalent thereof) on the last day(s) of the then current Interest Period(s) for such EurocurrencyTerm Benchmark Rate Loans (or, in the case of an immediate conversion required by Section 3.02, 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 3.01 through 3.04 hereof that gave rise to such conversion no longer exist: (i) to the extent that such Lender’s EurocurrencyTerm Benchmark Rate Loans have been so converted, all payments and prepayments
of principal that would otherwise be applied to such Lender’s EurocurrencyTerm Benchmark Rate Loans shall be applied instead to its Base Rate Loans; and (ii) all Loans that would otherwise be made or continued from one Interest Period to another by
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such Lender as EurocurrencyTerm Benchmark Rate Loans shall be made or continued instead as Base Rate Loans, and all Base Rate Loans of such Lender that would otherwise be converted into EurocurrencyTerm Benchmark Rate Loans shall remain as Base Rate Loans.
(d) If any Lender gives notice to the Company (with a copy to the Administrative Agent) that the circumstances specified
in any of Sections 3.02 through 3.04 that gave rise to the conversion of such Lender’s EurocurrencyTerm
Benchmark Rate 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 EurocurrencyTerm Benchmark Rate Loans made by other Lenders are outstanding, such Lender’s Base Rate
Loans shall be automatically converted, on the first day(s) of the next succeeding Interest Period(s) for such outstanding EurocurrencyTerm Benchmark Rate Loans, to the extent necessary so that, after giving effect thereto, all Loans held by the Lenders holding EurocurrencyTerm Benchmark Rate Loans and by such Lender are held pro rata (as to principal amounts, interest rate basis, and Interest Periods) in
accordance with their respective Commitments.
(e) Each Lender agrees that if any Borrower is required to pay an additional amount to the Lender or to any Governmental
Authority for the account of the Lender pursuant to Section 3.01, it will, if requested by the Company, use commercially reasonable efforts (subject to such Lender’s internal policies and any legal or regulatory restrictions) to reduce or
eliminate such payment, including to designate another Lending Office for any Loan or Letter of Credit affected and (ii) if any Lender (A) requests compensation under Section 3.04, or (B) notifies any Borrower that it has determined that
it is unlawful for its applicable Lending Office to make, maintain or fund EurocurrencyTerm Benchmark Rate Loans, or to determine or charge interest rates based upon the EurocurrencyTerm
Benchmark Rate, then such Lender will, if requested by the Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan or Letter of Credit affected by such event; provided
that in each case, such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided further
that nothing in this Section 3.07(e) shall affect or postpone any of the Obligations of any Borrower or the rights of such Lender pursuant to Section 3.01, 3.02 or 3.04.
3.08. Survival. All of the Borrowers’ obligations under this Article
III shall survive termination of the Aggregate Commitments, repayment of all other Obligations hereunder, and resignation of the Administrative Agent.
ARTICLE IV.
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01. Conditions Precedent to Effectiveness. The effectiveness
of the amendment and restatement of the Existing Credit Agreement is subject to the satisfaction (or waiver pursuant to Section 10.01) of the following conditions precedent:
(a) The Administrative Agent shall have received the following, each of which shall be originals or e-mailed copies
(followed promptly by originals), each dated the Effective Date
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(or, in the case of certificates of governmental officials, a recent date before the Effective Date), and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this Agreement;
(ii) Notes executed by the Borrowers in favor of each Lender requesting Notes;
(iii) certificates of resolutions or other equivalent action and incumbency certificates of
Responsible Officers of each Loan Party evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such
Loan Party is a party;
(iv) documents and certifications evidencing that each Loan Party is validly existing and in good
standing and qualified to engage in business in its jurisdiction of organization;
(v) a certificate signed by a Responsible Officer of the Company certifying (A) that the conditions
specified in Sections 4.02(a) and (b) have been satisfied, (B) other than as publicly disclosed prior to July 31, 2019, that there has been no event or circumstance since the date of the Audited Financial Statements that has had
or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; (C) the current Debt Ratings and (D) that, except as set forth on Schedule 5.06(b), there are no actions, suits,
investigations or proceedings pending or, to the knowledge of the Company, threatened in any court or before any arbitrator or governmental authority that would reasonably be expected to have a Material Adverse Effect; and
(vi) opinions of (i) Tarrant Sibley, Esq., Senior Vice President, Chief Legal Officer and Secretary of
the Company and (ii) Cravath, Swaine & Moore LLP, special New York counsel to the Loan Parties, in each case in form and substance reasonably satisfactory to the Administrative Agent.
(b) All accrued and invoiced fees and expenses of the Lead Arrangers, the Administrative Agent and the Lenders (including
the fees and expenses of counsel for the Administrative Agent) required to be paid on or before the Effective Date shall have been paid.
(c) (i) Upon the reasonable request of any Lender made at least 10 Business Days prior to the Effective Date, the
Borrowers shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and
regulations, including, without limitation, the PATRIOT Act and the AML Legislation, in each case at least 5 Business Days prior to the Effective Date and (ii) at least 10 Business Days prior to the Effective Date, any Borrower that qualifies as
a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, at least 5 Business Days prior to the Effective Date, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Borrower.
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Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in
this Section 4.01, 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 notice from such Lender prior to the proposed Effective Date specifying its objection thereto. The Administrative Agent
shall notify the Company and the Lenders of the occurrence of the Effective Date, and such notice shall be conclusive and binding.
4.02. Conditions Precedent to all Credit Extensions. The
obligation of each Lender to make any Credit Extension is subject to the satisfaction (or waiver pursuant to Section 10.01) of the following conditions precedent; provided that the initial Credit Extensions utilizing the
Additional Commitments shall also be subject to satisfaction (or waiver pursuant to Section 10.01) of the conditions precedent set forth in Section 4.03; provided, further, that the initial Credit Extension to the
Designated Borrower shall also be subject to the satisfaction (or waiver pursuant to Section 10.01) of the requirement that the Administrative Agent shall have received an opinion of Swiss counsel to the Designated Borrower in form and
substance reasonably satisfactory to the Administrative Agent:
(a) The representations and warranties of (i) the Borrowers contained in Article V (except, with respect to
Credit Extensions, for the representations and warranties in Sections 5.05(b) and 5.06) and (ii) each Loan Party contained in each other Loan Document, shall be true and correct in all material respects except that all
representations and warranties that are qualified by materiality are true and correct in all respects 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 (or true and correct in all respects for any such representations or warranties that are qualified by materiality) as of such earlier date.
(b) No Default shall exist, or would result from such proposed Credit Extension.
(c) The Administrative Agent and, if applicable, the applicable L/C Issuer or the Swing Line Lender shall have received a
Request for Credit Extension in accordance with the requirements hereof.
(d) In the case of a Credit Extension to be denominated in an Alternative Currency, there shall not have occurred any
change in national or international financial, political or economic conditions or currency exchange rates or exchange controls which in the reasonable opinion of the Administrative Agent would make it impracticable for such Credit Extension to
be denominated in the relevant Alternative Currency.
Each Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of Committed Loans to the other Type or a continuation of EurocurrencyTerm Benchmark Rate Loans) submitted by any Borrower shall be deemed to be a representation
and warranty that the conditions specified in Sections 4.02(a) and (b) have been satisfied on and as of the date of the applicable Credit Extension.
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4.03. Additional Conditions Precedent to Additional Commitment
Availability Date. The occurrence of the Additional Commitment Availability Date is subject to the satisfaction (or waiver pursuant to Section 10.01) of the following conditions precedent on or before the Additional Commitment
Termination Date:
(a) The Effective Date shall have occurred.
(b) The EOne Acquisition shall be consummated in all material respects in accordance with the EOne Acquisition Agreement,
and no provision of the EOne Acquisition Agreement (as in effect on August 22, 2019) shall have been amended or modified by the Company, and no condition therein shall have been waived or consent granted or request made by the Company, in each
case, in any respect that is materially adverse to the Lenders in their capacities as such without the Administrative Agent’s prior written consent (which consent shall not be unreasonably withheld or delayed); provided, that (i) any
increase in the purchase price in the EOne Acquisition Agreement shall not be deemed to be materially adverse to the interests of the Lenders and shall not require the consent of the Administrative Agent if such purchase price increase does not
exceed 10.0% in aggregate (other than increases in the purchase price in the form of common stock of the Company, which shall not be deemed to be materially adverse to the interests of the Lenders and shall not require the consent of the
Administrative Agent), (ii) no decrease below the purchase price in the EOne Acquisition Agreement shall, in and of itself, be deemed to be materially adverse to the interests of the Lenders and shall not require the consent of the Administrative
Agent, but, to the extent in cash and after giving effect to the applicable mandatory prepayment and commitment reduction provisions of the Bridge Facility, shall reduce the dollar equivalent amount (as reasonably determined by the Administrative
Agent) of the commitments in respect of the Term Loan Facility, allocated pro rata between the 3-Year Tranche Loans and the 5-Year Tranche Loans (under and as defined in the Term Loan Facility) and (iii)
any such amendment, modification or waiver with respect to (x) Section 3.1(n)(1) or Section 6.2(b)(i) (insofar as it relates to such Section 3.1(n)(1)) of the EOne Acquisition Agreement or (y) the definition of “Material
Adverse Effect” contained in the EOne Acquisition Agreement, in each case, shall be deemed materially adverse to the Lenders.
(c) Since August 22, 2019, there shall not have been or occurred any Material Adverse Effect (as defined in the EOne
Acquisition Agreement as in effect on August 22, 2019).
(d) To the extent also provided to BofA Securities, Inc., in its capacity as the lead arranger of the Bridge Facility,
the Administrative Agent shall have received (a) audited consolidated balance sheets and related consolidated statements of operations, comprehensive earnings, cash flows and shareholders’ equity and redeemable noncontrolling interests of the
Company, and audited consolidated balance sheets and related consolidated statements of comprehensive income, cash flows and changes in equity of EOne, in each case, as of and for each of the last three full fiscal years ended at least 60 days
prior to the Additional Commitment Availability Date, and (b) unaudited consolidated balance sheets and related consolidated statements of operations, comprehensive earnings, cash flows, and shareholders’ equity and redeemable noncontrolling
interests of the Company as of and for each subsequent fiscal quarter (other than any fourth fiscal quarter) ended at least 40 days prior to the Additional Commitment Availability Date (together with the corresponding period(s) of the prior
fiscal year), and the unaudited consolidated balance sheet and related consolidated statements of comprehensive
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income, cash flows and changes in equity of the Target as of and for the six months ended September 30, 2019 if such date is at least 40 days prior to the Additional Commitment Availability Date (together with the
corresponding period(s) of the prior fiscal year). In the case of the Company, such financial statements shall be prepared in accordance with U.S. GAAP. In the case of the EOne, such financial statements shall be prepared in accordance with
International Financial Reporting Standards as issued by the International Accounting Standards Board. In the case of any audited information, such financial statements shall be audited in accordance with U.S. generally accepted auditing standards
as promulgated by the AICPA (US GAAS) for filing with the SEC and, in the case of any unaudited information, shall be reviewed in accordance with Regulation S-X and all other accounting rules and regulations of the SEC promulgated thereunder
applicable to unaudited interim financial statements. With respect to such financial statements of the Company, it is understood that this condition shall be deemed satisfied through the public filing of financial statements complying with the
foregoing requirements on Form 10-K or Form 10-Q, as the case may be, by the Company with the SEC. To the extent also provided to BofA Securities, Inc., in its capacity as the lead arranger of the Bridge Facility, the Administrative Agent shall
also have received pro forma financial statements of the Company giving effect to the EOne Transactions and any other recent, probable or pending acquisitions or dispositions, in each case, solely to the extent required by Article 11 of Regulation
S-X (“Regulation S-X”), and only to the extent the Company will be required to file such pro forma financial statements with the SEC, regardless of the timing of such filing, which pro forma financial statements shall be prepared in
accordance with Regulation S-X and all other accounting rules and regulations of the SEC promulgated thereunder applicable to pro forma financial statements included in registration statements on Form S-3.
(e) The Administrative Agent shall have received (i) a certificate signed by a Responsible Officer of the Company
certifying there has been no change to the certificates, resolutions or other equivalent documents since the date of their delivery pursuant to Section 4.01(a)(iii) (or attaching thereto any updated certificates, resolutions or other
equivalent documents), (ii) documents and certifications evidencing that each Loan Party is validly existing and in good standing in its jurisdiction of organization, (iii) a certificate of a Responsible Officer of the Company certifying that the
conditions precedent in Sections 4.03(b) and (g) have been satisfied, and (iv) a solvency certificate from the treasurer or other financial officer of the Company substantially in the form of Exhibit I hereto.
(f) The Lead Arrangers, the Administrative Agent and the Lenders shall have received all fees and invoiced expenses
required to be paid on or prior to the Effective Date pursuant to the Fee Letter and this Agreement (solely with respect to expenses) to the extent invoiced at least two Business Days prior to the Additional Commitment Availability Date.
(g) (x) The representations and warranties of (i) the Borrowers contained in Article V and (ii) each Loan Party
contained in each other Loan Document, shall be true and correct in all material respects except that all representations and warranties that are qualified by materiality are true and correct in all respects on and as of the Additional Commitment
Availability 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 (or true and correct in all respects for any such
representations or warranties that are qualified by materiality) as of such
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earlier date and (y) no Default shall exist, or would result from the occurrence of the Additional Commitment Availability Date.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
Each Borrower represents and warrants to the Administrative Agent and the Lenders that:
5.01. Existence, Qualification and Power. Each Loan Party and
each Significant Subsidiary thereof (a) is duly organized or formed, validly existing and, as applicable, in good standing 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, and (c) is duly qualified and is licensed and, as applicable, in good standing under the Laws
of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification or license; except in each case referred to in clause (a) (other than with respect to the Borrowers), (b)(i)
or (c), to the extent that failure to do so would not reasonably be expected to have a Material Adverse Effect.
5.02. Authorization; No Contravention. The execution, delivery
and performance by each Loan Party of each Loan Document to which such Person is a party, have been duly authorized by all necessary corporate or other organizational action, and do not and will not (a) contravene the terms of such Person’s
Organization Documents; (b) conflict with or result in any breach or contravention of, or the creation of any material Lien under any Contractual Obligation to which such Person is a party or affecting such Person or the properties of such Person
or any of its Subsidiaries; or (c) violate any Law or any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject, except, in the cases of clauses (b) and (c)
to the extent such conflict, breach, contravention, creation or violation would not reasonably be expected to have a Material Adverse Effect.
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 the execution, delivery or performance by, or enforcement against, any
Loan Party of this Agreement or any other Loan Document other than (i) those such as have been obtained or made and are in full force and effect, (ii) any filings of this Agreement and the other Loan Documents with the SEC required to be made
after the date hereof and (iii) such approvals, consents, exemptions, authorizations, actions or notices the failure of which to obtain or make would not reasonably be expected to have a Material Adverse Effect.
5.04. Binding Effect. This Agreement and each other Loan
Document have been duly executed and delivered by each Loan Party that is party thereto. This Agreement constitutes, 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 enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
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or similar laws affecting creditors’ rights or remedies generally and by general principles of equity and an implied covenant of good faith and fair dealing.
5.05. Financial Statements; No Material Adverse Effect.
(a) The Audited Financial Statements (i) were prepared in accordance with GAAP and (ii) present fairly in all material
respects the financial condition of the Company and its Subsidiaries as of the date thereof and for the indicated period.
(b) Other than as publicly disclosed prior to July 31, 2019, since the date of the Audited Financial Statements, there
has been no event or circumstance, either individually or in the aggregate, that had or would reasonably be expected to have a Material Adverse Effect.
5.06. Litigation. There are no actions, suits, proceedings,
claims or disputes pending or, to the knowledge of the Company, threatened in writing at law, in equity, in arbitration or before any Governmental Authority by or against the Company or any of its Subsidiaries or against any of their properties
or revenues that (a) provides a reasonable basis for questioning the validity or the enforceability of any Loan Document or (b) except as disclosed in Schedule 5.06(b), either individually or in the aggregate, would reasonably be expected
to have a Material Adverse Effect.
5.07. No Default. No Default has occurred and is continuing.
5.08. Ownership of Property; Liens. Except as disclosed in Schedule
5.08, each of the Company and each Significant Subsidiary has good record and marketable title to, or valid leasehold interests in, or easements or other limited property interests in, all real property necessary in the ordinary conduct of
its business, except for Liens permitted by Section 7.01 and except where the failure to have such title or interest would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
5.09. Environmental Compliance. Except as disclosed in Schedule
5.09, there are no claims pending or, to the knowledge of the Company, threatened in writing against the Company or any of its Significant Subsidiaries alleging liability or responsibility of the Company or any of its Significant
Subsidiaries for violation of any Environmental Law by their respective businesses, operations and properties that would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
5.10. Taxes. The Company and its Subsidiaries have filed all
Federal, state and other material tax returns and reports required to be filed, and have paid all Federal, state and other material taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or
assets otherwise due and payable, except those which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided in accordance with GAAP, except (i) as disclosed on Schedule
5.10 or (ii) which, collectively, could not exceed the Threshold Amount. Except as disclosed on Schedule 5.10, there is no actual or proposed tax assessment against the Company or any Subsidiary that would, if made or paid, have a
Material Adverse Effect. Neither any Loan Party nor any Subsidiary thereof is party to any tax sharing agreement.
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5.11. [Intentionally Omitted].
5.12. Subsidiaries. As of the Effective Date, the Company has
no Significant Subsidiaries other than those specifically disclosed in Schedule 5.12.
5.13. Margin Regulations; Investment Company Act.
(a) No proceeds of any Credit Extension will be used to purchase, acquire or carry any margin stock (within the meaning
of Regulation U issued by the FRB) in violation of the provisions of the regulations of the FRB.
(b) No Loan Party is required to be registered as an “investment company” under the Investment Company Act of 1940.
5.14. Disclosure.
(a) As of the Effective Date and the Additional Commitment Availability Date, the reports, financial statements,
certificates and other written information furnished by or on behalf of any Loan Party to the Administrative Agent or any Lender in connection with the EOne Transactions and the other transactions contemplated hereby and the negotiation of this
Agreement or delivered by or on behalf or any Loan Party hereunder or under any other Loan Document (as modified or supplemented by other information so furnished) (other than the Projections, estimates and information of a general economic
nature) (taken as a whole, the “Information”) as of such date do not, when taken as a whole, contain any misstatement of material fact or omit to state any material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not materially misleading; provided that, with respect to projections, estimates, budgets and other forward-looking information (taken as a whole, the “Projections”), the Borrowers
represent and warrant, as of each of the Effective Date and the Additional Commitment Availability Date, only that such information was prepared in good faith based upon assumptions believed by the Company to be reasonable at the time of
preparation, it being recognized by the Administrative Agent and the Lenders that (x) such Projections are not to be viewed as facts and that actual results during the period or periods covered by any such projections may differ significantly
from the projected or forecasted results and that such differences may be material and that such Projections are not a guarantee of financial performance and (y) no representation is made with respect to information of a general economic or
general industry nature.
(b) As of the Effective Date, the information included in each Beneficial Ownership Certification is true and correct in
all respects.
5.15. [Intentionally Omitted].
5.16. Foreign Assets Control Regulations, Etc. Neither the
Company nor any of its Subsidiaries is an entity on the “Specially Designated Nationals and Blocked Persons” list maintained by OFAC.
5.17. OFAC. Neither the Company, nor any of its Subsidiaries,
nor, to the knowledge of the Company and its Subsidiaries, any director, officer, employee, or affiliate under the
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control of the Company or a subsidiary thereof, is an individual or entity that is, or is more than 50% owned or controlled by one or more individuals or entities that is (i) currently the subject or target of any
Sanctions, (ii) included on OFAC’s List of Specially Designated Nationals and Blocked Persons, HMT’s Consolidated List of Financial Sanctions Targets, the Consolidated Canadian Autonomous Sanctions List or the Consolidated United Nations Security
Council Sanctions List, or any similar list enforced by any other relevant sanctions authority in a jurisdiction in which any Borrower conducts business or (iii) located, organized or resident in a Designated Jurisdiction.
5.18. Anti-Corruption Laws. Except to the extent that the
failure to do so (i) would not reasonably be expected to have a Material Adverse Effect and (ii) would not result in any non-compliance by, or other adverse impact on any of the Lenders, any L/C Issuer, Administrative Agent or Lead Arrangers with
respect to the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010, and other similar anti-corruption or anti-money laundering legislation in other jurisdictions, the Company and its Subsidiaries have conducted their
businesses in compliance with the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010, and other similar anti-corruption or anti-money laundering legislation in other jurisdictions and have instituted and maintained
policies and procedures designed to promote and achieve compliance with such laws.
5.19. EEA Financial Institution. No Loan Party is an EEA
Financial Institution.
ARTICLE VI.
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan shall remain unpaid or unsatisfied or any other Obligation hereunder which is accrued and payable
shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding or not otherwise provided for in full in a manner provided for herein or as otherwise reasonably satisfactory to the relevant L/C Issuer, the Company shall, and
shall (except in the case of the covenants set forth in Sections 6.01, 6.02, and 6.03) cause each Significant
Subsidiary to:
6.01. Financial Statements. Deliver to the Administrative
Agent for further prompt distribution to the Lenders:
(a) as soon as available, but in any event no later than 100 days after the end of each fiscal year of the Company, a
consolidated balance sheet of the Company and its Subsidiaries as at the end of such fiscal year, and the related consolidated statement of operations and the consolidated statement of cash flows for such fiscal year, setting forth in each case
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 of KPMG, LLP or other registered public accounting firm of nationally recognized
standing selected by the Company, which report shall be prepared in accordance with the standards of the Public Company Accounting Oversight Board (United States) and shall not be subject to any “going concern” or like qualification or exception
or any qualification or exception as to the scope of such audit; and
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(b) as soon as available, but in any event not later than 60 days after the end of each of the first three fiscal
quarters of each fiscal year of the Company, a consolidated balance sheet of the Company and its Subsidiaries as at the end of such fiscal quarter, and the related consolidated statements of operations and cash flows for such fiscal quarter and
for the portion of the Company’s fiscal year then ended, setting forth in each case 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, certified by the chief executive officer, chief financial officer, treasurer or controller of the Company as fairly presenting in all material respects the financial condition, results of operations and cash flows of the
Company and its Subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes.
As to any information contained in materials furnished pursuant to Section 6.02, the Company shall not be separately required to furnish such
information under clause (a) or (b) above, but the foregoing shall not be in derogation of the obligation of the Company to furnish the information and materials described in clauses (a) and (b) above at the times
specified therein.
6.02. Certificates; Other Information. Deliver to the
Administrative Agent for further prompt distribution to the Lenders:
(a) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), a
duly completed Compliance Certificate signed by the chief executive officer, chief financial officer, treasurer or controller of the Company;
(b) promptly after the same are available, copies of each report or financial statement sent to the stockholders of the
Company generally, and copies of all regular and periodic reports which the Company may file with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the
Administrative Agent pursuant hereto;
(c) 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” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act and the Beneficial Ownership Regulation; and
(d) promptly, such additional information regarding the business, financial or corporate affairs of the Company or any
Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender through the Administrative Agent may from time to time reasonably request.
Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(b) (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 (i) on which the Company posts such documents, or provides a link thereto on the Company’s website on
the Internet at the website address listed on Schedule 10.02; or (ii) on which such documents are posted on the Company’s behalf on an Internet or intranet website, if any, to which each Lender and the
Administrative Agent have access (whether a commercial,
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third-party website or whether sponsored by the Administrative Agent); provided that the Company shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the
Company to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender. In every instance the Company shall be required to provide, whether electronically or otherwise,
executed copies of the Compliance Certificates required by Section 6.02(a) to the Administrative Agent. Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies
of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Company with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its
copies of such documents.
Each Borrower hereby acknowledges that (a) the Administrative Agent and/or the Lead Arrangers will make available to the Lenders and the L/C Issuers materials and/or
information provided by or on behalf of such Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, Syndtrak, ClearPar, or a substantially similar electronic transmission system (the “Platform”)
and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to
any Borrower, any of their respective Affiliates or any of their respective securities) (each, a “Public Lender”). The Administrative Agent hereby agrees that when it posts such Borrower Materials on the Platform, it will post such
Borrower Materials in the form such Borrower provided such Borrower Materials to the Administrative Agent. Each Borrower hereby agrees that (w) all Borrower Materials that are to be made available to Public Lenders must be clearly and
conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the
Administrative Agent, the Lead Arrangers, the L/C Issuers and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Borrowers, their Affiliates or their respective securities for
purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower
Materials constitute Information, they shall be treated as set forth in Section 10.07); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform
designated “Public Investor;” and (z) the Administrative Agent and the Lead Arrangers shall treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public
Investor.” Notwithstanding the foregoing or anything to the contrary herein or in any other Loan Document, no Loan Party is under any obligation to mark any Borrower Materials as “PUBLIC.”
6.03. Notices. Promptly upon any Responsible Officer obtaining
knowledge thereof, notify the Administrative Agent:
(a) of the occurrence of any Default;
(b) of any litigation or proceedings pending or threatened in writing affecting the Company or any of its Subsidiaries
involving an uninsured claim against the Company or any of its Subsidiaries that would reasonably be expected to have a Material Adverse Effect; and
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(c) of any announcement by Fitch, Moody’s or S&P of any change in a Debt Rating.
Each notice pursuant to this Section 6.03 (other than Section 6.03(c)) shall be accompanied by a statement of a Responsible Officer
of the Company setting forth details of the occurrence referred to therein and stating what action the Company has taken and proposes to take with respect thereto. The Administrative Agent will promptly notify the Lenders of any notices it
receives pursuant to this Section 6.03.
6.04. Payment of Obligations. Pay and discharge or otherwise
satisfy prior to the time when any penalty or fine shall be incurred with respect thereto (a) all tax liabilities, assessments and governmental charges or levies upon it or its properties or assets and (b) all other lawful claims which, if
unpaid, would by law become a Lien upon its property (other than any Lien permitted under Section 7.01), except, in the case of clauses (a) and (b) to the extent failure to pay or discharge the same would not reasonably be
expected to have a Material Adverse Effect or unless the same are being contested in good faith by appropriate proceedings diligently conducted and adequate reserves, if any, required by GAAP are being maintained by the Company or such
Significant Subsidiary.
6.05. Preservation of Existence, Etc. Preserve, renew and
maintain in full force and effect its legal existence and good standing under the Laws of the jurisdiction of its organization except in a transaction permitted by Section 7.03; provided that the legal existence or good standing
of any Significant Subsidiary other than the Designated Borrower may be terminated or permitted to lapse if the Company determines in good faith that such termination or lapse is in the best interests of the Company and is not materially
disadvantageous to the Lenders.
6.06. Maintenance of Properties. Except where the failure to
do so would not reasonably be expected to have a Material Adverse Effect, (a) maintain, preserve and protect all of its material properties and equipment necessary in the operation of its business in good working order and condition, ordinary
wear and tear excepted and (b) make all necessary repairs thereto and renewals and replacements thereof in accordance with sound industry practice.
6.07. Maintenance of Insurance. Maintain with financially
sound and reputable insurance companies, insurance with respect to its properties and business against loss or damage of the kinds customarily insured against by similarly situated Persons engaged in the same or similar business, of such types
and in such amounts (after giving effect to any self-insurance) as are customarily carried under similar circumstances by such other Persons; provided that the Company and any of its Significant Subsidiaries may maintain a program of self
insurance in accordance with sound business practices.
6.08. Compliance with Laws. Comply in all material respects
with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its business or property, 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, (b) except as disclosed on Schedule 6.08, or (c) the failure to comply therewith would not reasonably be expected to have a Material Adverse Effect.
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6.09. Books and Records. Maintain proper books of record and
account, in which full, true and correct entries in conformity with GAAP and, in the case of a Foreign Subsidiary, applicable statutory reporting requirements, consistently applied shall be made of all financial transactions and matters involving
the assets and business of the Company or such Significant Subsidiary, as the case may be, as and to the extent required thereby.
6.10. Inspection Rights. Permit representatives and
independent contractors of the Administrative Agent and each Lender at the expense of that Lender to visit and inspect any of its properties, 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, officers, and independent public accountants, all at such reasonable times during normal business hours, upon reasonable advance notice to the Company; provided,
however, that unless an Event of Default exists the Administrative Agent or any Lender (or any of their respective representatives or independent contractors) may only exercise its inspection rights hereunder twice per fiscal year; provided further,
that representatives of the Company may be present during such inspections and discussions at all times prior to the occurrence of a Default or Event of Default.
6.11. Use of Proceeds. Use the proceeds of the Credit
Extensions for general corporate purposes, including, without limitation, financing working capital, capital expenditures and other lawful purposes.
6.12. Addition of Guarantors. From time to time, the Company
may, but shall not be required to, cause one or more of its Subsidiaries to become a Subsidiary Guarantor by causing such Subsidiary to (i) execute and deliver to the Administrative Agent a Subsidiary Guaranty or such other document as shall be
reasonably satisfactory to the Administrative Agent for such purpose, and (ii) deliver to the Administrative Agent documents of the types referred to in clauses (iii) and (iv) of Section 4.01(a), all in form, content and
scope reasonably satisfactory to the Administrative Agent.
6.13. Anti-Corruption Laws. Except to the extent that the
failure to do so (i) would not reasonably be expected to have a Material Adverse Effect and (ii) would not result in any non-compliance by, or other adverse impact on any of the Lenders, any L/C Issuer, Administrative Agent or Lead Arrangers with
respect to the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010, and other similar anti-corruption or anti-money laundering legislation in other jurisdictions, conduct its businesses in compliance with the United
States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010, and other similar anti-corruption or anti-money laundering legislation in other jurisdictions and maintain policies and procedures designed to promote and achieve compliance
with such laws.
ARTICLE VII.
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan shall remain unpaid or unsatisfied or any other Obligation hereunder which is accrued and payable shall remain
unpaid or unsatisfied, or any Letter of Credit shall remain outstanding or not otherwise
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provided for in full in a manner provided for herein or as otherwise reasonably satisfactory to the relevant L/C Issuer:
7.01. Liens. The Company shall not, nor shall it permit any
Subsidiary (other than any Foreign Subsidiary) to, create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues, whether now owned or hereafter acquired, other than the following:
(a) Liens pursuant to any Loan Document;
(b) Liens existing on the date hereof and any extension, renewal or replacement (or successive extensions, renewals or
replacements), in whole or in part, thereof; provided, however, that (i) such extension, renewal or replacement shall be limited to all or part of the property which secured the Lien so extended, renewed or replaced (plus
improvements on such property), (ii) the amount secured or benefited thereby is not increased except to the extent the increased amount of Indebtedness would be permitted under Section 7.02, (iii) the direct or indirect obligor with
respect thereto is not changed, and (iv) any renewal or extension of the obligations secured or benefited thereby is permitted by Section 7.02(d);
(c) Liens for taxes, assessments or governmental charges not overdue for a period of more than 60 days or, if more than
60 days overdue, (i) which are being contested in good faith by appropriate proceedings (provided that adequate reserves with respect thereto are maintained on the books of the Company or its Subsidiaries, as the case may be, in conformity
with GAAP), (ii) which secure payments disclosed on Schedule 7.01(c), or (iii) with respect to which failure to make payment would not reasonably be expected to have a Material Adverse Effect;
(d) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, supplier’s or other like Liens arising in the
ordinary course of business securing amounts which are not overdue for a period of more than 60 days or, if more than 60 days overdue (i) such Lien is being contested in good faith and by appropriate proceedings diligently conducted, if adequate
reserves with respect thereto are maintained on the books of the applicable Person or (ii) the failure to pay such amounts would not reasonably be expected to have a Material Adverse Effect;
(e) (i) Liens incurred in connection with workers’ compensation, unemployment insurance and other social security
legislation, (ii) Liens incurred in the ordinary course of business securing insurance premiums or reimbursement obligations under insurance policies or (iii) obligations in respect of letters of credit or bank guarantees that have been posted to
support the payment of the items set forth in clauses (i) and (ii) of this Section 7.01(e);
(f) deposits or pledges to secure the performance of bids, tenders, trade contracts and leases (other than for borrowed
money), statutory obligations, surety and appeal bonds, indemnity bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(g) easements, rights-of-way, zoning restrictions, restrictions on the use of real property and defects and
irregularities in the title thereto, landlord’s or lessor’s liens under leases to which the Company or a Subsidiary of the Company is a party, and other similar encumbrances and minor liens, none of which in the opinion of the Company interferes
materially with the use of the property affected in the ordinary conduct of the business of the
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Company and its Subsidiaries and which defects do not individually or in the aggregate have a Material Adverse Effect;
(h) Liens securing judgments for the payment of money not constituting an Event of Default under Section 8.01(h);
(i) Liens on assets acquired, constructed or improved by the Company or any of its Subsidiaries, provided, however,
that (i) such Liens secure Indebtedness permitted by Section 7.02(g), and (ii) such Liens shall not apply to any other property or assets of the Company or any of its Subsidiaries; and
(j) Liens on the property or assets of a Person which is merged into or becomes a Subsidiary of the Company after the
date hereof securing Indebtedness permitted under Section 7.02(h); provided that (i) such Liens existed at the time of such merger or at the time such Person became such a Subsidiary and were not created in anticipation thereof,
(ii) any such Lien does not extend to cover any other property or assets of the Company or any Subsidiary and (iii) in the case of property or assets of any Person merged into a Loan Party such Liens do not secure obligations exceeding
$75,000,000 in aggregate amount at any time outstanding;
(k) Liens existing on assets or properties at the time of the acquisition thereof by the Company or any Subsidiary of the
Company which were not created in anticipation of the acquisition thereof by the Company or such Subsidiary, and which (i) do not extend to or cover any assets or property of the Company or such Subsidiary other than the assets or property being
acquired or (ii) do not secure any Indebtedness not permitted under Section 7.02;
(l) any extension, renewal or replacement (or successive extensions, renewals or replacements), in whole or in part, of
any Lien referred to in the foregoing clauses (i), (j) and (k); provided, however, that such extension, renewal or replacement shall be limited to all or part of the
property which secured the Lien so extended, renewed or replaced (plus improvements on such property);
(m) rights of setoff and similar arrangements in favor of depository and securities intermediaries to secure customary
fees and similar amounts related to bank accounts or securities accounts;
(n) any encumbrance or restriction (including, without limitation, put and call agreements and transfer restrictions, but
not pledges) with respect to the Capital Stock of any joint venture or similar arrangement created pursuant to the joint venture or similar agreements with respect to such joint venture or similar arrangement;
(o) [Intentionally Omitted];
(p) [Intentionally Omitted];
(q) Liens on assets of any Foreign Subsidiary securing Indebtedness of any Foreign Subsidiary permitted by Section
7.02(j);
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(r) Liens created pursuant to and in accordance with any Permitted Receivables Securitization Facility and Liens created
in connection with Recourse Obligations for credit enhancement or liquidity purposes, pursuant to any agreement pursuant to which the Company and certain of its Subsidiaries agree to sell, assign, pledge and transfer to a credit insurance
provider or other similar entities certain Recourse Obligations;
(s) Liens on assets of any Subsidiary securing any Indebtedness of such Subsidiary permitted by Section 7.02(k);
provided that such Liens shall apply only to the assets being financed by such Indebtedness and assets related thereto (including the Capital Stock of any special purpose entity created or formed to hold or develop such assets); and
(t) other Liens on assets which secure obligations in an aggregate amount not exceeding the excess of 15% of Consolidated
Net Worth over the aggregate outstanding amount of Indebtedness then incurred in accordance with Section 7.02(l) at any time outstanding.
7.02. Indebtedness. The Borrowers shall not, nor shall the
Company permit any Subsidiary to, create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Non-Priority Indebtedness of the Company;
(c) Non-Priority Indebtedness of Subsidiaries of the Company that are Subsidiary Guarantors;
(d) Indebtedness outstanding on the date hereof and listed on Schedule 7.02 and any refinancings, refundings,
renewals or extensions thereof; provided that the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount
paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder; provided further that the direct or contingent obligor with respect to
such Indebtedness is not changed.
(e) Indebtedness of the Company or any Subsidiary to the Company or any Subsidiary;
(f) guarantees by the Company or any Subsidiary in respect of Indebtedness otherwise permitted hereunder of any
Subsidiary, other than guarantees by a Domestic Subsidiary in respect of Indebtedness of a Foreign Subsidiary;
(g) Indebtedness incurred to finance the acquisition, construction or improvement of any fixed or capital assets,
including under Capitalized Leases and Synthetic Leases, and any Indebtedness assumed in connection with the acquisition of any assets or secured by a Lien on such assets prior to the acquisition thereof, and extensions, renewals and replacements
of any such Indebtedness that do not increase the outstanding principal amount thereof, provided that the aggregate outstanding principal amount of Indebtedness permitted by this clause (g) shall not at any one time exceed
$50,000,000 (but, if recourse to such Person is limited to such property, then the amount of such Indebtedness of such Person shall be deemed to be limited to the lesser
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of (i) the outstanding amount of such secured Indebtedness, and (ii) the fair market value of the property subject to such Lien);
(h) Indebtedness of any Person that becomes a Subsidiary or that is merged with or into the Company or a Subsidiary after
the date hereof or related to assets or properties described in Section 7.01(k); provided that such Indebtedness exists (i) at the time such Person becomes a Subsidiary and is not created in contemplation of or in connection with
such Person becoming a Subsidiary, or (ii) at the time the property or asset is acquired, as applicable, and is not created in contemplation of or in connection with such acquisition;
(i) Indebtedness in connection with any Permitted Receivables Securitization Facility and Indebtedness created in
connection with Recourse Obligations for credit enhancement or liquidity purposes, pursuant to any agreement pursuant to which the Company and certain of its Subsidiaries agree to sell, assign, pledge and transfer to a credit insurance provider
or other similar entities certain Recourse Obligations; and
(j) Indebtedness (other than guarantees of Indebtedness of the Company) of Foreign Subsidiaries other than the Designated
Borrower;
(k) Indebtedness of any Subsidiary in respect of media production-level financings, to the extent such financings are
non-recourse to the Company or any Subsidiary Guarantor; and
(l) other Indebtedness of the Company or its Subsidiaries in an aggregate principal amount not exceeding the excess of
15% of Consolidated Net Worth over the aggregate outstanding amount of obligations secured by Liens incurred in accordance with Section 7.01(t) at any time outstanding.
7.03. Fundamental Changes. The Borrowers shall not, nor shall
the Company permit any Significant Subsidiary to, merge, dissolve, liquidate, consolidate with or into another Person, agree to or effect any acquisition of at least a majority of the Capital Stock or all or substantially all of the assets of any
Person or any division or line of business of any 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:
(a) so long as no Default exists or would result therefrom, the Company may merge or consolidate with any other Person provided
that the Company shall be the continuing or surviving Person;
(b) any Significant Subsidiary may merge with (i) the Company, provided that the Company shall be the continuing
or surviving Person, (ii) any one or more other Subsidiaries provided that when any Subsidiary Guarantor is merging with another Subsidiary, a Subsidiary Guarantor shall be the continuing or surviving Person, or (iii) any other Person provided
that such Significant Subsidiary shall be the continuing or surviving Person;
(c) any Significant Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or
otherwise) to the Company or to another Subsidiary; provided that if the transferor in such transaction is a Subsidiary Guarantor, then the transferee must either (i) be or simultaneously with such transaction become (by executing and
delivering to the
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Administrative Agent a joinder agreement, in form and substance reasonably satisfactory to the Administrative Agent, to the Subsidiary Guaranty) a Subsidiary Guarantor or (ii) be the Company;
(d) so long as no Default exists or would result therefrom, the Company or a Significant Subsidiary may acquire the stock
or other securities of, or the majority of assets of, any Person, provided that, if the consideration for such acquisition exceeds $100,000,000, not less than five (5) Business Days prior to the consummation of such proposed acquisition,
the Company shall have delivered to the Administrative Agent a certificate demonstrating compliance on a Pro Forma Basis with the financial covenants set forth in Section 7.05 hereof;
(e) the Company or any Significant Subsidiary may acquire Capital Stock of any Subsidiary of the Company existing on the
Effective Date from any then existing minority holder thereof; and
(f) the foregoing shall not restrict the consummation of the EOne Acquisition.
7.04. [Intentionally Omitted].
7.05. Financial Covenants.
(a) Consolidated Interest Coverage Ratio. The Company shall not permit the Consolidated Interest Coverage Ratio as
of the end of any fiscal quarter of the Company to be less than 3.00:1.00.
(b) Consolidated Total Leverage Ratio.
(A) Prior to the Additional Commitment Availability Date, the Company shall not permit the
Consolidated Total Leverage Ratio to exceed the applicable ratio set forth opposite such fiscal quarter in the table below:
|
Fiscal Quarter
|
Ratio
|
|
First, Second and Fourth fiscal quarters of any Fiscal Year
|
3.50:1.00
|
|
Third fiscal quarter of any Fiscal Year
|
4.00:1.00
|
(B) On and following the Additional Commitment Availability Date,
the Company shall not permit the Consolidated Total Leverage Ratio to exceed the applicable ratio set forth in the applicable column opposite such fiscal quarter
in the table below, based on the aggregate gross proceeds of Capital Stock issued by the Company after August 22, 2019 and on or prior to the Additional Commitment Availability Date (“Equity Proceeds”):
|
Fiscal Quarters ended on or about
|
Equity Proceeds of less than $1.0 billion:
|
Equity Proceeds equal to or
greater than $1.0 billion:
|
|
December 31, 2019, March 31, 2020 and June 30, 2020
|
5.65 to 1.00
|
5.40 to 1.00
|
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|
Fiscal Quarters ended on or about
|
Equity Proceeds of less than $1.0 billion:
|
Equity Proceeds equal to or
greater than $1.0 billion:
|
|
September 30, 2020
|
5.65 to 1.00
|
5.65 to 1.00
|
|
December 31, 2020, March 31, 2021 and June 30, 2021
|
5.20 to 1.00
|
4.95 to 1.00
|
|
September 30, 2021
|
5.70 to 1.00
|
5.45 to 1.00
|
|
December 31, 2021, March 31, 2022 and June 30, 2022
|
4.50 to 1.00
|
4.35 to 1.00
|
|
September 30, 2022
|
5.00 to 1.00
|
4.85 to 1.00
|
|
December 31, 2022, March 31, 2023 and June 30, 2023
|
3.80 to 1.00
|
3.60 to 1.00
|
|
September 30, 2023
|
4.30 to 1.00
|
4.10 to 1.00
|
|
December 31, 2023 and thereafter
|
3.50 to 1.00
|
3.50 to 1.00
|
provided that, in each case, (i) such ratio shall be calculated on a Pro Forma Basis for any Measurement Period including the fiscal quarter in which an acquisition or disposition occurs for
which, in the case of an acquisition, the purchase price exceeds $100,000,000 or, in the case of a disposition, the fair market value of assets or business disposed exceeds $100,000,000; (ii) following such time after the Additional Commitment
Availability Date when the Consolidated Total Leverage Ratio is no greater than 3.75 to 1.00 for at least four fiscal quarters, then, upon written notice (such notice, a “Leverage Notice”) to the Administrative Agent from the Company that an
acquisition (other than the EOne Acquisition) with an aggregate consideration greater than or equal to $500,000,000 has been consummated, then, notwithstanding the table below, the Company shall not permit the Consolidated Total Leverage Ratio to
exceed 4.00 to 1.00 for each of the five consecutive fiscal quarters following the consummation of such acquisition; and (iii) following the five consecutive fiscal quarter period set forth in clause (ii), the Company shall not permit the
Consolidated Total Leverage Ratio to exceed the applicable ratio set forth in the applicable table above for not fewer than four fiscal quarters before a subsequent Leverage Notice is delivered to the Administrative Agent
7.06. Sanctions. The Loan Parties shall not directly or, to
the knowledge of the Company, indirectly, use the proceeds of any Credit Extension, or lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture partner or other Person, (a) to fund any activities of or business
with any Person, or in any Designated Jurisdiction, that, at the time
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of such funding, is the subject of Sanctions unless otherwise licensed by OFAC or the U.S. Department of State or otherwise authorized under applicable Law, or (b) if such use of proceeds or funding will result in a
violation by any Person (including any individual or entity participating in the transaction, whether as Lender, Lead Arranger, Administrative Agent, L/C Issuer, Swing Line Lender, or otherwise) of Sanctions.
7.07. Anti-Corruption Laws. The Loan Parties shall not
directly or, to the knowledge of the Company, indirectly use the proceeds of any Credit Extension for any purpose which would breach the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010, or other similar
anti-corruption legislation in another jurisdiction in which a Borrower conducts business.
ARTICLE VIII.
EVENTS OF DEFAULT AND REMEDIES
8.01. Events of Default. Any of the following shall constitute
an Event of Default:
(a) Non-Payment. Any Borrower or any other Loan Party fails to pay (i) when and as required to be paid herein, any
amount of principal of any Loan or any L/C Obligation, or (ii) within five days after the same becomes due, any interest on any Loan or on any L/C Obligation, or any fee due hereunder, or (iii) within 30 days after the date for payment specified
on the invoice therefor, any other amount payable hereunder or under any other Loan Document; or
(b) Specific Covenants. The Company fails to perform or observe any term, covenant or agreement contained in any
of Section 6.05 or Article VII; or
(c) Other Defaults. (i) Any Loan Party fails to perform or observe any other covenant or agreement in Section
6.01 or 6.02 on its part to be performed or observed, and such failure continues for 15 days, or (ii) any Loan Party fails to perform or observe any other covenant or agreement (not specified in subsection (a) or (b)
of this Section 8.01 or clause (i) of this Section 8.01(c)) contained in any Loan Document on its part to be performed or observed and such failure continues for 30 days after receipt of notice from the Administrative
Agent or any Lender of such Default; or
(d) Representations and Warranties. Any representation or warranty made or deemed made by the Company or any other
Loan Party herein, or in any other Loan Document, or in any certificate or document required to be furnished pursuant to any Loan Document shall be materially incorrect when made or deemed made; or
(e) Cross-Default. The Company or any Subsidiary (A) fails to make any payment when due, after giving effect to
any applicable grace period (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect of any Indebtedness for borrowed money or credit received or in respect of any Capitalized Leases or in respect of any
guaranties by the Company or any Subsidiary of any such Indebtedness of another Person (other than Indebtedness hereunder) having an aggregate principal amount of more than the Threshold Amount, or (B) defaults (after giving effect to any
applicable grace period, and unless waived) with respect to any other agreement relating to any such Indebtedness having an aggregate principal amount of more than the Threshold Amount, the effect of which default is to cause, or
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to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause, with the giving of notice if required, such Indebtedness to become due prior to its stated
maturity; or
(f) Insolvency Proceedings, Etc. Any Loan Party or any of its Significant Subsidiaries institutes or consents to
the institution of any proceeding under any applicable Debtor Relief Law, or makes an assignment for the benefit of creditors; or applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer for it or for all or any material part of its property; or consents to the entry of an order for relief in an involuntary case under applicable Debtor Relief Laws; or any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar custodian is appointed without the application or consent of such Person and the appointment continues undischarged or unstayed for 60 calendar days; or any proceeding under any Debtor Relief Law relating to
any such Person or to all or any material part of its property is instituted without the consent of such Person and continues undismissed or unstayed for 60 calendar days, or an order for relief is entered in any such proceeding which order is
not stayed; or
(g) Inability to Pay Debts; Attachment. The Company or any Significant Subsidiary admits in writing its inability,
or fails generally to pay its debts as they become due; or
(h) Judgments. There is entered against the Company or any Significant Subsidiary (i) one or more final judgments
or orders for the payment of money in an aggregate amount (as to all such judgments or orders) exceeding the Threshold Amount (to the extent not covered by insurance as to which the insurer does not dispute coverage) and there is a period of 60
consecutive days during which such judgment(s) remain undischarged, unvacated, unbonded or unstayed; or
(i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which has resulted or
would reasonably be expected to result in liability of the Company under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of the Threshold Amount, or (ii) the Company or any ERISA Affiliate
fails to pay when due, after the expiration of any applicable grace period and any extension of time for payment in connection with a dispute under Title IV of ERISA, any installment payment with respect to its withdrawal liability under Section
4201 of ERISA under a Multiemployer Plan with respect to which it has withdrawal liability in an aggregate amount in excess of the Threshold Amount; or
(j) Invalidity of Loan Documents. Any material provision of any Loan Document, at any time after its execution and
delivery and for any reason other than as expressly permitted hereunder or thereunder or satisfaction in full of all the Credit Extensions and all other Obligations, ceases to be in full force and effect; or any Loan Party contests in writing the
validity or enforceability of any Loan Document; or any Loan Party denies in writing that it has any or further liability or obligation under any Loan Document, or revokes, terminates or rescinds in writing any Loan Document, except in each case
to the extent in accordance with the terms of such Loan Document; or
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(k) Change of Control. There occurs any Change of Control.
8.02. Remedies Upon Event of Default. If any Event of Default
occurs and is continuing, the Administrative Agent shall, at the request of, or may, with the consent of, the Required Lenders, take any or all of the following actions:
(a) declare the commitment of each Lender to make Loans and any obligation of each L/C Issuer 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 Borrowers;
(c) require that the Company Cash Collateralize the L/C Obligations (in an amount equal to the then Outstanding Amount
thereof); and
(d) exercise on behalf of itself, the Lenders and each L/C Issuer all rights and remedies available to it, the Lenders
and each L/C Issuer under the Loan Documents; provided, however, that upon the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under the Bankruptcy Code of the United States, the
obligation of each Lender to make Loans and any obligation of each L/C Issuer to make L/C Credit Extensions shall automatically terminate and 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 Company 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.
8.03. Application of Funds. After the exercise of remedies
provided for in Section 8.02 (or after the Loans have automatically become immediately due and payable and the L/C Obligations have automatically been required to be Cash Collateralized as set forth in the proviso to Section 8.02),
any amounts received on account of the Obligations shall, subject to the provisions of Sections 2.18(c) and (d) and 2.19(a)(ii), be applied by the Administrative Agent in the following order:
First, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including
fees, charges and disbursements of counsel to the Administrative Agent payable under Section 10.04(a) and amounts payable under Article III) payable to the Administrative Agent in its capacity
as such;
Second, to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than
principal, interest and Letter of Credit Fees) payable to the Lenders and the L/C Issuers (including fees, charges and disbursements of counsel to the respective Lenders and the applicable L/C Issuer payable under Section 10.04(a) and
amounts payable
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under Article III), ratably among them in proportion to the respective amounts described in this clause Second payable to them;
Third, 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 Third payable to them;
Fourth, to payment of that portion of the Obligations constituting unpaid principal of 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 Fourth held by them;
Fifth, to the Administrative Agent for the account of the applicable L/C Issuer, to Cash Collateralize that portion of L/C
Obligations comprised of the aggregate undrawn amount of Letters of Credit to the extent not otherwise Cash Collateralized by the Borrowers pursuant to Sections 2.04 and 2.18; and
Last, the balance, if any, after all of the Obligations then due and owing have been indefeasibly paid in full, to the
Borrowers or as otherwise required by Law.
Subject to Sections 2.04(c) and 2.18(c) and (d), amounts used to Cash Collateralize the aggregate undrawn
amount of Letters of Credit pursuant to clause Fifth above shall be applied to satisfy drawings under such Letters of Credit as they occur. If any amount remains on deposit as Cash Collateral after all Letters of Credit have either been fully
drawn or expired, such remaining amount shall be applied to the other Obligations, if any, in the order set forth above.
ARTICLE IX.
AGENT
9.01. Appointment and Authority. Each of the Lenders and L/C
Issuers hereby irrevocably appoints Bank of America to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such
powers as are delegated to the Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. Except with respect to Section 9.06, the provisions of this Article are solely
for the benefit of the Administrative Agent, the Lenders and the L/C Issuers, and neither any Borrower nor any other Loan Party shall have rights as a third party beneficiary of any of such provisions. It is understood and agreed that the use of
the term “agent” herein or in any other Loan Documents (or any other similar term) with reference to the Administrative 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 as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties.
9.02. Rights as a Lender. The Person serving as the
Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent and the term “Lender” or “Lenders” shall, unless
otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder in its individual capacity.
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Such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the
Borrowers or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders.
9.03. Exculpatory Provisions. The Administrative Agent shall
not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, the Administrative Agent:
(a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is
continuing;
(b) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be
expressly provided for herein or in the other Loan Documents); provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to
liability or that is contrary to any Loan Document or applicable law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or
termination of property of a Defaulting Lender in violation of any Debtor Relief Law; and
(c) shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall
not be liable for the failure to disclose, any information relating to any of the Borrowers or any of their respective Affiliates that is communicated to or obtained by the Person serving as the Administrative Agent or any of its Affiliates in
any capacity.
The Administrative Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 10.01 and 8.02) or (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgment. The Administrative Agent shall be deemed not to have knowledge of any
Default unless and until notice describing such Default is given to the Administrative Agent by a Borrower, a Lender or an L/C Issuer.
The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in
connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement,
instrument or document or (v) the satisfaction of any condition set forth in Article IV
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or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.
9.04. Reliance by Administrative Agent. The Administrative
Agent shall be entitled to rely upon, and, absent bad faith, gross negligence or willful misconduct, shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing
(including any electronic message, Internet or intranet website posting or other distribution) reasonably believed by it to be genuine and correct and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative
Agent also may rely upon any statement made to it orally or by telephone and reasonably believed by it to have been made by the proper Person, and, absent bad faith, gross negligence or willful misconduct, shall not incur any liability for
relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an L/C
Issuer, the Administrative Agent may presume that such condition is satisfactory to such Lender or an L/C Issuer unless the Administrative Agent shall have received notice to the contrary from such Lender or such L/C Issuer prior to the making of
such Loan or the issuance of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it with reasonable care, and, absent bad
faith, gross negligence and willful misconduct, shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
9.05. Delegation of Duties. The Administrative Agent may
perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may
perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative
Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be
responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that the Administrative Agent acted with gross negligence or willful
misconduct in the selection of such sub-agents.
9.06. Resignation of Administrative Agent.
(a) The Administrative Agent may at any time give notice of its resignation to the Lenders, the L/C Issuers and the
Borrowers. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, with the consent of the Borrowers unless an Event of Default is continuing (such consent not to be unreasonably withheld or delayed), to appoint
a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent gives notice of its resignation (or such earlier day as shall be agreed by the Required Lenders) (the “Resignation Effective Date”), then the retiring Administrative Agent
may (but shall not be obligated to) on behalf of the Lenders and the L/C Issuers, with the consent
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of the Borrowers unless an Event of Default is continuing (such consent not to be unreasonably withheld or delayed), appoint a successor Administrative Agent meeting the qualifications set forth above. Whether or not
a successor has been appointed, such resignation shall become effective in accordance with such notice on the Resignation Effective Date.
(b) If the Person serving as Administrative Agent is a Defaulting Lender pursuant to clause (d) of the definition
thereof, the Required Lenders may, to the extent permitted by applicable law, by notice in writing to the Borrowers and such Person remove such Person as Administrative Agent and, with the consent of the Borrowers unless an Event of Default is
continuing (such consent not to be unreasonably withheld or delayed), appoint a successor. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days (or such earlier day as
shall be agreed by the Required Lenders) (the “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date.
(c) With effect from the Resignation Effective Date or the Removal Effective Date (as applicable) (1) the retiring or
removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (2) except for any indemnity payments or other amounts then owed to the retiring or removed Administrative Agent,
all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each L/C Issuer directly, until such time, if any, as the Required Lenders appoint a
successor Administrative Agent as provided for above. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of
the retiring (or removed) Administrative Agent (other than as provided in Section 3.01(h) and other than any rights to indemnity payments or other amounts owed to the retiring or removed Administrative Agent as of the Resignation
Effective Date or the Removal Effective Date, as applicable), and the retiring or removed Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged
therefrom as provided above in this Section). The fees payable by the Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After the
retiring or removed Administrative Agent’s resignation or removal hereunder and under the other Loan Documents, the provisions of this Article and Section 10.04 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 (i) while the retiring or removed Administrative Agent was acting as Administrative Agent and (ii)
after such resignation or removal for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor
Administrative Agent. Notwithstanding the foregoing, the retiring or removed Administrative Agent shall continue to hold any Cash Collateral held by it on behalf of the Lenders or the L/C Issuers under any of the Loan Documents until such time as
a successor Administrative Agent is appointed.
(d) Any resignation by Bank of America as Administrative Agent pursuant to this Section shall also constitute its
resignation as an L/C Issuer and the Swing Line Lender. If Bank of America resigns as an L/C Issuer, it shall retain all the rights, powers, privileges and duties of
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an L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as an L/C Issuer and all L/C Obligations with respect thereto, including the right to require the
Lenders to make Base Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.04(c). If Bank of America resigns as the Swing Line Lender, it shall retain all the rights of the Swing Line Lender provided for
hereunder with respect to Swing Line Loans made by it and outstanding as of the effective date of such resignation, including the right to require the Lenders to make Base Rate Loans or fund risk participations in outstanding Swing Line Loans
pursuant to Section 2.05(c). Upon the appointment by the Borrowers of a successor L/C Issuer or Swing Line Lender hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to
and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer or Swing Line Lender, as applicable, (b) the retiring L/C Issuer and Swing Line Lender shall be discharged from all of their respective duties and
obligations hereunder or under the other Loan Documents, and (c) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements
satisfactory to Bank of America to effectively assume the obligations of Bank of America with respect to such Letters of Credit.
9.07. Non-Reliance on Administrative Agent and Other Lenders.
Each Lender and each L/C Issuer acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business, operations, property, financial and other conditions and creditworthiness of the Loan Parties and its own credit analysis and decision to enter into this Agreement. Each
Lender and each L/C Issuer also acknowledges and agrees that it will, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall
from time to time deem appropriate, continue to make its own appraisal of and investigation into the business, operations, property, financial and other condition and creditworthiness of the Loan Parties and its own decisions in taking or not
taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.
9.08. No Other Duties, Etc. Anything herein to the contrary
notwithstanding, none of the Joint Lead Arrangers, Bookrunners or Co-Syndication Agents listed on the cover page hereof shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its
capacity, as applicable, as the Administrative Agent, a Lender or an L/C Issuer hereunder.
9.09. Administrative Agent May File Proofs of Claim. In case
of the pendency of any proceeding under any Debtor Relief Law or any 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 any 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
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unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders, the L/C Issuers and the Administrative Agent (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Lenders, the L/C Issuers and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders, the L/C Issuers and the Administrative Agent under Sections 2.04(i)
and (j), 2.10 and 10.04) allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the
same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and each L/C Issuer to make such payments to the Administrative Agent
and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders and the L/C Issuers, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements
and advances of the Administrative Agent and its agents and counsel as provided herein, and any other amounts due the Administrative Agent under Sections 2.10 and 10.04.
Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender or any L/C Issuer any plan of reorganization,
arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or any L/C Issuer to authorize the Administrative Agent to vote in respect of the claim of any Lender or any L/C Issuer in any such proceeding.
9.10. Guaranty Matters.
(a) Reference is made to the Continuing Guaranty dated as of November 26, 2018 (the “Existing Subsidiary Guaranty”)
made by Hasbro International, Inc., in favor of the Administrative Agent, for its benefit and the benefit of the Lenders. On and as of the Effective Date, the Administrative Agent and the Lenders hereby release Hasbro International, Inc. from any
and all obligations under the Existing Subsidiary Guaranty and hereby agree that the Existing Subsidiary Guaranty shall terminate and have no further force or effect.
(b) The Company hereby acknowledges and agrees that (i) the Company Guaranty remains in full force and effect with
respect to the Obligations of the Designated Borrower, including any Obligations that may arise after the Effective Date, and hereby ratifies and affirms its obligations thereunder and (ii) the reference in the Company Guaranty to the “Credit
Agreement” shall be deemed to be a reference to this Agreement (as it may be amended, supplemented or modified from time to time).
(c) The Lenders and the L/C Issuers irrevocably authorize the Administrative Agent (a) to enter into any Subsidiary
Guaranty (and any supplement thereto) and (b) to release any Subsidiary Guarantor from its obligations under any Subsidiary Guaranty if such Person ceases to be a Subsidiary as a result of a transaction permitted hereunder Upon request by the
Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority provided for in the preceding sentence.
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9.11. Certain ERISA Matters.
(a) Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y)
covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and the Lead Arrangers and their respective Affiliates, and not, for the
avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that at least one of the following is and will be true:
(i) such Lender is not using “plan assets” (within the meaning of Section 3(42) of ERISA or otherwise)
of one or more Benefit Plans in connection with the Loans, the Letters of Credit or the Commitments,
(ii) the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for
certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions
involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset
managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement,
(iii) (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager”
(within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Letters of Credit, the
Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part
I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans,
the Letters of Credit, the Commitments and this Agreement, or
(iv) such other representation, warranty and covenant as may be agreed in writing between the
Administrative Agent, in its sole discretion, and such Lender.
(b) In addition, unless either (1) sub-clause (i) in the immediately preceding clause (a) is true with
respect to a Lender or (2) a Lender has provided another representation, warranty and covenant in accordance with sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the
date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and the Lead
Arrangers and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that none of the Administrative Agent or any
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Lead Arranger or any of their respective Affiliates is a fiduciary with respect to the assets of such Lender involved in the Loans, the Letters of Credit, the Commitments and this Agreement (including in connection
with the reservation or exercise of any rights by the Administrative Agent under this Agreement, any Loan Document or any documents related hereto or thereto).
9.12. Recovery of Erroneous Payments. Without limitation of any other provision in this Agreement, if at any time the Administrative Agent makes a payment hereunder
in error to any Lender or L/C Issuer, whether or not in respect of an Obligation due and owing by any Borrower at such time, where such payment is a Rescindable Amount, then in any such event, each Lender or L/C Issuer, as applicable, receiving
a Rescindable Amount severally agrees to repay to the Administrative Agent forthwith on demand the Rescindable Amount received by such Lender or L/C Issuer, as applicable, in immediately available funds in the currency so received, with
interest thereon, for each day from and including the date such Rescindable Amount is received by it to but excluding the date of payment to the Administrative Agent, (i) in the case of amounts denominated in Dollars, at the greater of the
Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation and (ii) in the case of amounts denominated in any other currency, at a rate in accordance with banking
industry rules on interbank compensation for such currency. Each Lender and each L/C Issuer irrevocably waives any and all defenses, including any “discharge for value” (under which a creditor might otherwise claim a right to retain funds
mistakenly paid by a third party in respect of a debt owed by another) or similar defense to its obligation to return any Rescindable Amount. The Administrative Agent shall inform each Lender or each L/C Issuer, as applicable, promptly upon
determining that any payment made to such Lender or such L/C Issuer comprised, in whole or in part, a Rescindable Amount.
ARTICLE X.
MISCELLANEOUS
10.01. Amendments, Etc. Subject to Section 3.03(b), no
amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by the Borrowers or any other Loan Party therefrom, shall be effective unless in writing signed by the Required Lenders and the
Borrowers or the applicable Loan Party, as the case may be, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that no such amendment,
waiver or consent shall:
(a) extend or increase the Commitment of any Lender (or reinstate any Commitment terminated pursuant to Section 8.02)
(including the Additional Commitment of any Lender) without the written consent of such Lender;
(b) postpone any date fixed by this Agreement or any other Loan Document for any payment (excluding mandatory
prepayments) of principal, interest, fees or other amounts due to the Lenders (or any of them) hereunder or under any other Loan Document without the written consent of each Lender directly affected thereby;
(c) reduce the principal of, or the rate of interest specified herein on, any Loan or L/C Borrowing, or any
fees or other amounts payable hereunder or under any other Loan Document without the written consent of each Lender directly affected thereby; provided, however, that
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only the consent of the Required Lenders shall be necessary (i) to amend the definition of “Default Rate” or to waive any obligation of any Borrower or any other Person to pay interest or Letter of Credit Fees at the
Default Rate or (ii) to amend any financial covenant hereunder (or any defined term used therein) even if the effect of such amendment would be to reduce the rate of interest on any Loan or L/C Borrowing or to reduce any fee payable hereunder;
(d) change Section 2.14 or Section 8.03 in a manner that would alter the pro rata sharing of payments
required thereby without the written consent of each Lender directly affected thereby;
(e) amend Section 1.06 or the definition of “Alternative Currency” in either case to add additional currencies
without the written consent of each Lender directly affected thereby;
(f) change any provision of this Section or the definition of “Required Lenders” without the written consent of each
Lender; or
(g) release the Company from the Company Guaranty without the written consent of each Lender;
and, provided further, that (i) no amendment, waiver or consent shall, unless in writing and signed by the L/C Issuers in addition to
the Lenders required above, affect the rights or duties of the L/C Issuers under this Agreement; (ii) no amendment, waiver or consent shall, unless in writing and signed by the Swing Line Lender in addition to the Lenders required above, affect
the rights or duties of the Swing Line Lender under this Agreement; (iii) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required above, affect the rights or duties of
the Administrative Agent under this Agreement or any other Loan Document; and (iv) Section 10.06(h) may not be amended, waived or otherwise modified without the consent of each Granting Lender all or any part of whose Loans are being
funded by an SPC at the time of such amendment, waiver or other modification. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder or under
any other Loan Document (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that
(x) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender and (y) any waiver, amendment, or modification requiring the consent of all Lenders or each affected Lender, only if by its terms it
affects any Defaulting Lender disproportionately adversely relative to other affected Lenders, shall require the consent of the Defaulting Lender.
If any assignee Lender is an Affiliate of the Company, then any such assignee Lender shall have no right to vote as a Lender hereunder or under any of the other Loan
Documents for purposes of granting consents or waivers or for purposes of agreeing to amendments or other modifications to any of the Loan Documents or for purposes of making requests to the Administrative Agent pursuant to Section 8.01
or 8.02, and the determination of the Required Lenders shall for all purposes of this Agreement and the other Loan Documents be made without regard to such assignee Lender’s interest in any of the
Loans or L/C Obligations. If any Lender sells a participating interest in any of the Loans or L/C Obligations to a participant, and such
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participant is the Company or an Affiliate of the Company, then such transferor Lender shall promptly notify the Administrative Agent of the sale of such participation. A transferor Lender shall have no right to vote
as a Lender hereunder or under any of the other Loan Documents for purposes of granting consents or waivers or for purposes of agreeing to amendments or modifications to any of the Loan Documents or for purposes of making requests to the
Administrative Agent pursuant to Section 8.01 or 8.02 to the extent that such participation is beneficially owned by the Company or any Affiliate of the Company, and the determination of the Required Lenders shall for all purposes
of this Agreement and the other Loan Documents be made without regard to the interest of such transferor Lender in the Loans or L/C Obligations to the extent of such participation. The provisions of this paragraph shall not apply to an assignee
Lender or participant which is also a Lender on the Effective Date or to an assignee Lender or participant which has disclosed to the other Lenders that it is an Affiliate of the Company and which, following such disclosure, has been excepted from
the provisions of this paragraph in a writing signed by the Required Lenders determined without regard to the interest of such assignee Lender or transferor Lender, to the extent of such participation, in Loans or L/C Obligations.
Notwithstanding any provision herein to the contrary, if the Administrative Agent and the Company acting together identify any ambiguity, omission, mistake, typographical error or
other defect in any provision of this Agreement or any other Loan Document (including the schedules and exhibits thereto), then the Administrative Agent and the Company shall be permitted to amend, modify or supplement such provision to cure such
ambiguity, omission, mistake, typographical error or other defect, and such amendment shall become effective without any further action or consent of any other party to this Agreement.
10.02. Notices; Effectiveness; Electronic Communication.
(a) Notices Generally. Except in the case of notices and other communications expressly permitted to be given by
telephone (and except as provided in subsection (b) below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail
or sent by facsimile as follows, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:
(i) if to a Borrower, the Administrative Agent, any L/C Issuer or the Swing Line Lender, to the
address, facsimile number, electronic mail address or telephone number specified for such Person on Schedule 10.02; and
(ii) if to any other Lender, to the address, facsimile number, electronic mail address or telephone
number specified in its Administrative Questionnaire as provided to the Administrative Agent and the Company (including, as appropriate, notices delivered solely to the Person designated by a Lender on its Administrative Questionnaire then in
effect for the delivery of notices that may contain material non-public information relating to the Borrower).
Notices and other communications sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices and
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other communications sent by facsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have
been given at the opening of business on the next bBusiness dDay for the recipient). Notices and other communications delivered through electronic
communications to the extent provided in subsection (b) below, shall be effective as provided in such subsection (b).
(b) Electronic Communications. Notices and other communications to the Lenders
and the L/C Issuers hereunder may be delivered or furnished by electronic communication (including e-mail, FpML messaging and Internet or intranet websites) pursuant to procedures
approved by the Administrative Agent, provided that the foregoing shall not apply to notices to any Lender or any L/C Issuer pursuant to Article II if such Lender or such L/C Issuer, as applicable, has notified the Administrative
Agent that it is incapable of receiving notices under such Article by electronic communication. The Administrative Agent, the Swing Line Lender, any L/C Issuer and each Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to procedures approved by it, provided that approval of such procedures may be limited to particular notices or communications.
Unless the Administrative Agent and the Company otherwise agree, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an
acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), and (ii) notices or communications posted to an Internet or intranet website shall be
deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor;
provided that, for both clauses (i) and (ii), if such notice, email or other communication is not sent during the normal business hours of the recipient, such notice, email or
communication shall be deemed to have been sent at the opening of business on the next bBusiness dDay for the recipient.
(c) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO NOT
WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY,
INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE
PLATFORM. In no event shall the Administrative Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to any Borrower, any Lender, any L/C Issuer or any other Person for losses, claims, damages,
liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of any Borrower’s, any Loan Party’s or the Administrative Agent’s transmission of Borrower Materials or notices through the Platform, any other electronic
platform or electronic messaging service, or the Internet.
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(d) Change of Address, Etc. Each of the Borrowers, the Administrative Agent, the L/C Issuers and the Swing Line
Lender may change its address, facsimile or telephone number for notices and other communications hereunder by notice to the other parties hereto. Each other Lender may change its address, facsimile or telephone number for notices and other
communications hereunder by notice to the Borrowers, the Administrative Agent, the L/C Issuers and the Swing Line Lender. In addition, each Lender agrees to notify the Administrative Agent from time to time to ensure that the Administrative Agent
has on record (i) an effective address, contact name, telephone number, facsimile number and electronic mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such Lender. Furthermore, each
Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable
such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable Law, including United States Federal and state securities Laws, to make reference to Borrower Materials that are not made available
through the “Public Side Information” portion of the Platform and that may contain material non-public information with respect to the Borrowers or its securities for purposes of United States Federal or state securities laws.
(e) Reliance by Administrative Agent, L/C Issuers and Lenders. The Administrative Agent, the L/C Issuers and the
Lenders, if acting in good faith and without gross negligence or willful misconduct, shall be entitled to rely and act upon any notices (including telephonic or electronic Committed Loan Notices, Letter of Credit Applications and Swing Line Loan
Notices) purportedly given by or on behalf of any Borrower even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms
thereof, as understood by the recipient, varied from any confirmation thereof. The Borrowers shall indemnify the Administrative Agent, each L/C Issuer, each Lender and the Related Parties of each of them from all losses, costs, expenses and
liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of any Borrower in the absence of bad faith, gross negligence or willful misconduct. All telephonic notices to and other telephonic
communications with the Administrative Agent may be recorded by the Administrative Agent, and each of the parties hereto hereby consents to such recording.
10.03. No Waiver; Cumulative Remedies. No failure by any
Lender, any L/C Issuer or the Administrative Agent to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder or under any other Loan Document shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein
provided, and provided under each other Loan Document, are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.
Notwithstanding anything to the contrary contained herein or in any other Loan Document, the authority to enforce rights and remedies hereunder and under the other Loan Documents against the Loan
Parties or any of them shall be vested exclusively in, and all actions and proceedings at law in connection with such enforcement shall be instituted and maintained exclusively by, the Administrative Agent in accordance with Section 8.02 for
the benefit of all the Lenders and the
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L/C Issuers; provided, however, that the foregoing shall not prohibit (a) the Administrative Agent from exercising on its own behalf
the rights and remedies that inure to its benefit (solely in its capacity as Administrative Agent) hereunder and under the other Loan Documents, (b) any L/C Issuer or the Swing Line Lender from exercising the rights and remedies that inure to its
benefit (solely in its capacity as L/C Issuer or Swing Line Lender, as the case may be) hereunder and under the other Loan Documents, (c) any Lender from exercising setoff rights in accordance with Section 10.08 (subject to the terms of Section
2.14), or (d) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to any Loan Party under any Debtor Relief Law; and provided further, that if at any time there is no Person acting as Administrative Agent hereunder and under the other Loan Documents, then (i) the Required Lenders shall have the rights
otherwise ascribed to the Administrative Agent pursuant to Section 8.02 and (ii) in addition to the matters set forth in clauses (b), (c) and (d) of the preceding proviso and
subject to Section 2.14, any Lender may, with the consent of the Required Lenders, enforce any rights and remedies available to it and as authorized by the Required Lenders.
10.04. Expenses; Indemnity; Damage Waiver.
(a) Costs and Expenses. Other than with respect to Taxes, which shall (except to the extent they arise from a
non-Tax claim hereunder) be governed solely by Section 3.01, the Company shall pay or reimburse (i) all reasonable out-of-pocket expenses incurred by the Administrative Agent (including the reasonable fees, charges and disbursements of a
single domestic firm and, if reasonably requested by the Administrative Agent and approved by the Company, a single foreign firm in each relevant jurisdiction, of counsel for the Administrative Agent), in connection with the syndication of the
credit facilities provided for herein, the preparation, negotiation, execution, delivery and administration of this Agreement and the other Loan Documents or any amendments, modifications or waivers of the provisions hereof or thereof (whether or
not the transactions contemplated hereby or thereby shall be consummated) and (ii) all out-of-pocket expenses incurred by the Administrative Agent, the Lenders or any L/C Issuer (including the reasonable fees, charges and disbursements of counsel
for the Administrative Agent, the Lenders and any L/C Issuer), in connection with the enforcement or protection of its rights (A) in connection with this Agreement and the other Loan Documents, including its rights under this Section, or (B) in
connection with the Loans made or Letters of Credit issued hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) Indemnification by the Company. Other than with respect to Taxes, which shall be governed solely by Section
3.01, the Company shall indemnify the Administrative Agent (and any sub-agent thereof), and each Lender and each L/C Issuer, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”)
against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses (including the reasonable fees, charges and disbursements of (A) a single domestic firm and, if reasonably requested by the
relevant Indemnitees and approved by the Company (which approval shall not be unreasonably withheld), a single foreign firm in each relevant jurisdiction, of counsel for the Indemnitees, unless a conflict exists, in which case, reasonable fees
and expenses of reasonably necessary additional counsel for the affected Indemnitee(s) shall be covered), incurred by any Indemnitee or asserted against any Indemnitee by any Person (including any
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Borrower or any other Loan Party) other than such Indemnitee and its Related Parties arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or
any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder, the consummation of the transactions contemplated hereby or thereby, or, in the case of the
Administrative Agent (and any sub-agent thereof) and its Related Parties only, the administration of this Agreement and the other Loan Documents, (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any
refusal by any L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or
release of Hazardous Materials on or from any property owned or operated by any Borrower or any of its Subsidiaries, or any Environmental Liability related in any way to any Borrower or any of its Subsidiaries, or (iv) any actual or prospective
claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by the Company or any other Loan Party, and regardless of whether any
Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent
jurisdiction by final and nonappealable judgment (or a settlement that expressly addresses indemnification) to have resulted from the gross negligence or willful misconduct of such Indemnitee, (y) result from a claim brought by the Company or any
other Loan Party against an Indemnitee for material breach of such Indemnitee’s obligations hereunder or under any other Loan Document, if the Company or such other Loan Party has obtained a final and nonappealable judgment in its favor on such
claim as determined by a court of competent jurisdiction (or a settlement that expressly addresses indemnification) or (z) arise from claims of any Lenders solely against one or more Lenders that have not resulted from any misrepresentation,
default or material breach of any of the Loan Documents by the Loan Parties (except any such claims against the Administrative Agent (in its capacity as the Administrative Agent) and the L/C Issuers (in their respective capacities as L/C Issuers)).
For purposes hereof, a “Related Person” of an indemnified person means (i) if the indemnified person is the Administrative Agent or any of its Related Parties, any of the Administrative Agent and its Related Parties, (ii) if the indemnified person
is a Lender or any of its Related Parties, any of such Lender and its Related Parties.
(c) Reimbursement by Lenders. To the extent that the Company for any reason fails to pay any amount required under
subsection (a) or (b) of this Section to be paid by it to the Administrative Agent (or any sub-agent thereof), any L/C Issuer, the Swing Line Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay
to the Administrative Agent (or any such sub-agent), such L/C Issuer, the Swing Line Lender or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity
payment is sought based on each Lender’s share of the Total Credit Exposure at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender), such payment to be made severally among them based
on each Lender’s Applicable Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought), provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related
expense, as the case may be, was incurred by or asserted against the Administrative Agent (or any such sub-agent), such L/C Issuer or the Swing Line Lender in its capacity as such, or against any Related Party of any of the foregoing
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acting for the Administrative Agent (or any such sub-agent), such L/C Issuer or the Swing Line Lender in connection with such capacity. The obligations of the Lenders under this subsection (c) are subject to
the provisions of Section 2.13(d).
(d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by applicable law, no party hereto shall
assert, and each party hereto hereby waives, and acknowledges that no other Person shall have, any claim against any other party, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual
damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use
of the proceeds thereof provided that, nothing in this Section 10.04(d) shall relieve the Company of any obligation it may have to indemnify an Indemnitee against any special, indirect, consequential or punitive damages asserted
against such Indemnitee by a third party. No Indemnitee referred to in subsection (b) above shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed to such
unintended recipients by such Indemnitee through a Platform in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby other than for direct or actual damages resulting from the gross
negligence or willful misconduct of such Indemnitee or any of its Related Persons as determined by a final and nonappealable judgment of a court of competent jurisdiction (or a settlement that expressly addresses indemnification).
(e) Payments. All amounts due under this Section shall be payable not later than 30 days after submission of an
invoice therefor.
(f) Survival. The agreements in this Section and the indemnity provisions of Section 10.02(e) shall
survive the resignation of the Administrative Agent, the L/C Issuers and the Swing Line Lender, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations.
10.05. Payments Set Aside. To the extent that any payment by
or on behalf of any Borrower is made to the Administrative Agent, any L/C Issuer or any Lender, or the Administrative Agent, any L/C Issuer or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part
thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by the Administrative Agent, such L/C Issuer or such Lender in its discretion) to be repaid
to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued
in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each Lender and each L/C Issuer severally agrees to pay to the Administrative Agent upon demand its applicable share (without duplication) of
any amount so recovered from or repaid by the Administrative Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the applicable Overnight Rate from time to time in effect, in the
applicable currency of such recovery or payment. The obligations of the Lenders and the L/C Issuers under
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clause (b) of the preceding sentence shall survive the payment in full of the Obligations and the termination of this Agreement.
10.06. Successors and Assigns.
(a) Successors and Assigns Generally. The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns permitted hereby, except that neither any Borrower nor any other Loan Party may assign or otherwise transfer any of its rights or obligations hereunder without the prior
written consent of the Administrative Agent and each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of subsection (b) of this
Section, (ii) by way of participation in accordance with the provisions of subsection (d) of this Section, (iii) by way of pledge or assignment of a security interest subject to the restrictions of subsection (f) of this Section,
or (iv) to an SPC in accordance with the provisions of subsection (h) of this Section (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in subsection (d) of this Section and, to the extent expressly contemplated
hereby, the Related Parties of each of the Administrative Agent, the L/C Issuers and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign to one or more assignees all or a portion of its
rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans (including for purposes of this subsection (b), participations in L/C Obligations and in Swing Line Loans) at the time owing to
it); provided that any such assignment shall be subject to the following conditions:
(i) Minimum Amounts.
(A) in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment
and the Loans at the time owing to it or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and
(B) in any case not described in subsection (b)(i)(A) of this Section, the aggregate amount of
the Commitment (which for this purpose includes Loans outstanding thereunder) or, if the Commitment is not then in effect, the principal outstanding balance of the Loans of the assigning Lender subject to each such assignment, determined as of
the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date, shall not be less than $10,000,000 unless
each of the Administrative Agent and, so long as no Event of Default has occurred and is continuing, the Company otherwise consents (each such consent not to be unreasonably withheld or delayed); provided, however, that concurrent
assignments to members of an Assignee Group and concurrent assignments from members of an Assignee Group to a
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single assignee (or to an assignee and members of its Assignee Group) will be treated as a single assignment for purposes of determining whether such minimum amount has been met.
(ii) Proportionate Amounts. Each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loans or the Commitment assigned, except that this clause (ii) shall not apply to the Swing Line Lender’s rights and
obligations in respect of Swing Line Loans;
(iii) Required Consents. No consent shall be required for any assignment except to the extent
required by subsection (b)(i)(B) of this Section and, in addition:
(A) the consent of the Company (such consent not to be unreasonably withheld or delayed) shall be
required unless (1) an Event of Default has occurred and is continuing at the time of such assignment or (2) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund; provided that the Company shall be deemed to have
consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received written notice thereof;
(B) the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed)
shall be required if such assignment is to a Person that is not a Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender;
(C) the consent of each L/C Issuer (such consent not to be unreasonably withheld or delayed) shall be
required for any assignment that increases the obligation of the assignee to participate in exposure under one or more Letters of Credit (whether or not then outstanding); and
(D) the consent of the Swing Line Lender (such consent not to be unreasonably withheld or delayed)
shall be required for any assignment.
(iv) Assignment and Assumption. The parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a processing and recordation fee in the amount of $3,500; provided, however, that the Administrative Agent may, in its sole discretion, elect to waive such
processing and recordation fee in the case of any assignment. The assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire (and the Administrative Agent shall promptly deliver a copy thereof to
the Company).
(v) No Assignment to Certain Persons. No such assignment shall be made (A) to any Borrower or
any of the Borrowers’ Subsidiaries, (B) to any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (B), or (C) to a
natural
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Person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of a natural Person).
(vi) Notes. The assigning Lender shall deliver all Notes evidencing the assigned interests to
the Company or the Administrative Agent (and the Administrative Agent shall deliver such Notes to the Company).
(vii) Qualifying Banks. In relation to any Borrower that is organized under the law of
Switzerland, the Administrative Agent and the Lenders shall ensure that assignments or transfers may not be effected if after giving effect to such assignments or transfers there would be more than 20 Lenders (including participants and
subparticipants) that are not Qualifying Banks in relation to any such Borrower.
(viii) No Assignment Resulting in Additional Indemnified Taxes. No such assignment shall be
made to any Person that would result in the imposition of Indemnified Taxes in excess of the Indemnified Taxes that would be imposed in the absence of such assignment.
(ix) Certain Additional Payments. In connection with any assignment of rights and obligations
of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative
Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent
of the Company and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and
satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent, any L/C Issuer or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of
all Loans and participations in Letters of Credit and Swing Line Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder
shall become effective under applicable Law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
(x) Costs and Fees. Any Affiliate or Approved Fund that is assigned any portion of any
Commitment or Loan hereunder will not charge the Borrowers any fees or costs in connection with any funding obligations, including the funding of Alternative Currencies, that are higher than those charged by the assigning Lender. Nothing in this
clause (x) shall otherwise be deemed to alter or affect in any manner the Company’s reimbursement obligations under Article II in respect of such assignee.
(xi) Alternative Currencies. At all times prior to the occurrence of a Default or Event of Default, any assignee hereunder shall certify upon acceptance of the assignment
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that it will make available to the Borrowers all Alternative Currencies specified in this Agreement on the terms and conditions set forth herein.
Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c) of this Section, from and after the effective date specified in each Assignment
and Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and
obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be subject to the obligations under and entitled to the benefits of Sections 3.01, 3.04,
3.05, and 10.04 with respect to facts and circumstances occurring prior to the effective date of such assignment; provided, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a
Defaulting Lender. Upon request, each Borrower (at its expense) shall execute and deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this
subsection shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with subsection (d) of this Section.
(c) Register. The Administrative Agent, acting solely for this purpose as an agent of the Borrowers (and such
agency being solely for tax purposes), shall maintain at the Administrative Agent’s Office a copy of each Assignment and Assumption delivered to it (or the equivalent thereof in electronic form) and a register for the recordation of the names and
addresses of the Lenders, and the Commitments of, and principal amounts (and stated interest) of the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). Upon its receipt of a
duly completed Assignment and Assumption executed by an assigning Lender and an assignee, the processing and recordation fee referred to in subsection (b) of this Section 10.06 and any written consent to such assignment required
by subsection (b) of this Section 10.06, the Administrative Agent shall accept such Assignment and Assumption and record the information contained therein in the Register. The entries in the Register shall be conclusive, absent
demonstrable error, and the Borrowers, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement. The Register
shall be available for inspection by the Borrowers and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
(d) Participations. Any Lender may at any time, without the consent of, or notice to, any Borrower, the
Administrative Agent, the L/C Issuers or the Swing Line Lender, sell participations to any Person (other than a natural Person, or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of a natural
Person, a Defaulting Lender or the Company or any of the Company’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its
Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such
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Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrowers, the
Administrative Agent, the Lenders and the L/C Issuers shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. For the avoidance of doubt, each Lender shall be
responsible for the indemnity under Section 10.04(c) without regard to the existence of any participation.
Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and the other Loan
Documents and to approve any amendment, modification or waiver of any provision of this Agreement or the other Loan Documents; provided that such agreement or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, waiver or other modification described in clause (a), (b) or (c) of the first proviso to Section 10.01 that directly affects such
Participant (it being understood that (i) any vote to rescind any acceleration made pursuant to Section 8.02 of amounts owing with respect to the Loans and other Obligations and (ii) any modifications of the provisions relating to
amounts, timing or application of prepayments of Loans and other Obligations shall not require the approval of such Participant). Subject to subsection (e) of this Section, each Borrower agrees that each Participant shall be entitled to
the benefits of Sections 3.01, 3.04 and 3.05 to the same extent (subject to the requirements in those sections, including timely delivery of forms pursuant to Section 3.01) as if it were a Lender of the relevant Loan and had acquired its interest by assignment pursuant to subsection (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions
of Sections 3.06 and 10.13 as if it were an assignee under subsection (b) of this Section and (B) shall not be entitled to receive any greater payment under Sections 3.01 or 3.04, with respect to any participation, than the Lender from whom it acquired the applicable participation would have been entitled to receive, except, subject to subsection (e) of this Section,
to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at the Borrowers’ request and
expense, to use reasonable efforts to cooperate with the Borrowers to effectuate the provisions of Section 3.06 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section
10.08 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.14 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as an agent of
the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant
Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any
commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in
registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the
Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For
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the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(e) Limitations upon Participant Rights. A Participant shall not be entitled to receive any greater payment under
Section 3.01 or 3.04 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Company’s
prior written consent. A Participant shall not be entitled to the benefits of Section 3.01 unless the Company is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrowers, to
comply with Section 3.01(e) as though it were a Lender.
(f) Certain Pledges. Any Lender may at any time pledge or assign a security interest in all or any portion of its
rights under this Agreement (including under its Note(s), if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall
release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(g) [Intentionally Omitted].
(h) Special Purpose Funding Vehicles. Subject to clause (vii) of subsection (b) above, any Lender
(a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Company (an “SPC”) the option to provide all or any part of any
Committed Loan that such Granting Lender would otherwise be obligated to make pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Committed Loan, and (ii) such granting shall
not relieve the Granting Lender of any of its obligations under this Agreement, including, without limitation, its obligation to fund a Loan if, for any reason, its SPC fails to fund any such Loan. Each party hereto hereby agrees that (i) neither
the grant to any SPC nor the exercise by any SPC of such option shall increase the costs or expenses or otherwise increase or change the obligations of the Borrowers under this Agreement (including its obligations under Section 3.04),
(ii) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, provided, however, that the Granting Lender shall remain liable for such obligations, and (iii) the
Granting Lender shall for all purposes, including the approval of any amendment, waiver or other modification of any provision of any Loan Document, remain the lender of record hereunder. The making of a Committed Loan by an SPC hereunder shall
utilize the Commitment of the Granting Lender to the same extent, and as if, such Committed Loan were made by such Granting Lender. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of
this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior debt of any SPC, it will not institute against, or join any other Person in instituting against,
such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof, provided, however, that each Granting Lender hereby agrees to indemnify, save
and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such SPC during such period of forbearance. Without limiting the indemnification obligations of
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indemnifying Lender pursuant to this subsection, in the event that the indemnifying Lender fails timely to compensate any Loan Party for such claim, any Loans held by the relevant SPC shall, if requested by the
Borrower, be assigned promptly to the Granting Lender that administers the SPC and the granting of rights pursuant to this subsection to such SPC shall be void. Notwithstanding anything to the contrary contained herein, any SPC may (i) with notice
to, but without prior consent of the Company and the Administrative Agent and with the payment of a processing fee in the amount of $3,500 (which processing fee may be waived by the Administrative Agent in its sole discretion), assign all or any
portion of its right to receive payment with respect to any Committed Loan to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Committed Loans to any rating agency, commercial paper
dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC.
(i) Resignation as L/C Issuer or Swing Line Lender after Assignment. Subject to clause (vii) of subsection (b) above, if at any time any L/C Issuer or the Swing Line
Lender assigns all of its Commitment and Loans pursuant to subsection (b) above, such L/C Issuer or the Swing Line Lender may, (i) upon 30 days’ notice to the Company and the Lenders, resign as L/C Issuer and/or (ii) upon 30 days’ notice to
the Company, resign as Swing Line Lender. In the event of any such resignation as L/C Issuer or the Swing Line Lender, the Company shall be entitled to appoint from among the Lenders a successor L/C Issuer or Swing Line Lender hereunder; provided,
however, that no failure by the Company to appoint any such successor shall affect the resignation of the applicable L/C Issuer or the Swing Line Lender as L/C Issuer or Swing Line Lender, as the case may be. If the applicable L/C Issuer
resigns as a L/C Issuer, it shall retain all the rights, powers, privileges and duties of an L/C Issuer hereunder with respect to all its respective Letters of Credit outstanding as of the effective date of its resignation as L/C Issuer and all L/C
Obligations with respect thereto (including the right to require the Lenders to make Base Rate Committed Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.04(e)). If the applicable Swing Line Lender resigns as
Swing Line Lender, it shall retain all the rights and obligations of the Swing Line Lender provided for hereunder with respect to Swing Line Loans made by it and outstanding as of the effective date of such resignation, including the right to
require the Lenders to make Base Rate Committed Loans or fund risk participations in outstanding Swing Line Loans pursuant to Section 2.05(c). Upon the appointment of a successor L/C Issuer and/or Swing Line Lender, (a) such successor shall
succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer or Swing Line Lender, as the case may be, and (b) the successor L/C Issuer shall issue letters of credit in substitution for the
applicable Letters of Credit, if any, outstanding at the time of such succession or make other arrangements reasonably satisfactory to the applicable retiring L/C Issuer to effectively assume the obligations of the applicable retiring L/C Issuer
with respect to such Letters of Credit.
10.07. Treatment of Certain Information; Confidentiality. Each
of the Administrative Agent, the Lenders and the L/C Issuers agrees on behalf of itself and its Related Parties to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its Affiliates
and to its and its Affiliates’ respective partners, directors, officers, employees, agents, trustees, advisors and representatives (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature
of such Information and instructed to keep such Information confidential and that the
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Administrative Agent, the relevant Lender or the relevant L/C Issuer, as the case may be, shall be responsible to the Loan Parties and their Affiliates for any failure by any such Persons who are controlled
Affiliates of the Administrative Agent, the relevant Lender or the relevant L/C Issuer, as the case may be, to maintain the confidentiality of the Information), (b) to the extent required or requested by any regulatory authority purporting to have
jurisdiction over such Person or its Related Parties (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the extent required by applicable laws or regulations or by any subpoena or similar
legal process (provided that, in the case of this clause (c) or the foregoing clause (b), the Administrative Agent, such L/C Issuer or such Lender, as the case may be, shall (x) disclose only the information required and (y)
except with respect to any audit or examination conducted by bank accountants or any governmental agency, securities or bank regulatory authority exercising examination or regulatory authority and only to the extent permitted by applicable law and
regulation, notify the Company in writing of such disclosure and will use its best efforts to send such written notice in advance of such disclosure, so that the Company may seek a protective order or other appropriate remedy), (d) to any other
party hereto, (e) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f)
subject to an agreement containing provisions substantially the same as those of this Section, (i) to any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights and obligations under this Agreement or any
Eligible Assignee invited to be a Lender pursuant to Section 2.16(a) or (ii) any actual or prospective party (or its Related Parties) to any swap, derivative or other transaction under which payments are to be made by reference to the
Borrowers and their obligations, this Agreement or payments hereunder, (g) on a confidential basis to (i) any rating agency in connection with rating the Borrowers or their Subsidiaries or the credit facilities provided hereunder or (ii) the CUSIP
Service Bureau or any similar agency in connection with the application, issuance, publishing and monitoring of CUSIP numbers or other market identifiers with respect to the credit facilities provided hereunder, (h) with the consent of the Company
or (i) to the extent such Information (x) becomes publicly available other than as a result of a breach of this Section, (y) becomes available to the Administrative Agent, any Lender, any L/C Issuer or any of their respective Affiliates on a
nonconfidential basis from a source other than any Loan Party or any of its Affiliates (and other than a source acting on its or their behalf), and not known by the Administrative Agent, such Lender or such L/C Issuer to be in violation of
confidentiality to any such Loan Party or any of its Affiliates or (z) is independently discovered or developed by a party hereto without utilizing any Information received from the Borrower or violating the terms of this Section 10.07. In
addition, the Administrative Agent, the L/C Issuers and the Lenders may disclose the existence of this Agreement and information about this Agreement to market data collectors, similar service providers to the lending industry and service providers
to the Administrative Agent, the L/C Issuers and the Lenders in connection with the administration of this Agreement, the other Loan Documents, the Commitments and the Loans.
For purposes of this Section, “Information” means all information supplied by or on behalf of the Company or any Subsidiary pursuant to this Agreement or any other Loan Document or in
anticipation or preparation herefor or therefor, or obtained by the Administrative Agent, and any Lenders or any L/C Issuers in the course of any review of the books and records of any Loan Party, other than any such information that is available
to the Administrative Agent, any Lender or any L/C Issuer on a nonconfidential basis prior to disclosure by the Company or any
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Subsidiary, without a duty of confidentiality to any Loan Party or any of its Affiliates being violated.
Each of the Administrative Agent, the Lenders and the L/C Issuers acknowledges that (a) the Information may include material non-public information concerning the Company or a Subsidiary, as the case
may be, (b) it has developed compliance procedures regarding the use of material non-public information and (c) it will handle such material non-public information in accordance with applicable Law, including Federal and state securities Laws.
10.08. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender and each L/C Issuer is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable law, to set off and apply any and all deposits (general or special, time or demand,
provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time owing by such Lender to or for the credit or the account of any Borrower or any other Loan Party against any and all of the
obligations of such Borrower or such Loan Party now or hereafter existing under this Agreement or any other Loan Document to such Lender or such L/C Issuer or their respective Affiliates, irrespective of whether or not such Lender, L/C Issuer or
Affiliate shall have made any demand under this Agreement or any other Loan Document and although such obligations of such Borrower or such Loan Party may be contingent or unmatured or are owed to a branch, office or Affiliate of such Lender or
such L/C Issuer different from the branch, office or Affiliate holding such deposit or obligated on such indebtedness; provided, that in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set
off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.19 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and
deemed held in trust for the benefit of the Administrative Agent, the L/C Issuers and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing
to such Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender, each L/C Issuer and their respective Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff)
that such Lender, such L/C Issuer or their respective Affiliates may have. Each Lender and each L/C Issuer agrees to notify the Company and the Administrative Agent promptly after any such setoff and application, provided that the failure
to give such notice shall not affect the validity of such setoff and application.
10.09. Interest Rate Limitation. Notwithstanding anything to
the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If the Administrative
Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to the Company. In determining whether the
interest contracted for, charged, or received by the Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal as an expense, fee, or
premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in
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equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder.
10.10. Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement, the other
Loan Documents and any separate letter agreements with respect to fees payable to the Administrative Agent or any L/C Issuer constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter hereof. Except as provided in Section 4.01, this Agreement shall become effective when it shall have been executed by the Administrative Agent and when the
Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature page of this Agreement by telecopy or other
electronic imaging means (e.g. “pdf’ or “tif’) shall be effective as delivery of a manually executed counterpart of this Agreement.
10.11. Survival of Representations and Warranties. All
representations and warranties made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the Administrative Agent and each Lender, regardless of any investigation made by the Administrative Agent or any Lender or on their behalf and notwithstanding that the
Administrative Agent or any Lender may have had notice or knowledge of any Default at the time of any Credit Extension, and, to the extent made, shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall
remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.
10.12. Severability. If any provision of this Agreement or the
other Loan Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the
parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable
provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. Without limiting the foregoing provisions of this Section 10.12, if and to the
extent that the enforceability of any provisions in this Agreement relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in good faith by the Administrative Agent, any L/C Issuer or the Swing Line Lender, as
applicable, then such provisions shall be deemed to be in effect only to the extent not so limited.
10.13. Replacement of Lenders. If the Borrowers are entitled
to replace a Lender pursuant to the provisions of Section 3.06, or if any Lender is a Defaulting Lender or a Non-Consenting Lender, then the Borrowers may, at their sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 10.06), all of its interests, rights (other than its
existing rights to payments pursuant
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to Sections 3.01 and 3.04) and obligations under this Agreement and the related Loan Documents to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a
Lender accepts such assignment), provided that:
(a) the Company shall have paid (or caused a Subsidiary to pay) to the Administrative Agent the assignment fee specified
in Section 10.06(b) (unless the Administrative Agent waives such fee);
(b) such Lender shall have received payment of an amount equal to 100% of the outstanding principal of its Loans and L/C
Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 3.05) from the assignee (to the extent of such outstanding principal
and accrued interest and fees) or the Company or applicable Subsidiary (in the case of all other amounts);
(c) in the case of any such assignment resulting from a claim for compensation under Section 3.04 or payments
required to be made pursuant to Section 3.01, such assignment will result in a reduction in such compensation or payments thereafter;
(d) such assignment does not conflict with applicable Law; and
(e) in the case of an assignment resulting from a Lender becoming a Non-Consenting Lender, the applicable assignee shall
have consented to the applicable amendment, waiver or consent.
A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Company to require such
assignment and delegation cease to apply.
Each party hereto agrees that (a) an assignment required pursuant to this Section 10.13 may be effected pursuant to an Assignment and Assumption executed by the Borrower, the
Administrative Agent and the assignee and (b) the Lender required to make such assignment need not be a party thereto in order for such assignment to be effective and shall be deemed to have consented to and be bound by the terms thereof; provided
that, following the effectiveness of any such assignment, the other parties to such assignment agree to execute and deliver such documents necessary to evidence such assignment as reasonably requested by the applicable Lender, provided further that any such documents shall be without recourse to or warranty by the parties thereto.
Notwithstanding anything in this Section to the contrary, (i) any Lender that acts as an L/C Issuer may not be replaced hereunder at any time it has any Letter of Credit outstanding
hereunder unless arrangements satisfactory to such Lender (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 reasonably satisfactory to such L/C Issuer) 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 except in accordance with the terms of Section 9.06.
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10.14. Governing Law; Jurisdiction; Etc.
(a) GOVERNING LAW. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF
ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT (EXCEPT, AS TO ANY OTHER LOAN DOCUMENT, AS EXPRESSLY SET FORTH THEREIN) AND THE TRANSACTIONS CONTEMPLATED HEREBY
AND THEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK; PROVIDED, HOWEVER, THAT (A) FOR THE PURPOSES OF SECTION 4.03(B) AND (C), THE INTERPRETATION OF THE DEFINITION OF
“MATERIAL ADVERSE EFFECT” (AND WHETHER OR NOT A “MATERIAL ADVERSE EFFECT” HAS OCCURRED OR WOULD REASONABLY BE EXPECTED TO OCCUR) AS USED IN SUCH SECTIONS AND (B) THE DETERMINATION OF WHETHER THE EONE ACQUISITION HAS BEEN CONSUMMATED IN ACCORDANCE
WITH THE TERMS OF THE EONE ACQUISITION AGREEMENT SHALL, IN EACH CASE, BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE PROVINCE OF ONTARIO AND THE LAWS OF CANADA APPLICABLE THEREIN, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
(b) SUBMISSION TO JURISDICTION. THE COMPANY AND EACH OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT
IT WILL NOT COMMENCE ANY ACTION, LITIGATION OR PROCEEDING OF ANY KIND OR DESCRIPTION, WHETHER IN LAW OR EQUITY, WHETHER IN CONTRACT OR IN TORT OR OTHERWISE, AGAINST THE ADMINISTRATIVE AGENT, ANY LENDER, ANY L/C ISSUER, OR ANY RELATED PARTY OF THE
FOREGOING IN ANY WAY RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS RELATING HERETO OR THERETO, IN ANY FORUM OTHER THAN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT
COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE JURISDICTION OF SUCH COURTS AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH
ACTION, LITIGATION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION,
LITIGATION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE
ADMINISTRATIVE AGENT, ANY LENDER OR ANY L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE COMPANY OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY
JURISDICTION.
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(c) WAIVER OF VENUE. THE COMPANY AND EACH OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH
(B) OF THIS SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
(d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR
NOTICES IN SECTION 10.02. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
10.15. Waiver of Jury Trial. EACH PARTY HERETO HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS,
THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
10.16. No Advisory or Fiduciary Responsibility. In connection
with all aspects of each transaction contemplated hereby, each Borrower acknowledges and agrees, and acknowledges its Affiliates’ understanding, that: (i) the credit facilities provided for hereunder and any related arranging or other services in
connection therewith (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document) are an arm’s-length commercial transaction between the Borrowers and their respective Affiliates, on the one
hand, and the Administrative Agent, the Lead Arrangers, the L/C Issuers and the Lenders, on the other hand, and the Borrowers are capable of evaluating and understanding and understand and accept the terms, risks and conditions of the
transactions contemplated hereby and by the other Loan Documents (including any amendment, waiver or other modification hereof or thereof); (ii) in connection with the process leading to such transaction, the Administrative Agent, each Lead
Arranger, each L/C Issuer and each Lender is and has been acting solely as a principal and is not the financial advisor, agent or fiduciary, for any of the Borrowers or any of their respective Affiliates, stockholders, creditors or employees or
any other Person; (iii) neither the Administrative Agent, nor any Lead Arranger nor any L/C Issuer nor any
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Lender has assumed or will assume an advisory, agency or fiduciary responsibility in favor of any Borrower with respect to any of the transactions contemplated hereby or the process leading thereto, including with
respect to any amendment, waiver or other modification hereof or of any other Loan Document (irrespective of whether the Administrative Agent, any Lead Arranger, any L/C Issuer or any Lender has advised or is currently advising any of the Borrowers
or their respective Affiliates on other matters) and neither the Administrative Agent, nor any Lead Arranger nor any L/C Issuer nor any Lender has any obligation to any of the Borrowers or their respective Affiliates with respect to the
transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; (iv) the Administrative Agent, the Lead Arrangers, the L/C Issuers, the Lenders and their respective Affiliates may be engaged in
a broad range of transactions that involve interests that differ from those of the Borrowers and their respective Affiliates, and neither the Administrative Agent, nor any Lead Arranger nor any L/C Issuer nor any Lender has any obligation to
disclose any of such interests by virtue of any advisory, agency or fiduciary relationship; and (v) the Administrative Agent, the Lead Arrangers, the L/C Issuers and the Lenders have not provided and will not provide any legal, accounting,
regulatory or tax advice with respect to any of the transactions contemplated hereby (including any amendment, waiver or other modification hereof or of any other Loan Document) and each Borrower has consulted its own legal, accounting, regulatory
and tax advisors to the extent it has deemed appropriate. Each Borrower hereby waives and releases, to the fullest extent permitted by law, any claims that it may have with respect to actions taken or omitted with respect to this Agreement through
the Effective Date against the Administrative Agent, the Lead Arrangers, the L/C Issuers and the Lenders with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.
10.17. Electronic Execution of Assignments and Certain Other
Documents. The words “execute,” “execution,” “signed,” “signature,” and words of like import in or related to any document to be signed in connection with this Agreement and the transactions contemplated hereby (including without
limitation Assignments and Assumptions, amendments or other modifications, Committed Loan Notices, Swing Line Loan Notices, waivers and consents) shall be deemed to include electronic signatures, the electronic matching of assignment terms and
contract formations on electronic platforms approved by the Administrative Agent, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the
use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and
Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act; provided that notwithstanding anything contained herein to the contrary, neither the Administrative Agent nor any Lender is under any
obligation to agree to accept electronic signatures in any form or in any format unless expressly agreed to by the Administrative Agent or Lender pursuant to procedures approved by it; and provided further without limiting the
foregoing, upon the request of any party, any electronic signature shall be promptly followed by a manually executed counterpart.
10.18. USA PATRIOT Act Notice. Each Lender that is subject to
the Act (as hereinafter defined) and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrowers and any Subsidiary Guarantor that pursuant to the requirements of
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the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”), it is required to obtain, verify and record information that identifies the Borrowers and any Subsidiary Guarantor,
which information includes the name and address of each Borrower and any such Subsidiary Guarantor and other information that will allow such Lender or the Administrative Agent, as applicable, to identify such Borrower or such Subsidiary Guarantor
in accordance with the Act. Each Borrower shall, promptly following a request by the Administrative Agent or any Lender, provide all documentation and other information that the Administrative Agent or such Lender requests in order to comply with
its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the Act.
10.19. Judgment Currency. If, for the purposes of obtaining
judgment in any court, it is necessary to convert a sum due hereunder or any other Loan Document in one currency into another currency, the rate of exchange used shall be that at which in accordance with normal banking procedures the
Administrative Agent could purchase the first currency with such other currency on the Business Day preceding that on which final judgment is given. The obligation of each Borrower in respect of any such sum due from it to the Administrative
Agent or the Lenders hereunder or under the other Loan Documents shall, notwithstanding any judgment in a currency (the “Judgment Currency”) other than that in which such sum is denominated in accordance with the applicable provisions of
this Agreement (the “Agreement Currency”), be discharged only to the extent that on the Business Day following receipt by the Administrative Agent of any sum adjudged to be so due in the Judgment Currency, the Administrative Agent may in
accordance with normal banking procedures purchase the Agreement Currency with the Judgment Currency. If the amount of the Agreement Currency so purchased is less than the sum originally due to the Administrative Agent from any Borrower in the
Agreement Currency, such Borrower agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the Administrative Agent or the Person to whom such obligation was owing against such loss. If the amount of the Agreement
Currency so purchased is greater than the sum originally due to the Administrative Agent in such currency, the Administrative Agent agrees to return the amount of any excess to such Borrower (or to any other Person who may be entitled thereto
under applicable law).
10.20. Acknowledgement and Consent to Bail-In of EEA Financial
Institutions. Solely to the extent that any Lender or L/C Issuer that is an EEA Financial Institution is a party to this Agreement and notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement
or understanding among any such parties, each party hereto acknowledges that any liability of any Lender or L/C Issuer that is an EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject
to the Write-Down and Conversion Powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a) the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities
arising hereunder which may be payable to it by any Lender or L/C Issuer that is an EEA Financial Institution; and
(b) the effects of any Bail-In Action on any such liability, including, if applicable:
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(i) a reduction in full or in part or cancellation of any such liability;
(ii) a conversion of all, or a portion of, such liability into shares or other instruments of
ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any
rights with respect to any such liability under this Agreement or any other Loan Document; or
(iii) the variation of the terms of such liability in connection with the exercise of the Write-Down
and Conversion Powers of any EEA Resolution Authority.
10.21. Existing Credit Agreement Amended and Restated. On the
Effective Date, this Agreement shall amend, restate and supersede the Existing Credit Agreement in its entirety. On the Effective Date, (a) the rights and obligations of the parties evidenced by the Existing Credit Agreement shall be evidenced by
this Agreement and the other Loan Documents and (b) the Existing Letters of Credit shall continue to be issued and outstanding pursuant hereto, and from and after the Effective Date shall be governed by the terms and conditions hereof.
10.22. Acknowledgement Regarding Any Supported QFCs. To the
extent that the Loan Documents provide support, through a guarantee or otherwise, for any Swap Contract or any other agreement or instrument that is a QFC (such support, “QFC Credit Support”, and each such QFC, a “Supported QFC”),
the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act
(together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any
Supported QFC may in fact be stated to be governed by the Laws of the State of New York and/or of the United States or any other state of the United States):
(a) In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a
proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in
property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit
Support (and any such interest, obligation and rights in property) were governed by the Laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a
proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised
to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the Laws of the United States or a state of the United States. Without
limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no
138
event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.
(b) As used in this Section 10.22, the following terms have the following meanings:
“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
“Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered
bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
[Signature pages omitted]
139
Annex B
Form of Loan Notice
[see attached]
EXHIBIT A
FORM OF COMMITTED LOAN NOTICE
Date: ,
To: Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Second Amended and Restated Revolving Credit Agreement, dated as of September 20, 2019 (as amended, supplemented or otherwise modified in writing from time to time, the “Agreement”;
the terms defined therein being used herein as therein defined), among Hasbro, Inc., a Rhode Island corporation (the “Company”), Hasbro SA, a corporation organized under the laws of Switzerland and wholly owned subsidiary of the Company (the
“Designated Borrower” and, together with the Company, the “Borrowers”), the Lenders from time to time party thereto, Bank of America, N.A., as Administrative Agent, Swing Line Lender and an L/C Issuer, and the other L/C Issuers from
time to time party thereto.
The [Company] [Designated Borrower] hereby requests (select one):
| ________ | A Borrowing of Committed Loans | ________ |
A conversion or continuation of
|
||
| Committed Loans |
|
1.
|
On (a Business Day).
|
|
|
2.
|
In the amount of .
|
|
|
3.
|
Comprised of .
[Type of Committed Loan requested]
|
|
|
|
||
|
4.
|
In the following currency:
|
|
|
5.
|
For Term Benchmark Rate Loans: with an Interest Period of months.
|
Except as specified in the attached schedule, if any, the representations and warranties of the Borrowers set forth in Article V of the Agreement (except for Sections 5.05(b) and 5.06 of the
Agreement) are true and correct in all material respects (except that all representations and warranties that are qualified by materiality are true and correct in all respects) on and as of the date of Credit Extension requested hereby, except to
the extent such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (or true and correct in all respects for any such representations or warranties that are
qualified by materiality) as of such earlier date. On and as of the date of the Credit Extension requested hereby, no Default exists or would result from such Credit Extension.
| [HASBRO, INC.] [HASBRO SA] | |||
|
|
By:
|
||
| Name: |
|||
| Title: |
|||
[Signature Page to Committed Loan Notice]
Exhibit 10.2
EXECUTION VERSION
FIRST AMENDMENT TO TERM LOAN AGREEMENT
THIS FIRST AMENDMENT TO TERM LOAN AGREEMENT (this “Agreement”), dated as of
April 12, 2023 (the “First Amendment Effective Date”), is entered into among Hasbro, Inc., a Rhode Island corporation (the “Borrower”), the Lenders party hereto and Bank of America, N.A., as Administrative Agent (the “Administrative Agent”). All capitalized terms used
herein and not otherwise defined herein shall have the meanings given to such terms in the Existing Term Loan Agreement (as defined below) or the Amended Term Loan Agreement (as defined below), as applicable.
RECITALS
WHEREAS, the Borrower, the Lenders and the Administrative Agent are party to that certain Term Loan Agreement, dated as of September 20, 2019 (as
amended, restated, amended and restated, extended, supplemented, or otherwise modified in writing from time to time prior to the First Amendment Effective Date, the “Existing Term Loan
Agreement” and, the Existing Term Loan Agreement as amended by this Agreement, the “Amended Term Loan Agreement”); and
WHEREAS, the Borrower has requested that the Lenders amend the Existing Term Loan Agreement as set forth below.
NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Amendments to the Existing Term Loan Agreement. (a) Subject to the satisfaction of the conditions precedent set forth in Section 2 hereof:
(i) The Existing Term Loan Agreement is
hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text or stricken text) and to add the single-underlined text (indicated textually in the same manner as the following example: single-underlined text or single-underlined text) as set
forth in the blackline attached as Annex A hereto (the Existing Term Loan Agreement, as so amended and restated, the “Amended Term Loan Agreement”); and
(ii) Exhibit A to the Existing Term Loan
Agreement is hereby amended and restated in its entirety to read in the form attached as Annex B attached hereto.
(b) Except as set forth in Section 1(a)(ii) above, all schedules and exhibits to the Existing Term Loan Agreement (as amended or otherwise modified in writing prior to the First Amendment Effective Date)
shall not be modified or otherwise affected hereby.
(c) The parties hereto agree that, on
and as of the First Amendment Effective Date, all obligations of the Loan Parties outstanding under the Existing Term Loan Agreement, each Subsidiary Guaranty (if any) and the other Loan Documents (the “Obligations”) on and as of the First Amendment Effective Date shall in all respects be continuing and shall be deemed to be Obligations pursuant to the Amended Term Loan Agreement, such Subsidiary Guaranty or such
other Loan Document, as applicable. The Amended Term Loan Agreement is not a novation of the Existing Term Loan Agreement. This Agreement shall not by implication or otherwise limit, impair, constitute a waiver of, or otherwise affect the rights
and remedies of the Administrative Agent or any Lender under the Existing Term Loan Agreement, each Subsidiary Guaranty (if any) or any other Loan Document, and except as set forth herein, shall not alter, modify, amend, or in
any way affect any of the terms, conditions, obligations, covenants, or agreements contained in the Existing Term Loan Agreement, each Subsidiary
Guaranty (if any) or any other Loan Document.
2. Conditions Precedent. This Agreement shall be effective on the First Amendment Effective Date upon the satisfaction (or, except with respect to Section 2(a)
hereof, waiver) of the following conditions precedent:
(a) Receipt by the Administrative Agent
of counterparts of this Agreement duly executed by the Borrower, each of the Lenders party to the Existing Term Loan Agreement on the First Amendment Effective Date and the Administrative Agent.
(b) The Borrower shall have paid (or
caused to be paid), to the extent invoiced and received by the Borrower at least two Business Days prior to the First Amendment Effective Date (or such later date as the Borrower may reasonably agree), all legal fees and expenses of the
Administrative Agent required to be paid pursuant to the terms of the Amended Term Loan Agreement.
3. Miscellaneous.
(a) The Amended Term Loan Agreement,
each Subsidiary Guaranty (if any) and the other Loan Documents, and the obligations of each Loan Party thereunder, as amended hereby, are hereby ratified and confirmed and shall remain in full force and effect according to their terms. This
Agreement is a Loan Document.
(b) The Borrower hereby represents and
warrants as follows:
(i) The Borrower has all requisite
power and authority to execute, deliver and perform its obligations under this Agreement.
(ii) The execution, delivery and
performance by the Borrower of this Agreement, (x) has been duly authorized by all necessary corporate or other organizational action, and (y) does not and will not (a) contravene the terms of the Borrower’s Organization Documents; (b) conflict with
or result in any breach or contravention of, or the creation of any material Lien under any Contractual Obligation to which the Borrower is a party or affecting the Borrower or the properties of the Borrower or any of its Subsidiaries; or (c) violate
any Law or any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which the Borrower or its property is subject, except, in the cases of clauses (b) and (c) to the extent such conflict, breach, contravention,
creation or violation would not reasonably be expected to have a Material Adverse Effect.
(iii) 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 the execution, delivery or performance by, or enforcement against, the Borrower of this
Agreement other than (i) those such as have been obtained or made and are in full force and effect, (ii) any filings of this Agreement with the SEC required to be made after the date hereof and (iii) such approvals, consents, exemptions,
authorizations, actions or notices the failure of which to obtain or make would not reasonably be expected to have a Material Adverse Effect.
(iv) This Agreement has been duly executed
and delivered by the Borrower. This Agreement constitutes a legal, valid and binding obligation of the Borrower, enforceable against the Borrower in accordance with its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors’ rights or remedies generally and by general principles of equity and an implied covenant of good faith and fair dealing.
(c) Notwithstanding anything in this
Agreement or the Amended Term Loan Agreement, to the contrary, to the extent any Loan bearing interest at the Eurocurrency Rate is outstanding on the First Amendment Effective Date, such Loan shall continue to bear interest at the Eurocurrency Rate
until the end of the current Interest Period applicable to such Loan in accordance with the terms of the Existing Term Loan Agreement; provided that, it is understood and agreed that no outstanding Eurocurrency Rate Loan that remains outstanding
pursuant to this clause (c) shall be permitted to be continued as a Eurocurrency Rate Loan at the end of the Interest Period applicable thereto and shall be converted into
a Base Rate Loan or Term SOFR Loan in accordance with Section 2.02 of the Amended Term Loan Agreement.
(d) The Borrower (i) acknowledges and
consents to all of the terms and conditions of this Agreement, (ii) affirms all of its obligations under the Loan Documents, as amended by this Agreement, and (iii) agrees that this Agreement and all documents executed in connection herewith do not
operate to reduce or discharge its obligations under the Loan Documents.
(e) This Agreement may be executed in
counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page of
this Agreement by telecopy or other electronic imaging means (e.g. “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Agreement.
(f) If any provision of this Agreement
is held to be illegal, invalid or unenforceable, (i) the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected or impaired thereby and (ii) the parties shall endeavor in good faith negotiations to
replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
(g) THIS AGREEMENT AND ANY CLAIMS,
CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT (EXCEPT, AS TO ANY OTHER LOAN DOCUMENT, AS EXPRESSLY SET FORTH THEREIN) AND THE
TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(h) The terms of Sections 10.14 and
10.15 of the Amended Term Loan Agreement with respect to submission to jurisdiction, waiver of venue, consent to service of process and waiver of jury trial are incorporated herein by reference, mutatis mutandis, and the parties hereto agree to such terms.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.
|
BORROWER:
|
HASBRO, INC.
|
|
|
By:
|
/s/ Deborah Thomas
|
|
|
Name:
|
Deborah Thomas
|
|
|
Title:
|
EVP & CFO
|
|
FIRST AMENDMENT TO TERM LOAN AGREEMENT
|
ADMINISTRATIVE
AGENT:
|
BANK OF AMERICA, N.A.,
as Administrative Agent
|
|
|
By:
|
/s/ Mary Lawrence
|
|
|
Name:
|
Mary Lawrence
|
|
|
Title:
|
Vice President
|
|
FIRST AMENDMENT TO TERM LOAN AGREEMENT
|
Bank of America, N.A.
as a Lender
|
||
|
By:
|
/s/ J. Casey Cosgrove
|
|
|
Name:
|
J. Casey Cosgrove
|
|
|
Title:
|
Managing Director
|
|
FIRST AMENDMENT TO TERM LOAN AGREEMENT
|
JPMORGAN CHASE BANK, N.A.,
as a Lender
|
||
|
By:
|
/s/ Peter Christensen
|
|
|
Name:
|
Peter Christensen
|
|
|
Title:
|
Executive Director
|
|
FIRST AMENDMENT TO TERM LOAN AGREEMENT
|
CITIBANK, N.A.,
as a Lender
|
||
|
By:
|
/s/ Anita Philip
|
|
|
Name:
|
Anita Philip
|
|
|
Title:
|
Vice President
|
|
FIRST AMENDMENT TO TERM LOAN AGREEMENT
|
Citizens Bank N.A. as a Lender
|
||
|
By:
|
/s/ Michael Makaitis
|
|
|
Name:
|
Michael Makaitis
|
|
|
Title:
|
Senior Vice President
|
|
FIRST AMENDMENT TO TERM LOAN AGREEMENT
|
The Bank of Nova Scotia,
as a Lender
|
||
|
By:
|
/s/ Catherine Jones
|
|
|
Name:
|
Catherine Jones
|
|
|
Title:
|
Managing Director
|
|
FIRST AMENDMENT TO TERM LOAN AGREEMENT
|
MUFG BANK, LTD., as a Lender
|
||
|
By:
|
/s/ Reema Sharma
|
|
|
Name:
|
Reema Sharma
|
|
|
Title:
|
Authorized Signatory
|
|
FIRST AMENDMENT TO TERM LOAN AGREEMENT
|
TRUIST BANK, (formerly known as Sun Trust Bank),
as a Lender
|
||
|
By:
|
/s/ Steve Curran
|
|
|
Name:
|
Steve Curran
|
|
|
Title:
|
Director
|
|
FIRST AMENDMENT TO TERM LOAN AGREEMENT
|
Australia and New Zealand Banking Group Limited,
as a Lender
|
||
|
By:
|
/s/ Wendy Tso
|
|
|
Name:
|
Wendy Tso
|
|
|
Title:
|
Director
|
|
FIRST AMENDMENT TO TERM LOAN AGREEMENT
|
BANCO BILBAO VIZCAYA ARGENTARIA, S.A. NEW YORK BRANCH,
as a Lender
|
||
|
By:
|
/s/ Brian Crowley
|
|
|
Name:
|
Brian Crowley
|
|
|
Title:
|
Managing Director
|
|
|
By:
|
/s/ Armen Semizian
|
|
|
Name:
|
Armen Semizian
|
|
|
Title:
|
Executive Director
|
FIRST AMENDMENT TO TERM LOAN AGREEMENT
|
The Huntington National Bank,
as a Lender
|
||
|
By:
|
/s/ Michael Kiss
|
|
|
Name:
|
Michael Kiss
|
|
|
Title:
|
Senior Vice President
|
|
FIRST AMENDMENT TO TERM LOAN AGREEMENT
|
Sumitomo Mitsui Banking Corporation
as a Lender
|
||
|
By:
|
/s/ Jun Ashley
|
|
|
Name:
|
Jun Ashley
|
|
|
Title:
|
Director
|
|
FIRST AMENDMENT TO TERM LOAN AGREEMENT
Annex A
Amended Credit Agreement
[see attached]
Published CUSIP Number: 41805XAL2
41805XAM0
41805XAN8
TERM LOAN AGREEMENT
Dated as of September 20, 2019,
among
HASBRO, INC.,
as Borrower,
BANK OF AMERICA, N.A.,
as Administrative Agent,
and
The Lenders Party Hereto
JPMORGAN CHASE BANK, N.A.
CITIBANK, N.A.,
and CITIZENS BANK, N.A.,
as Co-Syndication Agents
and
BOFA SECURITIES, INC.,
JPMORGAN CHASE BANK, N.A.,
CITIBANK, N.A.,
and CITIZENS BANK, N.A.,
as Joint Lead Arrangers and Bookrunners
TABLE OF CONTENTS
|
Page
|
||
|
ARTICLE I.
|
DEFINITIONS AND ACCOUNTING TERMS
|
1
|
|
1.01.
|
Defined Terms
|
1
|
|
1.02.
|
Other Interpretive Provisions
|
24
|
|
1.03.
|
Accounting Terms
|
25
|
|
1.04.
|
Rounding
|
25
|
|
1.05.
|
Times of Day
|
26
|
|
1.06.
|
Interest Rates
|
26
|
|
1.07.
|
Classification of Loans and Borrowings
|
26
|
|
ARTICLE II.
|
THE COMMITMENTS AND LOANS
|
26
|
|
2.01.
|
Loans
|
26
|
|
2.02.
|
Borrowings, Conversions and Continuations of Loans
|
26
|
|
2.03.
|
[Intentionally Omitted]
|
28
|
|
2.04.
|
[Intentionally Omitted]
|
28
|
|
2.05.
|
[Intentionally Omitted]
|
28
|
|
2.06.
|
Optional Prepayments
|
28
|
|
2.07.
|
Termination or Reduction of Commitments
|
28
|
|
2.08.
|
Repayment of Loans
|
29
|
|
2.09.
|
Interest
|
29
|
|
2.10.
|
Fees
|
30
|
|
2.11.
|
Computation of Interest and Fees
|
30
|
|
2.12.
|
Evidence of Debt
|
30
|
|
2.13.
|
Payments Generally; Administrative Agent’s Clawback
|
31
|
|
2.14.
|
Sharing of Payments by Lenders
|
32
|
|
2.15.
|
Defaulting Lenders
|
33
|
|
ARTICLE III.
|
TAXES, YIELD PROTECTION AND ILLEGALITY
|
33
|
|
3.01.
|
Taxes
|
33
|
|
3.02.
|
Illegality
|
38
|
|
3.03.
|
Inability to Determine Rates
|
39
|
|
3.04.
|
Increased Costs
|
41
|
|
3.05.
|
Compensation for Losses
|
43
|
|
3.06.
|
Replacement of Lenders
|
43
|
|
3.07.
|
Matters Applicable to All Requests for Compensation
|
43
|
|
3.08.
|
Survival
|
45
|
|
ARTICLE IV.
|
CONDITIONS PRECEDENT
|
45
|
|
4.01.
|
Conditions Precedent to the Effective Date
|
45
|
|
4.02.
|
Conditions Precedent to the Closing Date
|
46
|
|
ARTICLE V.
|
REPRESENTATIONS AND WARRANTIES
|
48
|
|
5.01.
|
Existence, Qualification and Power
|
48
|
i
TABLE OF CONTENTS
(continued)
|
Page
|
||
|
5.02.
|
Authorization; No Contravention
|
48
|
|
5.03.
|
Governmental Authorization; Other Consents
|
48
|
|
5.04.
|
Binding Effect
|
49
|
|
5.05.
|
Financial Statements; No Material Adverse Effect
|
49
|
|
5.06.
|
Litigation
|
49
|
|
5.07.
|
No Default
|
49
|
|
5.08.
|
Ownership of Property; Liens
|
49
|
|
5.09.
|
Environmental Compliance
|
49
|
|
5.10.
|
Taxes
|
50
|
|
5.11.
|
[Intentionally Omitted]
|
50
|
|
5.12.
|
Subsidiaries
|
50
|
|
5.13.
|
Margin Regulations; Investment Company Act
|
50
|
|
5.14.
|
Disclosure
|
50
|
|
5.15.
|
[Intentionally Omitted]
|
51
|
|
5.16.
|
Foreign Assets Control Regulations, Etc
|
51
|
|
5.17.
|
OFAC
|
51
|
|
5.18.
|
Anti-Corruption Laws
|
51
|
|
5.19.
|
EEA Financial Institution
|
51
|
|
5.20.
|
Solvency
|
51
|
|
ARTICLE VI.
|
AFFIRMATIVE COVENANTS
|
52
|
|
6.01.
|
Financial Statements
|
52
|
|
6.02.
|
Certificates; Other Information
|
52
|
|
6.03.
|
Notices
|
54
|
|
6.04.
|
Payment of Obligations
|
54
|
|
6.05.
|
Preservation of Existence, Etc
|
54
|
|
6.06.
|
Maintenance of Properties
|
55
|
|
6.07.
|
Maintenance of Insurance
|
55
|
|
6.08.
|
Compliance with Laws
|
55
|
|
6.09.
|
Books and Records
|
55
|
|
6.10.
|
Inspection Rights
|
55
|
|
6.11.
|
Use of Proceeds
|
55
|
|
6.12.
|
Addition of Guarantors
|
56
|
|
6.13.
|
Anti-Corruption Laws
|
56
|
|
ARTICLE VII.
|
NEGATIVE COVENANTS
|
56
|
|
7.01.
|
Liens
|
56
|
|
7.02.
|
Indebtedness
|
58
|
|
7.03.
|
Fundamental Changes
|
60
|
|
7.04.
|
[Intentionally Omitted]
|
60
|
|
7.05.
|
Financial Covenants
|
60
|
|
7.06.
|
Sanctions
|
62
|
|
7.07.
|
Anti-Corruption Laws
|
62
|
ii
TABLE OF CONTENTS
(continued)
|
Page
|
||
|
ARTICLE VIII.
|
EVENTS OF DEFAULT AND REMEDIES
|
62
|
|
8.01.
|
Events of Default
|
62
|
|
8.02.
|
Remedies Upon Event of Default
|
64
|
|
8.03.
|
Application of Funds
|
65
|
|
ARTICLE IX.
|
AGENT
|
65
|
|
9.01.
|
Appointment and Authority
|
65
|
|
9.02.
|
Rights as a Lender
|
66
|
|
9.03.
|
Exculpatory Provisions
|
66
|
|
9.04.
|
Reliance by Administrative Agent
|
67
|
|
9.05.
|
Delegation of Duties
|
67
|
|
9.06.
|
Resignation of Administrative Agent
|
67
|
|
9.07.
|
Non-Reliance on Administrative Agent and Other Lenders
|
69
|
|
9.08.
|
No Other Duties, Etc
|
69
|
|
9.09.
|
Administrative Agent May File Proofs of Claim
|
69
|
|
9.10.
|
Guaranty Matters
|
70
|
|
9.11.
|
Certain ERISA Matters
|
70
|
|
9.12.
|
Recovery of Erroneous Payments
|
70
|
|
ARTICLE X.
|
MISCELLANEOUS
|
71
|
|
10.01.
|
Amendments, Etc
|
71
|
|
10.02.
|
Notices; Effectiveness; Electronic Communication
|
73
|
|
10.03.
|
No Waiver; Cumulative Remedies
|
75
|
|
10.04.
|
Expenses; Indemnity; Damage Waiver
|
75
|
|
10.05.
|
Payments Set Aside
|
77
|
|
10.06.
|
Successors and Assigns
|
78
|
|
10.07.
|
Treatment of Certain Information; Confidentiality
|
84
|
|
10.08.
|
Right of Setoff
|
85
|
|
10.09.
|
Interest Rate Limitation
|
85
|
|
10.10.
|
Counterparts; Integration; Effectiveness
|
86
|
|
10.11.
|
Survival of Representations and Warranties
|
86
|
|
10.12.
|
Severability
|
86
|
|
10.13.
|
Replacement of Lenders
|
86
|
|
10.14.
|
Governing Law; Jurisdiction; Etc
|
87
|
|
10.15.
|
Waiver of Jury Trial
|
89
|
|
10.16.
|
No Advisory or Fiduciary Responsibility
|
89
|
|
10.17.
|
Electronic Execution of Assignments and Certain Other Documents
|
90
|
|
10.18.
|
USA PATRIOT Act Notice
|
90
|
|
10.19.
|
Judgment Currency
|
90
|
|
10.20.
|
Acknowledgement and Consent to Bail-In of EEA Financial Institutions
|
91
|
|
10.21.
|
Acknowledgement Regarding Any Supported QFCs
|
91
|
iii
SCHEDULES
|
1.03
|
Indicative Terms of Permitted Receivables Transactions
|
|
|
2.01
|
Commitments and Applicable Percentages
|
|
|
5.06(b)
|
Litigation
|
|
|
5.08
|
Ownership of Property; Liens
|
|
|
5.09
|
Environmental Matters
|
|
|
5.10
|
Taxes
|
|
|
5.12
|
Subsidiaries
|
|
|
6.08
|
Compliance With Laws
|
|
|
7.01(c)
|
Certain Liens
|
|
|
7.02
|
Existing Indebtedness
|
|
|
10.02
|
Administrative Agent’s Office; Certain Addresses for Notices
|
EXHIBITS
|
A
|
Form of Loan Notice
|
|
|
B-1
|
Form of Note (3-Year Tranche)
|
|
|
B-2
|
Form of Note (5-Year Tranche)
|
|
|
C
|
Form of Compliance Certificate
|
|
|
D
|
Form of Assignment and Assumption
|
|
|
E
|
Form of Subsidiary Guaranty
|
|
|
F
|
Form of U.S. Tax Compliance Certificates
|
|
|
G
|
Form of Solvency Certificate
|
i
TERM LOAN AGREEMENT
This TERM LOAN AGREEMENT (“Agreement”) is entered into as of September 20,
2019, among HASBRO, INC., a Rhode Island corporation (the “Borrower”), each lender from time to time party hereto (collectively, the “Lenders” and individually, a “Lender”) and BANK OF AMERICA, N.A., as Administrative Agent.
WHEREAS, the Borrower has requested the Lenders to provide a $1,000,000,000 term loan facility to the Borrower to pay a portion of the cash
consideration for the EOne Acquisition (as defined below), to repay, repurchase or otherwise satisfy and discharge outstanding indebtedness of EOne and its Subsidiaries and to pay fees and expenses incurred in connection with the Transactions; and
WHEREAS, the Lenders are willing to make such term loan facility available to the Borrower on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
1.01. Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below:
“3-Year Tranche Commitment” means, as to each 3-Year Tranche Lender, its
obligation to make 3-Year Tranche Loans to the Borrower pursuant to Section 2.01(a) in an aggregate principal amount at any one time outstanding not to exceed the Dollar
amount set forth under the heading “3-Year Tranche Commitment” opposite such 3-Year Tranche Lender’s name on Schedule 2.01 or in the Assignment and Assumption pursuant to
which such 3-Year Tranche Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.
“3-Year Tranche Lender” means each Lender with a 3-Year Tranche Commitment
or that holds a 3-Year Tranche Loan.
“3-Year Tranche Loan” has the meaning specified in Section 2.01(a).
“3-Year Tranche Maturity Date” means the date that is three years after the
Closing Date; provided, however, that if such date is not a Business Day, the 3-Year Tranche
Maturity Date shall be the immediately preceding Business Day.
“5-Year Tranche Commitment” means, as to each 5-Year Tranche Lender, its
obligation to make 5-Year Tranche Loans to the Borrower pursuant to Section 2.01(b) in an aggregate principal amount at any one time outstanding not to exceed the Dollar
amount set forth under the heading “5-Year Tranche Commitment” opposite such 5-Year Tranche Lender’s name on Schedule 2.01 or in the Assignment and Assumption pursuant to
which such 5-Year Tranche
Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.
“5-Year Tranche Lender” means each Lender with a 5-Year Tranche Commitment
or that holds a 5-Year Tranche Loan.
“5-Year Tranche Loan” has the meaning specified in Section 2.01(b).
“5-Year Tranche Maturity Date” means the date that is five years after the
Closing Date; provided, however, that if such date is not a Business Day, the 5-Year Tranche
Maturity Date shall be the immediately preceding Business Day.
“Adjustment” has the meaning specified in Section 3.03(b).
“Administrative Agent” means Bank of America in its capacity as
administrative agent under any of the Loan Documents, or any successor administrative agent.
“Administrative Agent’s Office” means the Administrative Agent’s address
and, as appropriate, account as set forth on Schedule 10.02 or such other address or account as the Administrative Agent may from time to time notify to the Borrower and the
Lenders.
“Administrative Questionnaire” means an Administrative Questionnaire in a
form supplied by the Administrative Agent.
“Affiliate” means, with respect to any Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.
“Aggregate 3-Year Tranche Commitments” means the 3-Year Tranche Commitments
of all the 3-Year Tranche Lenders (including any Defaulting Lenders). On and as of the Effective Date, the aggregate principal amount of the Aggregate 3-Year Tranche Commitments is $400,000,000.
“Aggregate 5-Year Tranche Commitments” means the 5-Year Tranche Commitments
of all the 5-Year Tranche Lenders (including any Defaulting Lenders). On and as of the Effective Date, the aggregate principal amount of the Aggregate 5-Year Tranche Commitments is $600,000,000.
“Agreement” has the meaning specified in the introductory paragraph hereto.
“AML Legislation” means the USA PATRIOT Act, Title III of Pub. L. 107-56
(signed into law October 26, 2001) and the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada).
“Amortization Percentage” means (x) for each of the first eight Quarterly
Payment Dates, 1.25% and (y) for each subsequent Quarterly Payment Date, 2.50% until the fifth anniversary of the Closing Date.
2
“Anti-Corruption Laws” has the meaning specified in Section 5.18.
“Applicable Percentage” means with respect to any Lender (a) at any time
prior to the Closing Date, the percentage (carried out to the ninth decimal place) of the Aggregate 3-Year Tranche Commitments or Aggregate 5-Year Tranche Commitments, as applicable, represented by such Lender’s 3-Year Tranche Commitment or 5-Year
Tranche Commitments, respectively, at such time, subject to adjustment as provided in Section 2.15 and (b) at any time after the Closing Date, the percentage (carried out to
the ninth decimal place) of the aggregate 3-Year Tranche Loans or 5-Year Tranche Loans, as applicable, represented by such Lender’s 3-Year Tranche Loans or 5-Year Tranche Loans, respectively, at such time, subject to adjustment as provided in Section 2.15. The initial Applicable Percentage of each Lender with respect to each Class on the Effective Date is set forth opposite the name of such Lender on Schedule 2.01.
“Applicable Rate” means, from time to time, with respect to any Loan of any
Class, the following percentages per annum, based upon the Debt Rating of the Borrower as set forth under the caption for such Class below:
|
Pricing
Level
|
Debt Rating (S&P/Moody’s/Fitch)
|
3-Year Tranche
|
5-Year Tranche
|
||
|
Base Rate
|
SOFR
|
Base Rate
|
SOFR
|
||
|
I
|
≥A-/A3/A-
|
0.000%
|
0.875%
|
0.000%
|
1.000%
|
|
II
|
BBB+/Baa1/BBB+
|
0.000%
|
1.000%
|
0.125%
|
1.125%
|
|
III
|
BBB/Baa2/BBB
|
0.125%
|
1.125%
|
0.250%
|
1.250%
|
|
IV
|
BBB-/Baa3/BBB-
|
0.250%
|
1.250%
|
0.375%
|
1.375%
|
|
V
|
BB+/Ba1/BB+
|
0.500%
|
1.500%
|
0.625%
|
1.625%
|
|
VI
|
≤BB/Ba2/BB
|
0.750%
|
1.750%
|
0.875%
|
1.875%
|
As used herein, “Debt Rating” means, as of any date of determination, the rating as determined
by at least two of Fitch, S&P and Moody’s (each, an “Individual Debt Rating”) of the Borrower’s non-credit-enhanced, senior unsecured long-term debt; provided that (a) if two Individual Debt Ratings are obtained and the respective Debt Ratings issued by the foregoing rating agencies differ by one level, then the Pricing Level
of the higher Debt Rating shall apply (with the Debt Rating for Pricing Level I being the highest and the Debt Rating for Pricing Level VI being the lowest) or, if there is a split in the Individual Debt Ratings of more than one level, then the Pricing
Level that is one level higher than the Pricing Level of the lower Individual Debt Rating shall apply; and (b) if three Individual Debt Ratings are obtained and the respective Individual Debt Ratings issued by two of the foregoing rating agencies are
at the same level and the other Individual Debt Rating is higher or lower than these two same ratings, the Pricing Level corresponding to the two same ratings shall apply, or, if each of the three Individual Debt Ratings falls within different levels,
then the Pricing Level that corresponds to the Individual
3
Debt Rating that is in between the highest and lowest of such three Individual Debt Ratings shall apply.
Each change in the Applicable Rate resulting from a change in the Debt Rating shall be effective, in the case of an upgrade, during the period commencing on the earlier of
the date of the public announcement thereof or delivery by the Borrower to the Administrative Agent of notice thereof pursuant to Section 6.03(c) and ending on the date
immediately preceding the effective date of the next such change and, in the case of a downgrade, during the period commencing on the earlier of the date of the public announcement thereof or delivery by the Borrower to the Administrative Agent of
notice thereof and ending on the date immediately preceding the effective date of the next such change.
If the rating system of Moody’s, S&P or Fitch shall change, or if any such rating agency shall cease to be in the business of rating corporate debt obligations, the
Borrower and the Lenders shall negotiate in good faith to amend this definition to reflect such changed rating system or the unavailability of ratings from such rating agency and, pending the effectiveness of any such amendment, the Debt Rating shall
be determined by reference to the rating most recently in effect prior to such change or cessation.
“Approved Fund” means any Fund (i) that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender and (ii) that has a credit rating equal to or higher than that of the related Lender.
“Assignee Group” means two or more Eligible Assignees that are Affiliates
of one another or two or more Approved Funds managed by the same investment advisor.
“Assignment and Assumption” means an assignment and assumption entered into
by a Lender and an assignee (with the consent of any party whose consent is required by Section 10.06(b)), and accepted by the Administrative Agent, in substantially the form
of Exhibit D or any other form (including electronic documentation generated by MarkitClear or other electronic platform) approved by the Administrative Agent and the
Borrower.
“Attributable Indebtedness” means, at any time, the amount of obligations
outstanding at such time under the legal documents entered into as part of a Permitted Receivables Securitization Facility on any date of determination that would be characterized as principal if such Permitted Receivables Securitization Facility were
structured as a secured lending transaction rather than as a purchase.
“Audited Financial Statements” means the audited consolidated balance sheet
of the Borrower and its Subsidiaries for the fiscal year ended December 30, 2018, and the related consolidated statements of operations and cash flows for such fiscal year of the Borrower and its Subsidiaries, including the notes thereto.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers
by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
4
“Bail-In Legislation” means, with respect to any EEA Member Country
implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.
“Bank of America” means Bank of America, N.A. and its successors.
“Base Rate” means for any day a fluctuating rate per annum equal to the
highest of (a) the Federal Funds Rate plus 1/2 of 1%, (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its “prime rate,” and (c) the Eurocurrency Rate for a one month Interest PeriodTerm
SOFR plus 1.00%; and if the Base Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement. The “prime rate” is a rate set by Bank of America based upon various factors including Bank of America’s costs
and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such prime rate announced by Bank of America shall
take effect at the opening of business on the day specified in the public announcement of such change. If the Base Rate is being used as an alternate rate of interest pursuant to Section
3.03 hereof, then the Base Rate shall be the greater of clauses (a) and (b) above
and shall be determined without reference to clause (c) above.
“Base Rate Loan” means a Loan that bears interest based on the Base Rate.
“Beneficial Ownership Certification” means a certification regarding
beneficial ownership required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
“Benefit Plan” means any of (a) an “employee benefit plan” (as defined in
ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of
the Code) the assets of any such “employee benefit plan” or “plan”.
“Borrower” has the meaning specified in the introductory paragraph hereto.
“Borrower Materials” has the meaning specified in Section 6.02.
“Borrowing” means a borrowing consisting of simultaneous Loans of the same
Class and Type and, in the case of Eurocurrency RateTerm SOFR Loans, having the same Interest Period made by each of the Lenders pursuant to Section 2.01.
“Bridge Facility” means the 364-Day Bridge Facility contemplated by that
certain Commitment Letter, dated August 22, 2019, among the Borrower, BofA Securities Inc. and Bank of America, N.A., and any definitive credit documentation evidencing such facility.
“Business Day” means any day other than a Saturday, Sunday or other day on
which commercial banks are authorized to close under the Laws of, or are in fact closed in the state
5
where the Administrative Agent’s Office is located and New York, New York, and if
such day relates to any Eurocurrency Rate Loan, means a London Banking Day.
“Capital Stock” means any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation) and any and all warrants, rights or options to purchase any of the foregoing.
“Capitalized Leases” means leases under which the Borrower or any of its
Subsidiaries is the lessee or obligor, the discounted future rental payment obligations under which leases are required to be capitalized on the balance sheet of the lessee or obligor in accordance with GAAP, or, as applicable, as set forth in Section 1.03(b).
“Change in Law” means, as to any Lender, the occurrence, after the date of
this Agreement (or, if later, the date such Lender becomes a Lender), of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty applicable to such Lender, (b) any change in any law, rule, regulation or treaty
applicable to such Lender or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive applicable to such Lender (whether or not
having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer
Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith or in the implementation thereof and applicable to such Lender, and (y) all requests, rules, guidelines or directives promulgated by the Bank
for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, and applicable to such Lender, shall in each
case be deemed to be a “Change in Law”, regardless of the date enacted, adopted, issued or implemented.
“Change of Control” means an event or series of events by which:
(a) any “person” or “group” (as such terms are used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or
administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, as amended, except that a person or group shall be deemed to have “beneficial ownership” of all securities
that such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time (such right, an “option right”)),
directly or indirectly, of more than 50% or more of the equity securities of the Borrower entitled to vote for members of the board of directors or equivalent governing body of the Borrower on a fully-diluted basis (and taking into account all such
securities that such person or group has the right to acquire pursuant to any option right); or
(b) during any period of 12 consecutive months, a majority
of the members of the board of directors or other equivalent governing body of the Borrower cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or
nomination to that board or equivalent governing body was
6
approved by individuals referred to in clause (i) above constituting at the time of such
election or nomination at least a majority of that board or equivalent governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) (or individuals previously approved under this clause (iii)) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body.
“Class” when used in reference to (a) any Loan or any Borrowing, refers to
whether such Loan or the Loans comprising such Borrowing, are 3-Year Tranche Loans or 5-Year Tranche Loans and (b) any Commitment, refers to whether such Commitment is a 3-Year Tranche Commitment or a 5-Year Tranche Commitment.
“Closing Date” means the first date on which all the conditions precedent
in Section 4.02 are satisfied or waived in accordance with Section 10.01 and the Loans are
funded.
“Code” means the Internal Revenue Code of 1986.
“CME” means CME Group Benchmark Administration Limited.
“Commitment” means each 3-Year Tranche Commitment and each 5-Year Tranche
Commitment, as applicable.
“Commitment Fee” has the meaning specified in Section 2.10(a).
“Commitment Termination Date” means the earliest to occur of (i) the
closing of the EOne Acquisition without borrowing of the Loans, (ii) the date on which the EOne Acquisition Agreement is terminated in accordance with its terms and such termination has either been publicly announced by a party thereto or the
Administrative Agent has received written notice thereof from the Borrower (which notice the Borrower agrees to provide upon such termination) and (iii) December 31, 2019; provided
that, to the extent that the “Outside Date” set forth and defined in the EOne Acquisition Agreement is extended (in accordance with such definition as in effect on August 22, 2019) by a period of not more than 90 days (as may also be extended by no
more than an additional 10 Business Days in respect of the Marketing Period (as defined in the EOne Acquisition Agreement)) in the aggregate, then the date first referred to in this clause
(iii) shall be automatically extended by an equal period; provided, further, that
the Borrower shall notify the Administrative Agent upon any such extension.
“Compliance Certificate” means a certificate substantially in the form of Exhibit C.
“Conforming Changes” means, with respect to the use,
administration of or any conventions associated with SOFR or any proposed Successor Rate or Term SOFR, as applicable, any conforming changes to the definitions of “Base Rate”, “SOFR”, “Term SOFR” and “Interest Period”, timing and frequency of determining rates and making payments of interest and other technical, administrative or operational matters (including, for the avoidance of doubt, the definitions of “Business Day” and “U.S. Government Securities Business Day”, timing of borrowing requests or prepayment, conversion or continuation notices and length of lookback
periods) as may be appropriate, in the discretion of the Administrative Agent, in consultation with the Borrower, to reflect the adoption and implementation of such applicable
7
rate(s) and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent determines that adoption of any
portion of such market practice is not administratively feasible or that no market practice for the administration of such rate exists, in such other manner of administration as the Administrative Agent determines is reasonably necessary in connection with the
administration of this Agreement and any other Loan Document).
“Connection Income Taxes” means Other Connection Taxes that are imposed on
or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
“Consolidated EBITDA” means, with respect to any particular fiscal period,
the amount equal to (a) Consolidated Operating Profit (or Loss) for such period, plus (b) in each case without duplication, and to the extent deducted in
calculating Consolidated Operating Profit (or Loss) for such period, (i) depreciation and amortization of the Borrower and its Subsidiaries, (ii) other non-cash charges of the Borrower and its Subsidiaries, (iii) unusual and non-recurring losses of the
Borrower and its Subsidiaries, (iv) fees and expenses incurred by the Borrower and its Subsidiaries for acquisitions (including the EOne Acquisition), dispositions, investments and debt or equity issuances (whether or not consummated), including the
amount of expenses related to retention awards and (v) unusual, non-recurring or onetime cash expenses, losses and charges (including restructuring, merger and integration charges) of the Borrower and its Subsidiaries; provided that, except for any such amounts incurred in connection with the EOne Acquisition (including in connection with the implementation of cost savings initiatives in connection therewith), amounts
added back under this clause (v) shall not exceed $250 million in any four consecutive fiscal quarter period and $400 million after the Effective Date plus (c) the “run rate” amount of cost savings and synergies that are directly attributable to the EOne Acquisition and actions taken in connection therewith and, as
of the date of calculation with respect to such fiscal period, are anticipated by the Borrower in good faith to be realized within 24 months following the date of calculation, net of the amount of any such cost savings or synergies actually realized
and included in the calculation of Consolidated EBITDA for such period; provided that (A) amounts added back under this clause (c) with respect to any Measurement Period may not exceed 15% of Consolidated EBITDA for such Measurement Period (as calculated without giving effect to this clause (c)) and (B) such cost savings and synergies are factually supportable and have been reasonably detailed by the Borrower in the applicable Compliance Certificate, and minus (d) to the extent included in Consolidated Operating Profit (or Loss) for such period, unusual and non-recurring gains of the Borrower and its Subsidiaries for such period, all determined in accordance
with GAAP.
“Consolidated Interest Coverage Ratio” means, as of any date of
determination, the ratio of (a) Consolidated EBITDA to (b) Consolidated Total Interest Expense, in each case for the most recently completed Measurement Period.
“Consolidated Net Worth” means an amount equal to (a) the total assets of
the Borrower and its Subsidiaries on a consolidated basis minus (b) the total liabilities of the Borrower and its Subsidiaries on a consolidated basis, determined in accordance with GAAP.
8
“Consolidated Operating Profit (or Loss)” means the consolidated operating
profit (or loss) of the Borrower and its Subsidiaries identified as such on the Borrower’s income statement for any period, determined in accordance with GAAP.
“Consolidated Total Funded Debt” means, as of any date of determination,
with respect to the Borrower and its Subsidiaries, the amount equal to, without duplication, (a) the aggregate amount of Indebtedness of the Borrower and its Subsidiaries, on a consolidated basis, relating to (i) the borrowing of money or the obtaining
of credit, (ii) the deferred purchase price of assets (other than trade payables incurred in the ordinary course of business), (iii) in respect of any Synthetic Lease Obligation or any Capitalized Leases, (iv) the face amount of all letters of credit
outstanding and (v) any Recourse Obligations, plus (b) the aggregate amount of Indebtedness of the type referred to in clause (a) of another Person (other than the Borrower or a Subsidiary thereof) guaranteed by the Borrower or any of its Subsidiaries, plus (c) the Attributable Indebtedness; provided that there shall be excluded from Consolidated Total Funded Debt (x) Indebtedness incurred by
the Borrower or its Subsidiaries under any offering of notes to the extent the proceeds thereof are (1) intended to be used to finance one or more acquisitions permitted hereunder and (2) held by the Borrower or any Subsidiary in a segregated account
pending such application (or pending the redemption of such notes in the event any such acquisition is not consummated), until such time as such proceeds are released from such segregated account and (y) indebtedness in respect of media
production-level financings incurred by any Subsidiary of the Borrower, to the extent such financings are non-recourse to the Borrower or any Subsidiary Guarantor. In determining under clause
(a) of this definition the Indebtedness of the Borrower and its Subsidiaries under or in respect of any Permitted Receivables Securitization Facility or under clause (c)
of this definition the Attributable Indebtedness in respect of any Permitted Receivables Securitization Facility, such Indebtedness or amount shall be reduced by any escrowed or pledged cash proceeds which effectively secure such Indebtedness or the
obligations of the Borrower or any such Subsidiary under such Permitted Receivables Securitization Facility.
“Consolidated Total Interest Expense” means, for any period, the aggregate
amount of interest expense of the Borrower and its Subsidiaries determined on a consolidated basis in accordance with GAAP for such period.
“Consolidated Total Leverage Ratio” means, as of the last day of each
fiscal quarter, the ratio of Consolidated Total Funded Debt as of such day to Consolidated EBITDA for the Measurement Period then ended.
“Contractual Obligation” means, as to any Person, any provision of any
security issued by such Person or of any material written agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
“Control” means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.
“Covered Entity” has the meaning specified in Section 10.21.
9
“Daily Simple SOFR” with respect to any applicable
determination date means the SOFR published on such date on the Federal Reserve Bank of New York’s website (or any successor source).
“Debt Rating” has the meaning specified in the definition of “Applicable
Rate.”
“Debtor Relief Laws” means the Bankruptcy Code of the United States, and
all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from
time to time in effect and affecting the rights of creditors generally.
“Default” means any event or condition that constitutes an Event of Default
or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.
“Default Rate” means an interest rate equal to 2.0% plus the rate that
otherwise would be applicable (or if no rate is applicable, the Base Rate plus 2.0% per annum).
“Default Right” has the meaning specified in Section 10.21.
“Defaulting Lender” means any Lender that (a) has failed to (i) fund all or
any portion of its Loans within two Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s
determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent
or any other Lender any other amount required to be paid by it hereunder within two Business Days of the date when due, (b) has notified the Borrower or the Administrative Agent in writing that it does not intend to comply with its funding obligations
hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition
precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after written request by the
Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided
that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), or
(d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of
creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity, or (iii) become the
subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Capital Stock in that Lender or
any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or
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from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm
any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a)
through (d) above, and of the effective date of such status, shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender
as of the date established therefor by the Administrative Agent in a written notice of such determination, which shall be delivered by the Administrative Agent to the Borrower and each other Lender promptly following such determination.
“Designated Jurisdiction” means any country or territory to the extent that
such country or territory itself is the subject of any Sanction.
“Designated Revolving Borrower” means Hasbro SA, so long as it is a
“Designated Borrower” under the Revolving Credit Facility.
“Disposition” or “Dispose” means the sale, transfer, lease or other disposition (including any sale and leaseback transaction) of any property by any Person.
“Disqualified Institutions” means, collectively, those Persons that are (i)
competitors of the Borrower or its Subsidiaries or the EOne Acquired Business, identified in writing by the Borrower to the Administrative Agent from time to time (it being understood that, notwithstanding anything herein to the contrary, in no event
shall a supplement apply retroactively to disqualify any Persons that have previously acquired an assignment or participation interest hereunder that is otherwise permitted, but upon the effectiveness of such designation, any such party may not acquire
any additional commitments, loans or participations), (ii) such other Persons identified in writing by the Borrower to the Administrative Agent prior to August 22, 2019 and (iii) affiliates of the Persons identified pursuant to clauses (i) and (ii) that are either clearly identifiable by name or identified in writing by the Borrower to the
Administrative Agent.
“Dollar” and “$” mean lawful money of the United States.
“Domestic Subsidiary” means any Subsidiary that is organized under the laws
of any political subdivision of the United States.
“EEA Financial Institution” means (a) any credit institution or investment
firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a Subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union,
Iceland, Liechtenstein, and Norway.
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“EEA Resolution Authority” means any public administrative authority or any
Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Effective Date” means the first date on which all the conditions precedent
in Section 4.01 are satisfied or waived in accordance with Section 10.01.
“Eligible Assignee” means any Person that meets the requirements to be an
assignee under Section 10.06(b)(iii) and (v) (subject to such consents, if any, as may be
required under Section 10.06(b)(iii)).
“Environmental Laws” means any and all Federal, state, local, and foreign
statutes, laws, regulations, ordinances, rules, judgments, orders or decrees relating to pollution and the protection of the environment or the release of any Hazardous Materials into the environment, including those related to hazardous substances or
wastes, air emissions and discharges to waste or public systems.
“Environmental Liability” means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Borrower, any other Loan Party or any of their respective Subsidiaries directly or indirectly resulting from or based upon (a) violation
of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement (other than liabilities with respect to insurance premiums) pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“EOCL” means Entertainment One Canada Ltd.
“EOne” means Entertainment One Ltd, a corporation organized under the laws
of Canada.
“EOne Acquired Business” means EOne and its Subsidiaries (including EOCL).
“EOne Acquisition” means the series of transactions that will result in the
acquisition by the Borrower of the EOne Acquired Businesses pursuant to the EOne Acquisition Agreement.
“EOne Acquisition Agreement” means that certain Arrangement Agreement,
dated as of August 22, 2019, among the Borrower, 11573390 Canada Inc. and EOne (together with the schedules thereto), as the same may be amended, supplemented or otherwise modified from time to time in accordance therewith and herewith.
“EOne Acquisition Agreement Representations” means the representations and
warranties made by EOne in the EOne Acquisition Agreement as are material to the interests of the Lenders, but only to the extent that the Borrower has (or a subsidiary of the Borrower has) the right to terminate its obligations under the EOne
Acquisition Agreement as a result of the breach of such representations and warranties in the EOne Acquisition Agreement.
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“Equity Proceeds” has the meaning specified in Section 7.05(b).
“ERISA” means the Employee Retirement Income Security Act of 1974.
“ERISA Affiliate” means any trade or business (whether or not incorporated)
under common control with the Borrower within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).
“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan;
(b) the withdrawal of the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which such entity was a “substantial employer” as defined in Section 4001(a)(2) of ERISA or a cessation of operations
that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing of
a notice of intent to terminate, the treatment of a Pension Plan amendment as a termination under Section 4041 or 4041A of ERISA; (e) the institution by the PBGC of proceedings to terminate a Pension Plan; (f) any event or condition which constitutes
grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (g) the determination that any Pension Plan is considered an at-risk plan or a plan in endangered or critical status within the
meaning of Sections 430, 431 and 432 of the Code or Sections 303, 304 and 305 of ERISA; or (h) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower
or any ERISA Affiliate.
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule
published by the Loan Market Association (or any successor person), as in effect from time to time.
“Eurocurrency Rate Loan” means a Loan that bears
interest at a rate based on the Eurocurrency Rate.
“Event of Default” has the meaning specified in Section 8.01.
“Excluded Taxes” means any of the following Taxes imposed on or with
respect to any Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income, net profit or net worth (however denominated) of such Recipient, franchise or capital Taxes imposed on such
Recipient in lieu of net income taxes, and branch profits Taxes of such Recipient, in each case, (i) imposed as a result of such Recipient (or, in the case of a pass-through entity, any of its beneficial owners) being organized under the
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laws of, or having its principal office or, in the case of any Lender, its Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision
thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. Federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a
law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under Section 10.13)
or (ii) such Lender changes its Lending Office, except in each case to the extent that, pursuant to Section 3.01(a)(ii), (a)(iii) or (c), amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party
hereto or to such Lender immediately before it changed its Lending Office, (c) Taxes attributable to such Recipient’s failure to comply with Section 3.01(e) and (d) any
withholding Taxes imposed pursuant to FATCA. Notwithstanding anything to the contrary contained in this definition, “Excluded Taxes” shall not include any withholding tax imposed at any time on payments made by or on behalf of a Foreign Obligor to any
Lender hereunder or under any other Loan Document, provided that such Lender shall have complied with Section
3.01(e), and provided, further, that, to the extent such Lender acquired its
interest in the relevant Loan pursuant to an assignment or participation, as the case may be, such Lender did so in a manner compliant with Section 10.06(b)(viii).
“FATCA” means Sections 1471 through 1474 of the Code, as of the date of
this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section
1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code.
“Federal Funds Rate” means, for any day, the rate per annum equal to the
weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding
Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on
such day on such transactions as determined by the Administrative Agent.
“Fee Letter” means that certain letter agreement, relating to the term loan
facility hereunder, dated August 22, 2019, among the Borrower, the Administrative Agent and BofA Securities, Inc.
“First Amendment” means that certain First Amendment to Term Loan Agreement among the Borrower, the
Lenders party thereto and the Administrative Agent, dated as of April 12, 2023.
“Fitch” means Fitch Ratings Inc., or its successors.
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“Foreign Lender” means any Lender that is organized under the Laws of a
jurisdiction other than that in which the Borrower is resident for tax purposes. For purposes of this definition, the United States, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.
“Foreign Obligor” means a Loan Party that is a Foreign Subsidiary.
“Foreign Subsidiary” means any Subsidiary that is organized under the laws
of a jurisdiction other than the United States, a State thereof or the District of Columbia.
“FRB” means the Board of Governors of the Federal Reserve System of the
United States.
“Fund” means any Person (other than a natural person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities.
“GAAP” means generally accepted accounting principles in the United States
consistent with the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or such other principles as may
be approved by a significant segment of the accounting profession in the United States, that are applicable to the circumstances as of the date of determination, consistently applied.
“Governmental Authority” means the government of the United States or any
other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).
“Granting Lender” has the meaning specified in Section 10.06(h).
“Hazardous Materials” means all explosive or radioactive substances or
wastes regulated pursuant to any Environmental Law and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas,
infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.
“Indebtedness” as applied to any Person, means, without duplication:
(a) every obligation of such Person to repay money
borrowed,
(b) every obligation of such Person for principal evidenced
by bonds, debentures, notes or other similar instruments, including obligations incurred in connection with the acquisition of property, assets or businesses,
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(c) every reimbursement obligation of such Person with
respect to letters of credit, bankers’ acceptances or similar facilities issued for the account of such Person,
(d) every obligation of such Person issued or assumed as
the deferred purchase price of property or services (including securities repurchase agreements but excluding (i) trade accounts payable or accrued liabilities arising in the ordinary course of business and (ii) earnout obligations in respect of
assets or businesses acquired prior to the Effective Date),
(e) every obligation of such Person under any Capitalized
Lease,
(f) every obligation of such Person under any Synthetic
Lease Obligation,
(g) Indebtedness of any other entity (including any
partnership in which such Person is a general partner) to the extent that such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent that the terms of such
Indebtedness provide that such Person is not liable therefor and such terms are enforceable under applicable law,
(h) every obligation, contingent or otherwise, of such
Person guaranteeing, or having the economic effect of guaranteeing or otherwise acting as surety for, any obligation of a type described in any of clauses (a) through (h) (the “primary obligation”) of another Person (the “primary obligor”), in any manner, whether directly or indirectly, and including, without limitation, any such obligation of such Person (i) to purchase or pay (or advance or supply funds for the purchase of) any
security for the payment of such primary obligation, (ii) to purchase property, securities or services for the purpose of assuring the payment of such primary obligation, or (iii) to maintain working capital, equity capital or other financial
statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such primary obligation.
The “amount” or “principal amount” of any Indebtedness at any time of determination represented by (w) any Indebtedness, issued at a price that is less than the principal amount at maturity thereof, shall be the amount of the liability in
respect thereof determined in accordance with GAAP, (x) any Capitalized Lease shall be the discounted aggregate rental obligations under such Capitalized Lease required to be capitalized on the balance sheet of the lessee in accordance with GAAP and
(y) any Synthetic Lease shall be the stipulated loss value, termination value or other equivalent amount.
“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on
or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in clause (a),
Other Taxes, other than Excluded Taxes.
“Indemnitees” has the meaning specified in Section 10.04(b).
“Individual Debt Rating” has the meaning specified in the definition of
“Applicable Rate.”
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“Information” has the meaning specified in Section 10.07.
“Interest Payment Date” means, (a) as to any Loan other than a Base Rate
Loan, the last day of each Interest Period applicable to such Loan and the Maturity Date applicable to such Loan; provided, however, that if any Interest Period for a Eurocurrency RateTerm SOFR Loan exceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment
Dates; and (b) as to any Base Rate Loan, the last Business Day of each March, June, September and December and the Maturity Date.
“Interest Period” means, as to each Eurocurrency RateTerm SOFR Loan,
the period commencing on the date such Eurocurrency RateTerm SOFR Loan is disbursed or converted to or continued as a Eurocurrency RateTerm SOFR Loan and ending on the date one, two,
three or six months thereafter, as selected by the Borrower in its Loan Notice (in the case of each requested Interest Period, subject to availability); provided that:
(a) any Interest Period that would otherwise end on a day
that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;
(b) any Interest Period that begins on the last Business
Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and
(c) no Interest Period for any Loan shall extend beyond the
Maturity Date applicable to such Loan.
“IRS” means the United States Internal Revenue Service.
“Laws” means, collectively, all applicable international, foreign, Federal,
state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the
enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the
force of law.
“Lead Arrangers” means, collectively, BofA Securities, Inc., JPMorgan Chase
Bank, N.A., Citibank, N.A. and Citizens Bank, N.A., each in its capacity as co-lead arranger and co-book runner.
“Lender” has the meaning specified in the introductory paragraph hereto.
“Lending Office” means, as to any Lender, the office or offices of such
Lender described as such in such Lender’s Administrative Questionnaire as provided to the Borrower, or such other office or offices as a Lender may from time to time notify the Borrower and the Administrative Agent, which office may include any
Affiliate of such Lender or any domestic or
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foreign branch of such Lender or such Affiliate. Unless the context otherwise requires, each reference to a Lender shall include its applicable Lending Office.
“Leverage Notice” has the meaning specified in Section 7.05(b).
“Lien” means any lien, mortgage, pledge, security interest, charge or
encumbrance of any kind (including any conditional sale or other title retention agreement and any agreement to provide a security interest).
“Loan” has the meaning specified in Section 2.01(b).
“Loan Documents” means this Agreement, the First Amendment, each Note, any Subsidiary Guaranty, the Fee Letter and any amendments, modifications or supplements hereto or to any other Loan
Document or waivers hereof or of any other Loan Document.
“Loan Notice” means a notice of (a) a Borrowing, (b) a conversion of Loans
from one Type to the other, or (c) a continuation of Eurocurrency RateTerm SOFR Loans, pursuant to Section 2.02(a), which shall be substantially in the form of Exhibit A or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by
the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower.
“Loan Parties” means, collectively, the Borrower and each Subsidiary
Guarantor (if any).
“Material Adverse Effect” means with respect to any event or occurrence of
whatever nature (including any adverse determination in any litigation, arbitration or governmental investigation or proceeding), (a) a material adverse effect on the business, assets, operations or financial condition of the Borrower and its
Subsidiaries taken as a whole; other than as a result of the imposition of, or increase in, any tariffs or similar government imposed economic costs or controls, that do not have, and could not reasonably be expected to have, a disproportionate adverse
effect on the Borrower and its Subsidiaries taken as a whole, as compared to other similarly situated businesses operating in the same areas of business and geographies as the Borrower and its Subsidiaries; (b) a material adverse effect on the ability
of the Borrower
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individually or the Loan Parties and their Significant Subsidiaries taken as a whole, to perform its or their respective Obligations (as the case may be) under the Loan
Documents; or (c) any material impairment of (i) the validity, binding effect or enforceability of this Agreement or any of the other Loan Documents or (ii) the rights, remedies or benefits available to the Administrative Agent or any Lender under the
Loan Documents.
“Maturity Date” means the 3-Year Tranche Maturity Date or the 5-Year
Tranche Maturity Date, as applicable.
“Measurement Period” means, at any date of determination, the most recently
completed four fiscal quarters of the Borrower for which financial statements have been or are required to be delivered pursuant to Section 6.01(a) or 6.01(b).
“Minimum Principal Amount” means, a principal amount of $5,000,000 or a
whole multiple of $1,000,000 in excess thereof.
“Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.
“Multiemployer Plan” means any employee benefit plan of the type defined in
Section 4001(a)(3) of ERISA, to which the Borrower 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.
“Multiple Employer Plan” means a Plan which has two or more contributing
sponsors (including the Borrower or any ERISA Affiliate) at least two of whom are not under common control, as defined in Section 4064 of ERISA.
“Non-Consenting Lender” means any Lender that does not approve any consent,
waiver or amendment that (i) requires the approval of all Lenders or all affected Lenders in accordance with the terms of Section 10.01 and (ii) has been approved by the
Required Lenders.
“Non-Priority Indebtedness” means Indebtedness which (a) is not senior to
the Obligations, (b) does not have any priority of payment over the Obligations and (c) is not secured by Liens on any of the Borrower’s or any Subsidiary’s assets.
“Note” means a promissory note made by the Borrower in favor of a Lender
evidencing Loans made by such Lender to the Borrower, substantially in the form of (x) Exhibit B-1, in the case of 3-Year Tranche Loans, or (y) Exhibit B-2, in the case of 5-Year Tranche Loans.
“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, 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. Without limiting the
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foregoing, the Obligations include the obligation to pay principal, interest, charges, expenses, fees, indemnities and other amounts payable by any Loan Party under any
Loan Document.
“OFAC” means the Office of Foreign Assets Control of the United States
Department of the Treasury.
“Organization Documents” means, (a) with respect to any corporation, the
charter or 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 agreement; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture 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 document pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“Other Taxes” means all present or future stamp, court or documentary,
recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan
Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 3.06).
“Overnight Rate” means, for any day, with respect to any amount denominated
in Dollars, the greater of (i) the Federal Funds Rate and (ii) an overnight rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily
charged by the Administrative Agent in connection with the foregoing.
“Participant” has the meaning specified in Section 10.06(d).
“Participant Register” has the meaning specified in Section 10.06(d).
“PBGC” means the Pension Benefit Guaranty Corporation.
“Pension Plan” means any employee pension benefit plan (including a
Multiple Employer Plan or a Multiemployer Plan) that is maintained or is contributed to by the Borrower and any ERISA Affiliate and is either covered by Title IV of ERISA or is subject to the minimum funding standards under Section 412 of the Code.
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“Permitted Receivables Securitization Facility” means any transaction or
series of related transactions providing for the financing of any Receivables; provided that any such transaction shall be consummated on terms that include terms
substantially as described on Schedule 1.03 or as the Required Lenders may otherwise consent, such consent not to be unreasonably withheld.
“Person” means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority or other entity.
“Plan” means any employee benefit plan within the meaning of Section 3(3)
of ERISA (including a Pension Plan), maintained for employees of the Borrower or any ERISA Affiliate or any such Plan to which the Borrower or any ERISA Affiliate is required to contribute on behalf of any of its employees and not excluded under
Section 4 of ERISA.
“Platform” has the meaning specified in Section 6.02.
“Pro Forma Basis” means, with respect to compliance with any test or
covenant for any period (including any Measurement Period) hereunder, compliance with such test or covenant after giving effect to any disposition or acquisition, giving effect to increases or (as the case may be) decreases in EBITDA based on the
historical financial results of such disposed or acquired entity and using, for purposes of determining such compliance with respect to the Borrower and its Subsidiaries, the consolidated financial statements of the Borrower and its Subsidiaries as if
such disposition or acquisition had been consummated at the commencement of such period.
“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.
“QFC” has the meaning specified in Section 10.21.
“QFC Credit Support” has the meaning specified in Section 10.21.
“Quarterly Payment Date” has the meaning specified in Section 2.08(b).
“Receivables” means all accounts and accounts receivable of the Borrower or
any of its Subsidiaries, including, without limitation, any accounts and accounts receivable constituting or evidenced by chattel paper, instruments or general intangibles, all unpaid rights of such Person (including rescission, replevin, reclamation
and stopping in transit) relating to the foregoing or arising therefrom, all proceeds thereof and rights (contractual and other) and collateral for such accounts and accounts receivable, and all insurance policies or rights relating to any of the
foregoing. Notwithstanding the foregoing, Receivables shall not include any rights or interests in intellectual property of the Borrower or any of its Subsidiaries.
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“Receivables Subsidiary” means any special purpose, bankruptcy-remote
corporation, limited liability company, trust or other entity established and majority owned by the Borrower or a Subsidiary that purchases, receives contributions of, or receives financing secured by, Receivables generated by the Borrower or any of
its Subsidiaries.
“Recipient” means the Administrative Agent, any Lender or any other
recipient of any payment to be made by or on account of any obligation of any Loan Party hereunder.
“Recourse Obligations” of a Person means all sales with recourse by such
Person of (i) accounts or general intangibles for money due or to become due, (ii) chattel paper, instruments or documents creating or evidencing a right to payment of money or (iii) other receivables (collectively “receivables”), whether pursuant to a purchase facility or otherwise, other than in connection with the disposition of the business operations of such Person relating thereto or a disposition of defaulted
receivables for collection and not as a financing arrangement, and together with any obligation of such Person to pay any discount, interest, fees, indemnities, penalties, recourse, expenses or other amounts in connection therewith. The outstanding
amount of any Recourse Obligation shall be the portion of the principal investment of the purchaser thereof (other than the Borrower or a Subsidiary) as to which recourse to such Person exists, in any event excluding amounts representative of yield and
interest earned on such investment.
“Register” has the meaning specified in Section 10.06(c).
“Regulation S-X” has the meaning specified in Section 4.02(c).
“Related Parties” means, with respect to any Person, such Person’s
Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and of such Person’s Affiliates.
“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.
“Required Lenders” means, at any time, Lenders having Total Credit
Exposures representing more than 50% of the Total Credit Exposures of all Lenders; provided that if the Required Lenders are being determined only with respect to a specific
Class, then the Total Credit Exposure shall be determined with respect to such Class only. The Total Credit Exposure of any Defaulting Lender shall be disregarded in determining Required Lenders at any time.
“Rescindable Amount” has the meaning specified in Section
2.13(b).
“Responsible Officer” means (a) the chief executive officer, chief
operating officer, president, chief financial officer, treasurer, assistant treasurer or controller of a Loan Party, (b) solely for purposes of the delivery of incumbency certificates pursuant to Section 4.01, the secretary or any assistant secretary of a Loan Party, and (c) solely for purposes of notices given pursuant to Article II, any
other officer or employee of the applicable Loan Party so designated by any of the foregoing officers in a notice to the Administrative Agent or any other officer or employee of the applicable Loan Party designated in or pursuant to an agreement
between the
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applicable Loan Party and the Administrative Agent. 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.
“Revolving Credit Facility” means the revolving credit facility under that
certain Second Amended and Restated Revolving Credit Agreement, dated as of the date hereof, by and among the Borrower, the other borrowers party thereto, the lenders party thereto and Bank of America, N.A., as administrative agent, as the same may be
amended, restated, amended and restated, supplemented or otherwise modified.
“S&P” means S&P Global Ratings and any successor thereto.
“Same Day Funds” means immediately available funds.
“Sanctions” means economic or financial sanctions administered or enforced
by the United States Government (including, without limitation, OFAC), the European Union, HerHis Majesty’s Treasury (“HMT”), the Government of Canada, or any other relevant sanctions authority
of a jurisdiction in which the Borrower conducts business, or established pursuant to United Nations Security Council resolution.
“SEC” means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
“Significant Subsidiary” means any Subsidiary of the Borrower (other than
any Receivables Subsidiary), which, either alone or together with the Subsidiaries of such Subsidiary, meets either of the following conditions:
(a) the investments of the Borrower and its Subsidiaries in,
or their proportionate share (based on their equity interests) of the book value of the total assets (after intercompany eliminations) of, the Subsidiary in question exceed 10% of the book value of the total assets of the Borrower and its
Subsidiaries on a consolidated basis, or
(b) the equity of the Borrower and its Subsidiaries in the
revenues of the Subsidiary in question exceeds 10% of the revenues from continuing operations of the Borrower and its Subsidiaries on a consolidated basis for the Borrower’s most recent fiscal year.
“SOFR” has the meaning specified in Section 3.03(bmeans the Secured Overnight Financing Rate as administered by the Federal Reserve Bank of New York (or a successor administrator).
“SOFR Adjustment” means 0.10% per annum.
“SPC” has the meaning specified in Section 10.06(h).
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“Specified Representations” means the representations and warranties (in
each case, solely with respect to the Borrower and each other Loan Party) set forth in Sections 5.01(a) (limited to due organization or formation and valid existence), 5.01(b)(ii), 5.02(i), 5.02(ii)(a),
5.02(ii)(b) (solely with respect to any agreement with respect to Indebtedness of the Borrower or its Subsidiaries in a committed or outstanding principal amount at least
equal to the Threshold Amount and without giving effect to any material adverse effect qualification contained in such representation), 5.04, 5.13, 5.18(b) and 5.20.
“Subsidiary” of a Person means a corporation, partnership, joint venture,
limited liability company or other business entity of which a majority of the shares of Capital Stock having ordinary voting power for the election of directors or other governing body (other than Capital Stock having such power only by reason of the
happening of a contingency) is at the time beneficially owned directly or indirectly through one or more Subsidiaries by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary
or Subsidiaries of the Borrower. For the purposes of this Agreement and the other Loan Documents, from and after the Closing Date, EOCL and its Subsidiaries shall in any event be deemed to be Subsidiaries of the Borrower so long as they are included in
the consolidated financial statements of the Borrower.
“Subsidiary Guarantors” means any Subsidiary Guarantors that may become
party to a Subsidiary Guaranty from time to time pursuant to Section 6.12.
“Subsidiary Guaranty” means a Subsidiary Guaranty made by one or more
Subsidiary Guarantors after the Effective Date in favor of the Administrative Agent and the Lenders, substantially in the form of Exhibit E.
“Supported QFC” has the meaning specified in Section 10.21.
“Swap Contract” means any agreement or arrangement designed to protect at
least one of the parties thereto from the fluctuations of interest rates, exchange rates or forward rates applicable to such party’s assets, liabilities or exchange transactions, including, but not limited to, interest rate exchange agreements, forward
currency exchange agreements, interest rate cap or collar protection agreements, forward rate currency or interest rate options, puts and warrants.
“Synthetic Lease” means (a) a so-called synthetic, off-balance sheet or tax
retention lease, or (b) an agreement for the use or possession of property creating obligations that do not appear on the balance sheet of such Person but which, upon the insolvency or bankruptcy of such Person, would be characterized as the
indebtedness of such Person (without regard to accounting treatment).
“Synthetic Lease Obligation” means the monetary obligation of a Person
under a Synthetic Lease.
“Taxes” means all present or future taxes, levies, imposts, duties,
deductions, withholdings (including backup withholding), assessments, or fees or other charges related thereto imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
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“Term SOFR” means:
(a) for any Interest Period with respect to a Term SOFR Loan, the rate per annum equal to the Term SOFR Screen Rate two U.S. Government
Securities Business Days prior to the commencement of such Interest Period with a term equivalent to such Interest Period; provided that if the rate is not published prior to 11:00 a.m. on such determination date then Term SOFR means the Term SOFR Screen Rate
on the first U.S. Government Securities Business Day immediately prior thereto, in each case,plus the SOFR Adjustment; and
(b) for any interest calculation with respect to a Base Rate Loan on any date, the rate per annum equal to the Term SOFR Screen Rate with a term
of one month commencing that day;
provided that if the Term SOFR determined in accordance with either of the foregoing provisions (a) or (b) of this definition would otherwise be
less than zero, the Term SOFR shall be deemed zero for purposes of this Agreement.
“Term SOFR Loan” means a Loan that bears interest at a rate based on clause (a) of the definition of Term SOFR.
“Term SOFR Scheduled Unavailability
Date” has the meaning specified in Section 3.03(b).
“Term SOFR Screen Rate” means the
forward-looking SOFR terms rate administered by CME (or any other successor administrator satisfactory to the Administrative Agent) and published on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time).
“Term SOFR Successor Rate” has
the meaning specified in Section 3.03(b).
“Threshold Amount” means $125,000,000.
“Total Credit Exposure” means, as to any Lender at any time, either (a)
prior to the Closing Date, the Commitments or (b) on and following the Closing Date, the outstanding Loans, as applicable, of such Lender at such time; provided that if the
Total Credit Exposure shall be determined with respect to one Class only, only the Commitments or Loans, as applicable, of such Class shall be included. The Total Credit Exposure of any Defaulting Lender shall be disregarded in determining Required
Lenders at any time
“Transactions” means the EOne Acquisition, the borrowing of the Loans
hereunder, the issuance by the Borrower of equity securities, equity-linked securities, hybrid debt-equity securities and/or senior unsecured debt securities through a public offering or in a private placement to finance the EOne Acquisition, the entry
into by the Borrower of (and, if applicable, borrowing under) the Bridge Facility and the other transactions contemplated by or related to the foregoing.
“Type” means, with respect to a Loan, its character as a Base Rate Loan or
a Eurocurrency RateTerm SOFR Loan.
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“United States” and “U.S.” mean the United States of America.
“U.S. Government Securities Business
Day” means any Business Day, except any Business Day on which any of the Securities Industry and Financial Markets Association, the New York Stock Exchange or the Federal Reserve Bank of New York is not open for business because such day is a legal holiday under
the federal laws of the United States or the laws of the State of New York, as applicable.
“U.S. Person” means a “United States person” within the meaning of Section
7701(a)(30) of the Code.
“Write-Down and Conversion Powers” means, with respect to any EEA
Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In
Legislation Schedule.
1.02. 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 definitions of terms herein shall apply equally to
the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,”
“includes” and “including” shall be deemed to be followed by the phrase “without limitation.”
The word “will” shall be construed to have the same meaning and effect as the word “shall.”
Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument or other document (including any Organization Document) shall be construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any express restrictions on such amendments, supplements or modifications set forth herein or in any other Loan Document), (ii) any reference herein to any Person shall be construed
to include such Person’s successors and assigns, (iii) the words “hereto,” “herein,” “hereof” and “hereunder,” and words of similar import when used in any Loan Document, shall be
construed to refer to such Loan Document in its entirety and not to any particular provision thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits and Schedules unless otherwise specified shall be construed to refer to
Articles and Sections of, and Exhibits and Schedules to, the Loan Document in which such references appear, (v) any reference to any Law shall include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such law
and any reference to any law, rule or regulation shall, unless otherwise specified, refer to such law, rule or regulation as amended, modified or supplemented from time to time, and (vi) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all applicable tangible and intangible
assets and properties, including cash, securities, accounts and contract rights.
(b) 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.”
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(c) 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.
(d) Any reference herein to a merger, transfer,
consolidation, amalgamation, consolidation, assignment, sale, disposition or transfer, or similar term, shall be deemed to apply to a division of or by a limited liability company, or an allocation of assets to a series of a limited liability company
(or the unwinding of such a division or allocation), as if it were a merger, transfer, consolidation, amalgamation, consolidation, assignment, sale, disposition or transfer, or similar term, as applicable, to, of or with a separate Person. Any
division of a limited liability company shall constitute a separate Person hereunder (and each division of any limited liability company that is a Subsidiary, joint venture or any other like term shall also constitute such a Person or entity).
1.03. Accounting Terms.
(a) Generally. All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be
submitted pursuant to this Agreement shall be prepared in conformity with, GAAP as in effect from time to time, applied on a basis consistent (except for changes concurred in by the Borrower’s independent public accountants) with the most recent
audited consolidated financial statements of the Borrower and its Subsidiaries delivered pursuant to Section 6.01 or, prior to such delivery, the Audited Financial
Statements, except as otherwise specifically prescribed herein.
(b) Changes in GAAP. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either the Borrower or the Required Lenders shall so request, the
Administrative Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders); provided that, until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the Borrower shall
provide to the Administrative Agent a written reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP; provided
further that such reconciliation shall be required to be provided only for the four fiscal quarters following such change. Without limiting the foregoing, including for the purpose of calculating the Consolidated Total Leverage Ratio,
leases shall be classified and accounted for on a basis consistent with that reflected in the Audited Financial Statements (i.e. without giving effect to the adoption of Accounting Standards Update 2016-02, Leases (Topic 842)) for all purposes of
this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above. For the avoidance of doubt, changes in GAAP shall include
both changes adopted after the date hereof and changes adopted prior to the date hereof and first made effective as to the Loan Parties after the date hereof.
1.04. Rounding. Any financial ratios required to be maintained by the Borrower pursuant to this Agreement shall be calculated by dividing the appropriate component by the
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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).
1.05. Times of Day. Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).
1.06. Interest Rates. The Administrative Agent does not warrant, nor accept responsibility, nor shall the Administrative Agent have any liability with respect to the administration, submission
or any other matter related to the rates in the definition of “Eurocurrency Rate”any reference rate referred to herein or with respect to any comparable or successor rate thereto.rate (including, for the avoidance of doubt, the selection of such rate and any related spread or other adjustment) that is an alternative or replacement for or successor to any such rate (including, without
limitation, any Term SOFR Successor Rate) (or any component of any of the foregoing) or the effect of any of the foregoing, or of any Conforming Changes. The Administrative Agent and its affiliates or other related entities may engage in
transactions or other activities that affect any reference rate referred to herein, or any alternative, successor or replacement rate (including, without limitation, any Term SOFR Successor Rate) (or any component of any of the foregoing) or any
related spread or other 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 reference rate referred to herein or
any alternative, successor or replacement rate (including, without limitation, any Term SOFR Successor Rate) (or any component of any of the foregoing), 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 other action or omission related to or affecting the selection, determination, or calculation of any rate (or component thereof) provided by any such information source or service.
1.07. Classification of Loans and Borrowings. For purposes of this Agreement, Loans may be classified and referred to by Class (e.g., a “3-Year Tranche Loan”) and/or by Type (e.g., a “Eurodollar
3-Year Tranche Loan”). Borrowings also may be classified and referred to by Class (e.g., a “3-Year Tranche Borrowing”) or by Type (e.g., a “Eurodollar 3-Year Tranche Borrowing”).
ARTICLE II.
THE COMMITMENTS AND LOANS
2.01. Loans.
(a) Subject to the terms and conditions set forth herein,
each Lender hereby severally agrees to make a term loan (each such loan, a “3-Year Tranche Loan”) to the Borrower in Dollars in a single drawing on the Closing Date in an
aggregate amount to equal such Lender’s 3-Year Tranche Commitment.
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(b) Subject to the terms and conditions set forth herein,
each Lender hereby severally agrees to make a term loan (each such loan, a “5-Year Tranche Loan” and, together with the 3-Year Tranche Loans, each, a “Loan” and, collectively, the “Loans”) to the Borrower in Dollars in a single drawing on the Closing
Date in an aggregate amount to equal such Lender’s 5-Year Tranche Commitment.
(c) Any Loans that are paid or prepaid may not be
reborrowed. Loans may be Base Rate Loans or Eurocurrency RateTerm SOFR Loans, as further provided herein.
2.02. Borrowings, Conversions and Continuations of Loans.
(a) Each Borrowing, each conversion of Loans from one Type
to the other, and each
continuation of Eurocurrency RateTerm SOFR Loans shall be made upon the Borrower’s irrevocable notice to the Administrative Agent, which may be given by (A)
telephone or (B) a Loan Notice; provided that any telephonic notice must be confirmed immediately by delivery to the Administrative Agent of a Loan Notice. Each such Loan
Notice must be received by the Administrative Agent not later than (i) 1:00 p.m. three Business Days prior to the requested date of any Borrowing of, conversion to or continuation of Eurocurrency RateTerm SOFR Loans or of any conversion of Eurocurrency RateTerm SOFR Loans
to Base Rate Loans and (ii) 12:00 noon on the requested date of any Borrowing of Base Rate Loans. Each Borrowing of, conversion to or continuation of Eurocurrency
RateTerm SOFR Loans shall be in an amount not less than the Minimum Principal Amount. Each Borrowing of
or conversion to Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof. Each Loan Notice shall specify (i) whether the Borrower is requesting a Borrowing, a conversion of Loans from one Type to the
other, or a continuation of Eurocurrency RateTerm SOFR Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the Class of the Loans to be borrowed, converted or
continued, (iv) the principal amount of Loans to be borrowed, converted or continued, (v) the Type of Loans to be borrowed or to which existing Loans are to be converted and (vi) if applicable, the duration of the Interest Period with respect thereto.
If the Borrower fails to specify a Type of Loan in a Loan Notice or if the Borrower fails to give a timely notice requesting a conversion or continuation, then the applicable Loans shall be made as, or converted to, Base Rate Loans. Any automatic
conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Eurocurrency RateTerm SOFR Loans. If the Borrower requests a Borrowing of, conversion to, or continuation of Eurocurrency RateTerm SOFR Loans
in any such Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month.
(b) Following receipt of a Loan Notice, the Administrative
Agent shall promptly notify each Lender of the amount of its Applicable Percentage of the applicable Loans, and if no timely notice of a conversion or continuation is provided by the Borrower, the Administrative Agent shall notify each Lender of the
details of any automatic conversion to Base Rate Loans as described in the preceding subsection. In the case of a Borrowing, each Lender shall make the amount of its Loan available to the Administrative Agent in Same Day Funds at the Administrative
Agent’s Office in the case of any Loan that is a Eurocurrency RateTerm SOFR Loan, not later than 11:00 a.m., and in the case of any Loan that is a Base Rate Loan, not later than 2:00 p.m., in each case on the Business Day specified in the applicable Loan
Notice.
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Subject to satisfaction of the applicable conditions set forth in Section 4.01 and 4.02, the Administrative Agent shall make all funds so received available to the Borrower in like funds as received by the Administrative Agent on the Business Day specified in
the applicable Loan Notice either by (i) crediting the account of the Borrower on the books of Bank of America with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to the
Administrative Agent by the Borrower.
(c) Subject to Section 3.05, a Eurocurrency RateTerm SOFR Loan may be continued or converted only on the last day of an Interest Period for such Eurocurrency
RateTerm SOFR Loan. During the existence of an Event of Default, the Administrative Agent or
Required Lenders may require that no Loans may be converted to or continued as Eurocurrency RateTerm SOFR Loans without the consent of the Required Lenders.
(d) The Administrative Agent shall promptly notify the
Borrower and the Lenders of the interest rate applicable to any Interest Period for Eurocurrency RateTerm SOFR Loans upon determination of such interest rate. At any time that Base Rate Loans are outstanding, the Administrative Agent shall notify the Borrower and
the Lenders of any change in Bank of America’s prime rate used in determining the Base Rate promptly following the public announcement of such change.
(e) After giving effect to all Borrowings of all Classes,
all conversions of Loans from one Type to the other, and all continuations of Loans as the same Type, there shall not be more than ten Interest Periods in effect with respect to Loans.
(f) With respect to SOFR or Term SOFR, the Administrative Agent will have the right in consultation with the Borrower to make Conforming Changes from time to time and, notwithstanding anything to the
contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document; provided that, with
respect to any such amendment effected, the Administrative Agent shall post each such amendment implementing such Conforming Changes to the Borrower and the Lenders reasonably promptly after such amendment becomes effective.
2.03. [Intentionally Omitted].
2.04. [Intentionally Omitted].
2.05. [Intentionally Omitted].
2.06. Optional Prepayments. The Borrower may, upon notice to the Administrative Agent, at any time or from time to time voluntarily prepay the Loans of any Class in whole or in part without
premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than (A) 1:00 p.m. three Business Days prior to any date of
prepayment of Eurocurrency RateTerm SOFR Loans and (B) 12:00 noon on the date of prepayment of Base Rate Loans; (ii) any prepayment of Eurocurrency
RateTerm SOFR Loans shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in
excess thereof; and (iii) any prepayment of Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof or, in each case, if less, the entire principal amount
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thereof then outstanding. Each such notice shall specify (a) the date and amount of such prepayment, (b) the Class(es) of Loans to be prepaid, (c) in the case of 5-Year
Tranche Loans, the amortization payments to which such prepayment is to be applied; provided that if the Borrower makes no such specification, any prepayment of 5-Year
Tranche Loans shall reduce subsequent amortization payments in the direct order of maturity, and (d) the Type(s) of Loans to be prepaid and, if Eurocurrency
RateTerm SOFR Loans are to be prepaid, the Interest Period(s) of such Loans. The Administrative Agent
will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s Applicable Percentage of such prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment on the date
specified therein; provided that any such notice may state that it is conditioned upon the incurrence of other indebtedness or the receipt of proceeds from another
transaction, in which case such notice may be revoked by the Borrower (by notice to the Administrative Agent) if such condition is not satisfied. Any prepayment of a Eurocurrency
RateTerm SOFR Loan shall be accompanied by all accrued interest on the amount prepaid, together with any
additional amounts required pursuant to Section 3.05. Each such prepayment shall be applied to the Loans of the Lenders of the applicable Class in accordance with their
respective Applicable Percentages of such Class of Loans.
2.07. Termination or Reduction of Commitments.
(a) Optional. The Borrower may, at any time prior to the Closing Date, upon notice to the Administrative Agent, terminate the Commitments of any Class, or permanently reduce the Commitments of any Class; provided that (i) any such notice shall be received by the Administrative Agent not later than 12:00 noon on the date of termination or reduction and (ii) any such partial reduction shall be in
an aggregate amount of $5,000,000 or any whole multiple of $1,000,000 in excess thereof. The Administrative Agent will promptly notify the applicable Lenders of any such notice of termination or reduction of Commitments. Any reduction of the
Commitments of any Class shall be applied to the Commitment of such Class of each Lender according to its Applicable Percentage of Commitments of such Class. All fees accrued until the effective date of any termination of Commitments of any Class
shall be paid on the effective date of such termination.
(b) Mandatory. Unless previously terminated, the Commitments shall automatically terminate on the Commitment Termination Date (after giving effect to the funding of any Loans on such date). Any termination of the Commitments
pursuant to this Section 2.07(b) shall be permanent. The Borrower shall notify the Administrative Agent upon the termination of the Commitments pursuant to this Section 2.07(b) and the Administrative Agent shall promptly notify each Lender upon receipt of such notice.
2.08. Repayment of Loans.
(a) 3-Year Tranche Loans. The Borrower shall repay to the 3-Year Tranche Lenders on the 3-Year Tranche Maturity Date the aggregate principal amount of 3-Year Tranche Loans outstanding on such date.
(b) 5-Year Tranche Loans. The Borrower shall repay to the 5-Year Tranche Lenders:
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(i) on the last Business Day of each
fiscal quarter of the Borrower, commencing with the first full fiscal quarter of the Borrower following the Closing Date (each, a “Quarterly Payment Date”), an aggregate
principal amount of 5-Year Tranche Loans equal to the Amortization Percentage of the aggregate amount of all 5-Year Tranche Loans made to the Borrower on the Closing Date; and
(ii) on the 5-Year Tranche Maturity
Date, the aggregate principal amount of 5-Year Tranche Loans outstanding on such date.
Any optional prepayment of 5-Year Tranche Loans shall reduce all subsequent scheduled repayments of 5-Year Tranche Loans to be made pursuant to this Section in the order
directed by the Borrower in the related notice of prepayment or, if not specified therein, in the direct order of maturity.
2.09. Interest.
(a) Subject to the provisions of subsection (b) below, (i) each Eurocurrency RateTerm SOFR Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the Eurocurrency RateTerm SOFR for such Interest
Period plus the Applicable Rate for Eurocurrency RateTerm SOFR Loans; and (ii) each Base Rate Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate
plus the Applicable Rate for Base Rate Loans.
(b) (i) If any amount of principal of any Loan is not
paid when due, whether at stated maturity, by acceleration or otherwise, such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.
(ii) If any amount (other than principal
of any Loan) payable by the Borrower under any Loan Document is not paid when due, whether at stated maturity, by acceleration or otherwise, and an Event of Default results from such failure to pay such amount when due, then upon the request of the
Required Lenders, such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.
(iii) Accrued and unpaid interest on
past due amounts (including interest on past due interest) shall be due and payable upon demand.
(c) 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. 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.
2.10. Fees.
(a) Commitment Fee. The Borrower shall pay to the Administrative Agent for the account of each Lender, on the date on which the Commitments of such Lender are terminated
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(including upon the funding of the Loans on the Closing Date), a commitment fee (the “Commitment Fee”)
in Dollars and in Same Day Funds, calculated at a rate per annum equal to 0.15% on the average daily amount of each Class of undrawn Commitments of such Lender, during the period from and including October 21, 2019 to but excluding the date on which
such Commitments terminate.
(b) Other Fees. The Borrower shall pay such fees in the amounts and at the times as specified in the Fee Letter.
2.11. Computation of Interest and Fees. All computations of interest for Base Rate Loans shall be made on the basis of a year of 365 or 366 days, as the case may be, 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 (which results in more fees or interest, as applicable, being paid than if computed on the basis of a 365-day year). 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 2.13(a), bear interest for one day. Each determination by the Administrative
Agent of an interest rate or fee hereunder shall be prima facie evidence for all purposes, absent demonstrable error.
2.12. Evidence of Debt. The Loans 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, by
the Administrative Agent in the ordinary course of business. The accounts or records maintained by the Administrative Agent and each Lender shall be prima facie evidence absent demonstrable error of the amount of the Loans 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 or otherwise affect 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 request of any Lender to the Borrower made through the Administrative Agent, the Borrower shall execute and deliver to such Lender (through the Administrative Agent) a Note, which shall evidence such Lender’s Loans to the
Borrower in addition to such accounts or records. Each Lender may attach schedules to a Note and endorse thereon the date, Type (if applicable), amount, currency and maturity of its Loans and payments with respect thereto.
2.13. Payments Generally; Administrative Agent’s Clawback.
(a) General. All payments to be made by the Borrower shall be made free and clear of and without condition or deduction for any counterclaim, defense, recoupment or setoff (other than with respect to Taxes which shall be governed
solely by Section 3.01). 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 applicable Administrative Agent’s Office in Dollars and in Same Day Funds not later than 2:00 p.m. on the date specified herein. The Administrative Agent will promptly distribute to each
applicable Lender its Applicable Percentage (or other applicable share as provided herein)
33
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 2:00 p.m. shall in each
case 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 the case may be.
(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 Eurocurrency RateTerm SOFR Loans (or, in the case of any
Borrowing of Base Rate Loans, prior to 2:00 p.m. 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 Section 2.02 (or, in the case of a Borrowing of Base Rate Loans, that such Lender has made such share available in
accordance with and at the time required by Section 2.02) and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event,
if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender agrees to pay to the Administrative Agent forthwith on demand such corresponding amount in Same Day Funds with
interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at the Overnight Rate from time to time in effect. If such Lender does not pay
such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the
compensation period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the
Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder. If the Borrower and such Lender shall 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 (excluding such
interest payable by such Lender to the Administrative Agent) 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 such payment 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 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 Lenders the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to
such Lender, in Same Day Funds with interest thereon, for each day from
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and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the Overnight Rate.
With respect to any payment that the Administrative Agent makes for the account of the Lenders
hereunder as to which the Administrative Agent determines (which determination shall be conclusive absent manifest error) that any of the following applies (such payment referred to as the “Rescindable Amount”): (1) the Borrower has not in fact made
such payment; (2) the Administrative Agent has made a payment in excess of the amount so paid by the Borrower (whether or not then owed); or (3) the Administrative Agent has for any reason otherwise erroneously made such payment; then each of the
Lenders severally agrees to repay to the Administrative Agent forthwith on demand the Rescindable Amount so distributed to such Lender in immediately available funds with interest thereon, for each day from and including the date such amount is
distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.
A notice of the Administrative Agent to any Lender or Borrower with respect to any amount owing under this subsection (b) shall be conclusive, absent demonstrable 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 to the Borrower 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 funding of the Loans on the Closing Date set forth in
Section 4.02 are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall promptly return such funds (in like funds as received from such
Lender) to such Lender, without interest.
(d) Obligations of Lenders Several. The obligations of the Lenders hereunder to make Loans and to make payments pursuant to Section 10.04(c) are
several and not joint. The failure of any Lender to make any Loan or to make any payment under Section 10.04(c) 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 make its payment under Section
10.04(c).
(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.
2.14. Sharing of Payments by Lenders. If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of the
Loans of any Class made by it resulting in such Lender’s receiving payment of a proportion of the aggregate amount of such Loans of such Class greater than its pro rata
share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Loans of such Class, or make such other
adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate
35
amount of principal of and accrued interest on their respective Loans of such Class and other amounts owing them, provided that:
(i) if any such participations are
purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and
(ii) the provisions of this Section
shall not be construed to apply to (x) any payment made by or on behalf of the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or
(y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans to any assignee or participant.
Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against such Loan Party rights of setoff and counterclaim with respect to such participation to the extent set forth herein as fully as if such Lender were a direct creditor of such Loan
Party in the amount of such participation.
2.15. Defaulting Lenders. 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:
(a) such Defaulting Lender’s right to approve or disapprove
any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definition of “Required Lenders” and Section 10.01; and
(b) no Defaulting Lender shall be entitled to receive any
Commitment Fee payable under Section 2.10(a) for any period during which that Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such
Commitment Fee that would otherwise have been required to be paid to that Lender).
ARTICLE III.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01. Taxes.
(a) Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes.
(i) Any and all payments by or on
account of any obligation of any Loan Party under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by applicable Laws. If any applicable Laws (as determined in the good faith discretion of the
Administrative Agent or a Loan Party) require the deduction or withholding of any Tax from any such payment by the Administrative Agent or a Loan Party, then the Administrative Agent or such Loan Party shall be entitled to
36
make such deduction or withholding, upon the basis of the information and documentation to be delivered pursuant to subsection (e) below.
(ii) If any Loan Party or the
Administrative Agent shall be required by the Code to withhold or deduct any Taxes, including both United States Federal backup withholding and withholding Taxes, from any payment, then (A) such Loan Party or the Administrative Agent shall withhold
or make such deductions as are determined by the Administrative Agent to be required based upon the information and documentation it has received pursuant to subsection (e)
below, (B) such Loan Party or the Administrative Agent shall timely pay the full amount withheld or deducted to the relevant Governmental Authority in accordance with the Code, and (C) to the extent that the withholding or deduction is made on
account of Indemnified Taxes, the sum payable by the applicable Loan Party shall be increased as necessary so that after any required withholding or the making of all required deductions for Indemnified Taxes (including deductions for Indemnified
Taxes applicable to additional sums payable under this Section 3.01) the applicable Recipient receives an amount equal to the sum it would have received had no such
withholding or deduction been made.
(iii) If any Loan Party or the
Administrative Agent shall be required by any applicable Laws other than the Code to withhold or deduct any Taxes from any payment, then (A) such Loan Party or the Administrative Agent, as required by such Laws, shall withhold or make such deductions
as are determined by it to be required based upon the information and documentation it has received pursuant to subsection (e) below, (B) such Loan Party or the
Administrative Agent, to the extent required by such Laws, shall timely pay the full amount withheld or deducted to the relevant Governmental Authority in accordance with such Laws, and (C) to the extent that the withholding or deduction is made on
account of Indemnified Taxes, the sum payable by the applicable Loan Party shall be increased as necessary so that after any required withholding or the making of all required deductions for Indemnified Taxes (including deductions for Indemnified
Taxes applicable to additional sums payable under this Section 3.01) the applicable Recipient receives an amount equal to the sum it would have received had no such
withholding or deduction been made.
(b) Payment of Other Taxes by the Borrower. Without limiting the provisions of subsection (a) above, the Borrower shall timely pay to the relevant
Governmental Authority in accordance with applicable law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.
(c) Tax Indemnifications.
(i) The Borrower shall, and does hereby,
indemnify each Recipient, and shall make payment in respect thereof within 10 days after written demand setting forth the amount and the reasons in reasonable detail 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 such Recipient, and reasonable expenses arising therefrom or with respect thereto (other than penalties, interest and
37
expenses attributable to gross negligence or willful misconduct of the Recipient), whether or not such Indemnified Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A certificate setting forth the amount of such payment or liability and the reasons therefor in reasonable detail 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.
(ii) Each Lender shall, and does hereby,
severally indemnify, and shall make payment in respect thereof within 10 days after written demand setting forth the amount and the reasons in reasonable detail therefor, (x) the Administrative Agent against any Indemnified Taxes attributable to such Lender (but only to the extent that the Borrower has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the
obligation of the Borrower to do so), (y) the Administrative Agent and the Borrower, as applicable, against any Taxes attributable to such Lender’s failure to
comply with the provisions of Section 10.06(d) relating to the maintenance of a Participant Register and (z) the Administrative Agent and the Borrower, as applicable, against any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent or the Borrower in connection with
any Loan Document, and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate setting
forth the amount of such payment or liability and the reasons therefor in reasonable detail delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set
off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Loan Document against any amount due to the Administrative Agent under this clause
(ii).
(d) Evidence of Payments. Upon request by the Borrower or the Administrative Agent, as the case may be, after any payment of Taxes by the Borrower or by the Administrative Agent to a Governmental Authority as provided in this Section 3.01, the Borrower shall deliver to the Administrative Agent or the Administrative Agent shall deliver to the Borrower, as the case may be, the original or a certified
copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of any return required by Laws to report such payment or other evidence of such payment reasonably satisfactory to the Borrower or the Administrative Agent, as
the case may be.
(e) Status of Lenders; Tax Documentation.
(i) Each Lender that is entitled to an
exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower and the Administrative Agent, at the time or times prescribed by applicable Laws or when reasonably requested by the
Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by applicable Laws or by taxing authorities of any jurisdiction and such other information 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
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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 Section 3.01(e)(ii)(A), (ii)(B)
and (ii)(D) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material
unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of
the foregoing, for so long as the Borrower is a U.S. Person,
(A) any Lender that is a U.S. Person
shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent),
executed originals of IRS Form W-9 certifying that such Lender is exempt from backup withholding Tax;
(B) any Foreign Lender shall, to the
extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement
(and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of the following is applicable:
(1) in the case of a Foreign Lender
claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN-E (or W-8BEN, as applicable) establishing an exemption from,
or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN-E (or W-8BEN, as applicable) establishing an exemption
from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(2) executed originals of IRS Form
W-8ECI;
(3) in the case of a Foreign
Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit F-1 to
the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled
39
foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax
Compliance Certificate”) and (y) executed originals of IRS Form W-8BEN-E (or W-8BEN, as applicable); or
(4) to the extent a Foreign Lender is
not the beneficial owner, executed originals of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN-E (or W-8BEN, as applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit F-2 or Exhibit F-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such
Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit F-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the
extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement
(and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed originals of any other form prescribed by applicable Law as a basis for claiming exemption from or a reduction in U.S. federal
withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable Law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) if a payment made to a Lender under
any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as
applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by Law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by
applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to
comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each Lender agrees that if any form
or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification
or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.
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(f) Treatment of Certain Refunds. Unless required by applicable Laws, at no time shall the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a Lender, or have any obligation to pay to any
Lender, any refund of Taxes withheld or deducted from funds paid for the account of such Lender, as the case may be. If any Recipient determines in its reasonable discretion exercised in good faith that it has received a refund of any Taxes as to
which it has been indemnified by the Borrower or with respect to which the Borrower has paid additional amounts pursuant to this Section 3.01, it shall pay to the Borrower
an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower under this Section 3.01 with respect to the
Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) incurred by such Recipient, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund), provided that the Borrower, upon the request of the Recipient, agrees to repay to the Recipient the amount paid over to the Borrower (plus any penalties, interest or other
charges imposed by the relevant Governmental Authority other than penalties, interest or charges attributable to gross negligence or willful misconduct of the Recipient) in the event the Recipient is required to repay such refund to such Governmental
Authority. Notwithstanding anything to the contrary in this subsection, in no event will the applicable Recipient be required to pay any amount to the Borrower pursuant to this subsection the payment of which would place the Recipient in a less
favorable net after- Tax position than such Recipient would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts
with respect to such Tax had never been paid. This subsection shall not be construed to require any Recipient to make available its tax returns (or any other information relating to its taxes that it deems confidential) to the Borrower or any other
Person.
(g) Survival. Each party’s obligations under this Section 3.01 shall survive the resignation or replacement of the Administrative Agent or any
assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all other Obligations.
3.02. Illegality. If any Lender 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 Eurocurrency RateTerm SOFR Loans, or to determine or charge interest rates based upon the Eurocurrency RateSOFR or 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 Londonapplicable interbank market, then, on notice thereof by such Lender to the Borrower through the Administrative Agent, (i) any obligation of such Lender to make or continue Eurocurrency RateTerm SOFR Loans
or to convert Base Rate Loans to Eurocurrency RateTerm SOFR Loans, shall be suspended and (ii) if such notice asserts the illegality of such Lender making or maintaining Base Rate Loans the interest rate on which is determined by reference to the Eurocurrency RateTerm SOFR component
of the Base Rate, the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Eurocurrency RateTerm SOFR component of the Base Rate,
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 such
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3.03. Inability to Determine Rates.
(a) If the Required Lenders determine that for any reason in connection with any request for a Eurocurrency
RateTerm SOFR Loan or a conversion to or continuation thereof, unless and until a LIBOR of
Base Rate Loans to Term SOFR Loans or a continuation of Term SOFR Loans, as applicable, (i) the Administrative Agent determines (which determination
shall be conclusive absent manifest error) that (A) no Term SOFR Successor Rate is implementedhas been determined in
accordance with Section 3.03(b), that (a) Dollar deposits are
not being offered to banks in the London interbank market for the applicable amount and Interest Period of such Eurocurrency Rate Loan, (b)and the circumstances under Section 3.03(b)(i) or the Term SOFR Scheduled Unavailability Date has occurred, or (B) adequate and reasonable means do not
otherwise exist for determining the
Eurocurrency RateTerm SOFR for any requested Interest Period with respect to a
proposed Eurocurrency RateTerm
SOFR Loan, or (cii)
the Eurocurrency Rate Administrative
Agent or the Required Lenders determine that for any reason that Term SOFR for any requested Interest Period with respect to a proposed Eurocurrency RateTerm SOFR Loan does not adequately and fairly reflect the cost to such Lenders of funding such Eurocurrency RateTerm SOFR Loan, the
Administrative Agent shall forthwith give notice of such determination towill promptly so notify the Borrower and each Lender. Thereafter, (x) the obligation of the Lenders to make or maintain EurocurrencyTerm SOFR Loans, or to convert Base Rate
Loans to Term SOFR Loans, shall be suspended (to the extent of the affected Term SOFR Loans or Interest Periods), and (y) in the event of a
determination described in the preceding sentence with respect to the Eurocurrency RateTerm SOFR component of the Base Rate, the utilization of the Eurocurrency
RateTerm SOFR component in determining the Base Rate shall be suspended, in each case until the
Administrative Agent (upon theor,
in the case of a determination by the Required Lenders described in clause (ii) of this Section 3.03(a), until the Administrative Agent upon instruction of the Required Lenders) revokes such notice (which notice the Administrative Agent and the Required Lenders agree to promptly revoke upon determination that the conditions giving rise
to such notice no longer exist). Upon receipt of such notice, (i) the Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of Eurocurrency Rate
Loans Term SOFR Loans (to the extent of the affected Term SOFR Loans or Interest Periods) or, failing that,
will be deemed to have converted such request into a request for a Borrowing of Base Rate Loans in the amount specified therein and (ii) any outstanding Term SOFR Loans shall
be deemed to have been converted to Base Rate Loans immediately at the end of their respective applicable Interest
Periods.
(b) Replacement of Term SOFR or Term SOFR Successor Rate. Notwithstanding anything to the contrary in this Agreement or any other Loan Documents, if the Administrative
42
Agent determines (which determination shall be conclusive absent manifest error), or the Borrower or Required Lenders notify the Administrative Agent (with, in the case of
the Required Lenders, a copy to the Borrower) that the Borrower or Required Lenders (as applicable) have determined, that:
(i) adequate and reasonable means do not
exist for ascertaining LIBOR for any requestedone month, three month and six month Iinterest Pperiods of Term SOFR, including, without limitation, because the LIBORTerm SOFR Screen Rate is not available or published on a current basis and such circumstances are unlikely to be temporary; or
(ii) theCME or any successor administrator of the LIBORTerm SOFR Screen
Rate or a Governmental Authority having jurisdiction over the Administrative Agent or such administrator with respect to its
publication of the Term SOFR Screen Rate, in each case acting in such capacity, has made a public statement identifying a specific date after which LIBOR
or the LIBORone month, three month and six month interest periods of the Term SOFR Screen
Rate shall or will no longer be made available, or permitted to be used for determining the interest rate of loans;Dollar denominated syndicated loans or shall or will otherwise cease, provided that, at the time of such statement, there is no successor administrator that is satisfactory to the Administrative Agent, that will continue to provide LIBORthe Term SOFR Screen Rate after such specific date (such specific date, the “the latest date on which one month, three month and six month interest periods of the Term SOFR Screen Rate are no longer available
permanently or indefinitely, the “Term SOFR Scheduled Unavailability Date”) ;-or
then, on a date and time determined by the Administrative Agent (any
such date, the “Term SOFR Replacement Date”), which date shall be at the end of an Interest Period or on the relevant interest payment date, as applicable, for interest calculated and, solely with respect to clause (ii) above, no later than the
Term SOFR Scheduled Unavailability Date, Term SOFR will be replaced hereunder and under any Loan Document with Daily Simple SOFR plus the SOFR Adjustment for any payment period for interest calculated that can be determined by the Administrative Agent, in each
case, without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document (the “Term SOFR Successor Rate”).
If the Term SOFR Successor Rate is Daily Simple SOFR plus the SOFR Adjustment, all interest
payments will be payable on a monthly basis.
43
3.03(b)(i) or (ii) have occurred with respect to the
Term SOFR Successor Rate then in effect, then in each case, the Administrative Agent and the Borrower may amend this Agreement to replace LIBOR with
(x) one or more SOFR Based Rates or (y) anothersolely for the purpose of replacing Term SOFR or any then current
Term SOFR Successor Rate in accordance with this Section 3.03 at the end of any Interest Period, relevant interest payment date or payment period for interest calculated, as applicable, with an alternative benchmark rate giving due
consideration to any evolving or then existing convention for similar Dollar denominated syndicated credit facilities syndicated and agented in the United States for such alternative benchmarks, and, in each case, including any mathematical or other adjustments to such benchmark
giving due consideration to any evolving or then existing convention for similar Dollar denominated syndicated credit facilities syndicated and agented in the United States for such benchmarks, which adjustment or method for calculating such adjustment shall be published on an information service as selected by the
Administrative Agent from time to time in its reasonable discretion and may be periodically updated (the “. For the avoidance of doubt, Daily Simple SOFR plus the SOFR Adjustment”;-
and any such other proposed rate, a “LIBOR
and adjustments implemented pursuant to this paragraph, shall constitute a Term SOFR Successor Rate”), and. aAny such amendment shall become effective at 5:00 p.m. on the fifth
Business Day after the Administrative Agent shall have posted such proposed amendment to all Lenders and the Borrower unless, prior to such time, Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that
such Required Lenders (A) in the case of an amendment to replace LIBOR with a rate described in clause (x), object to
the Adjustment; or (B) in the case of an amendment to replace LIBOR with a rate described
in clause (y), object to such amendment; provided that for the avoidance of doubt, in the case of clause (A), the Required Lenders
shall not be entitled to object to any SOFR Based Rate contained in any such amendment.—Such LIBOR.
The Administrative Agent will promptly (in one or more notices) notify the Borrower and each Lender
of the implementation of any Term SOFR Successor Rate.
Any Term SOFR Successor
Rate shall be applied in a manner consistent with market practice; provided that to the extent such market practice is not administratively feasible for the Administrative
Agent, such LIBORTerm SOFR Successor
Rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent.
Notwithstanding anything else herein, if at any definition of LIBORtime any Term SOFR Successor Rate shall provide that in no event shall such LIBOR Successor Rateas so determined
44
would otherwise be less than zero for, the Term SOFR Successor Rate
will be deemed to be zero for the purposes of this Agreement and the other Loan Documents.
In connection with the implementation of a LIBORTerm SOFR Successor Rate, the Administrative Agent will have the right to make LIBOR Successor Rate Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such LIBOR Successor Rate Conforming Changes will become effective without any further action or consent of any other party to this
Agreement. ; provided that, with respect to any such amendment effected, the Administrative Agent shall post each such amendment implementing such Conforming Changes to the Borrower and the Lenders reasonably promptly after
such amendment becomes effective.
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3.04. Increased Costs; Reserves on Eurocurrency Rate Loans.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable
any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any reserve requirement reflected in the Eurocurrency
Rate);.
(ii) subject any Recipient to any Taxes
(other than (A) Indemnified Taxes, (B) Taxes described in the definition of Excluded Taxes or (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other
liabilities or capital attributable thereto; or
(iii) impose on any Lender or the Londonapplicable interbank
market any other condition, cost or expense affecting this Agreement or Eurocurrency RateTerm SOFR Loans made by such Lender;
and the result of any of the foregoing shall be to increase the cost to such Lender of making, converting to, continuing or maintaining any Eurocurrency RateTerm SOFR Loan (or of maintaining
its obligation to make any such Loan) or to reduce the amount of any sum received or receivable by such Lender hereunder (whether of principal, interest or any other amount) then from time to time within 30 days following written 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 3.07), the Borrower will pay
to such Lender such additional amount or amounts as will compensate such Lender for such additional costs incurred or reduction suffered.
(b) Capital Requirements. If any Lender determines that any Change in Law affecting such Lender or any Lending Office of such Lender or such Lender’s holding company, if any, regarding capital or liquidity requirements has had
the effect of reducing the rate of return on such Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by such Lender, to a level below that
which such Lender or such Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s policies and the policies of such Lender’s holding company with respect to capital adequacy), in each case by
an amount deemed by such Lender to be material, then from time to time within 30 days following written 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 3.07), the Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender or
such Lender’s holding company for any such reduction suffered.
(c) Certificates for Reimbursement. A certificate of a Lender setting forth the amount or amounts necessary to compensate such Lender or its holding company, as the case may be, as specified in subsection (a) or (b) of this Section and delivered to the Borrower shall
46
be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within 10 days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any Lender to demand compensation pursuant to the foregoing provisions of this Section 3.04
shall not constitute a waiver of such Lender’s right to demand such compensation, provided that the Borrower shall not be required to compensate a Lender pursuant to the
foregoing provisions of this Section for any increased costs incurred or reductions suffered more than six months prior to the date that such Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of
such Lender’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the six-month period referred to above shall be extended to include the period of
retroactive effect thereof).
3.05. Compensation for Losses. Upon the written demand of any Lender (with a copy to the Administrative Agent) from time to time, the Borrower shall promptly compensate such Lender for and hold
such Lender harmless from any actual loss, cost or expense incurred by it excluding any loss of margin or actual anticipated profits as a result of:
(a) any continuation, conversion, payment or prepayment of
any Loan other than a Base Rate Loan 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) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the date or in the amount notified by the Borrower; or
(c) any assignment of a Eurocurrency RateTerm SOFR Loan
on a day other than the last day of the Interest Period therefor as a result of a request by the Borrower pursuant to Section 10.13;
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.
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3.06. Replacement of Lenders. If any Lender requests compensation under Section 3.04, or if the Borrower is required
to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01 and, in each case,
such Lender has not eliminated such Indemnified Taxes or additional amounts by designating a different lending office in accordance with Section 3.07(e), the Borrower may
replace such Lender in accordance with Section 10.13.
3.07. Matters Applicable to All Requests for Compensation.
(a) If the Administrative Agent or any Lender claims
compensation under this Article III, it shall deliver a certificate to the Borrower contemporaneously with the demand for payment setting forth in reasonable detail a
calculation of the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of demonstrable error. In determining such amount, the Administrative Agent or such Lender may use any reasonable averaging and
attribution methods.
(b) With respect to any Lender’s claim for compensation
under any of Sections 3.02 through 3.05, the Borrower shall not be required to compensate
such Lender for any amount incurred more than 180 days prior to the date that such Lender notifies the Borrower of the event that gives rise to such claim; provided that,
if the circumstance giving rise to such increased cost or reduction is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. If any Lender requests compensation from the
Borrower under Section 3.04, 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
Term SOFR Loans from one Interest Period to another Eurocurrency Rate Loans, or to convert Base Rate Loans into Eurocurrency RateTerm 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(c) shall be applicable); provided that such suspension shall not affect the
right of such Lender to receive the compensation so requested.
(c) If the obligation of any Lender to make or continue Term SOFR Loans from one Interest Period to another any Eurocurrency Rate Loan (or to convert Base Rate Loans into Eurocurrency RateTerm SOFR Loans) shall be suspended pursuant to Section
3.07(b) hereof, such Lender’s Eurocurrency RateTerm SOFR Loans shall be automatically converted into Base Rate Loans on the last day(s) of the then current Interest Period(s) for such Eurocurrency RateTerm SOFR Loans (or, in the case of an
immediate conversion required by Section 3.02, 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 3.01 through 3.04 hereof that gave rise to such conversion
no longer exist: (i) to the extent that such Lender’s Eurocurrency RateTerm SOFR Loans have been so converted, all payments and prepayments of principal that would otherwise be applied to such Lender’s Eurocurrency RateTerm SOFR Loans
shall be applied instead to its
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Base Rate Loans; and (ii) all Loans that would otherwise be made or continued from one Interest Period to another by such Lender as Eurocurrency RateTerm SOFR Loans
shall be made or continued instead as Base Rate Loans, and all Base Rate Loans of such Lender that would otherwise be converted into Eurocurrency
RateTerm SOFR Loans shall remain as Base Rate Loans.
(d) If any Lender gives notice to the Borrower (with a copy
to the Administrative Agent) that the circumstances specified in any of Sections 3.02 through 3.04
that gave rise to the conversion of such Lender’s Eurocurrency RateTerm 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 Eurocurrency RateTerm SOFR Loans made by other Lenders are outstanding, such Lender’s Base Rate Loans shall be automatically converted, on the first day(s) of the next succeeding Interest
Period(s) for such outstanding Eurocurrency RateTerm SOFR Loans, to the extent necessary so that, after giving effect thereto, all Loans held by the Lenders holding Eurocurrency RateTerm SOFR Loans and by such Lender are held pro rata
(as to principal amounts, interest rate basis, and Interest Periods).
(e) Each Lender agrees that if the Borrower is required to
pay an additional amount to the Lender or to any Governmental Authority for the account of the Lender pursuant to Section 3.01, it will, if requested by the Borrower, use
commercially reasonable efforts (subject to such Lender’s internal policies and any legal or regulatory restrictions) to reduce or eliminate such payment, including to designate another Lending Office for any Loan affected and (ii) if any Lender (A)
requests compensation under Section 3.04, or (B) notifies the Borrower that it has determined that it is unlawful for its applicable Lending Office to make, maintain or
fund Eurocurrency RateTerm
SOFR Loans, or to determine or charge interest rates based upon the Eurocurrency RateTerm SOFR, then such Lender will, if requested by the Borrower, use commercially reasonable efforts to designate another Lending Office for any Loan
affected by such event; provided that in each case, such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending
Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided further that nothing in this Section 3.07(e) shall affect or postpone any of the Obligations of the Borrower or the rights of such Lender pursuant to Section 3.01, 3.02 or 3.04.
3.08. Survival. All of the Borrower’s obligations under this Article III shall survive termination of the
Commitments, repayment of all other Obligations hereunder, and resignation of the Administrative Agent.
ARTICLE IV.
CONDITIONS PRECEDENT
4.01. Conditions Precedent to the Effective Date. The effectiveness of the Commitments is subject to the satisfaction (or waiver in accordance with Section 10.01) of the following conditions precedent:
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(a) The Administrative Agent shall have received the
following, each of which shall be originals or e-mailed copies (followed promptly by originals), each dated the Effective Date (or, in the case of certificates of governmental officials, a recent date before the Effective Date):
(i) executed counterparts of this Agreement;
(ii) Notes executed by the Borrower in favor of each Lender
requesting Notes;
(iii) certificates of resolutions or
other equivalent action and incumbency certificates of Responsible Officers of each Loan Party evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this
Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) documents and certifications
evidencing that each Loan Party is validly existing and in good standing and qualified to engage in business in its jurisdiction of organization; and
(v) opinions of (i) Tarrant Sibley,
Esq., Senior Vice President, Chief Legal Officer and Secretary of the Borrower and (ii) Cravath, Swaine & Moore LLP, special New York counsel to the Borrower, in each case in form and substance reasonably satisfactory to the Administrative Agent.
(b) All accrued and invoiced fees and expenses of the Lead
Arrangers, the Administrative Agent and the Lenders (including the fees and expenses of counsel for the Administrative Agent) required to be paid on or before the Effective Date shall have been paid.
(c) (i) Upon the reasonable request of any Lender made at
least 10 Business Days prior to the Effective Date, the Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your
customer” and anti-money-laundering rules and regulations, including, without limitation, the AML Legislation, in each case at least 3 Business Days prior to the Effective Date and (ii) at least 3 Business Days prior to the Effective Date, the
Borrower shall have delivered, to each Lender that so requests at least 10 Business Days prior to the Effective Date, a Beneficial Ownership Certification in relation to the Borrower.
Without limiting the generality of the provisions of Section 9.04, for purposes of
determining compliance with the conditions specified in this Section 4.01(a), 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 notice from such Lender prior to the
proposed Effective Date specifying its objection thereto. The Administrative Agent shall notify the Borrower and the Lenders of the occurrence of the Effective Date, and such notice shall be conclusive and binding.
4.02. Conditions Precedent to the Closing Date. The obligations of the Lenders to make Loans on the Closing Date are subject to the satisfaction (or waiver in
accordance with
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Section 10.01) of the following conditions precedent not later than the Commitment Termination
Date:
(a) The Effective Date shall have occurred.
(b) The EOne Acquisition shall have been (or substantially
concurrently with the funding of the Loans, shall be) consummated in all material respects in accordance with the EOne Acquisition Agreement, and no provision of the EOne Acquisition Agreement (as in effect on August 22, 2019) shall have been amended
or modified by the Borrower, and no condition therein shall have been waived or consent granted or request made by the Borrower, in each case, in any respect that is materially adverse to the Lenders in their capacities as such without the
Administrative Agent’s prior written consent (which consent shall not be unreasonably withheld or delayed); provided, that (i) any increase in the purchase price in the
EOne Acquisition Agreement shall not be deemed to be materially adverse to the interests of the Lenders and shall not require the consent of the Administrative Agent if such purchase price increase does not exceed 10.0% in aggregate (other than
increases in the purchase price in the form of common stock of the Borrower, which shall not be deemed to be materially adverse to the interests of the Lenders and shall not require the consent of the Administrative Agent), (ii) no decrease below the
purchase price in the EOne Acquisition Agreement shall, in and of itself, be deemed to be materially adverse to the interests of the Lenders and shall not require the consent of the Administrative Agent, but, to the extent in cash and after giving
effect to the applicable mandatory prepayment and commitment reduction provisions of the Bridge Facility, shall reduce the dollar equivalent amount (as reasonably determined by the Administrative Agent) of the Commitments, allocated pro rata between each Class and (iii) any such amendment, modification or waiver with respect to (x)
Section 3.1(n)(1) or Section 6.2(b)(i) (insofar as it relates to such Section 3.1(n)(1)) of the EOne Acquisition Agreement or (y) the definition of “Material Adverse Effect” contained in the EOne Acquisition Agreement, in each case, shall be deemed materially
adverse to the Lenders.
(c) Since August 22, 2019, there shall not have been or
occurred any Material Adverse Effect (as defined in the EOne Acquisition Agreement as in effect on August 22, 2019).
(d) To the extent also provided to BofA Securities, Inc.,
in its capacity as the lead arranger of the Bridge Facility, the Administrative Agent shall have received (a) audited consolidated balance sheets and related consolidated statements of operations, comprehensive earnings, cash flows and shareholders’
equity and redeemable noncontrolling interests of the Borrower, and audited consolidated balance sheets and related consolidated statements of comprehensive income, cash flows and changes in equity of EOne, in each case, as of and for each of the
last three full fiscal years ended at least 60 days prior to the Closing Date, and (b) unaudited consolidated balance sheets and related consolidated statements of operations, comprehensive earnings, cash flows, and shareholders’ equity and
redeemable noncontrolling interests of the Borrower as of and for each subsequent fiscal quarter (other than any fourth fiscal quarter) ended at least 40 days prior to the Closing Date (together with the corresponding period(s) of the prior fiscal
year), and the unaudited consolidated balance sheet and related consolidated statements of comprehensive income, cash flows and changes in equity of EOne as of and for the six months ended September 30, 2019 if such date is at least 40 days prior to
the Closing Date (together with the corresponding period(s) of the prior fiscal year). In the case of
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the Borrower, such financial statements shall be prepared in accordance with U.S. GAAP. In the case of EOne, such financial statements shall be prepared in accordance with
International Financial Reporting Standards as issued by the International Accounting Standards Board. In the case of any audited information, such financial statements shall be audited in accordance with U.S. generally accepted auditing standards as
promulgated by the AICPA (US GAAS) for filing with the SEC and, in the case of any unaudited information, shall be reviewed in accordance with Regulation S-X and all other accounting rules and regulations of the SEC promulgated thereunder applicable to
unaudited interim financial statements. With respect to such financial statements of the Borrower, it is understood that this condition shall be deemed satisfied through the public filing of financial statements complying with the foregoing
requirements on Form 10-K or Form 10-Q, as the case may be, by the Borrower with the SEC. To the extent also provided to BofA Securities, Inc., in its capacity as the lead arranger of the Bridge Facility, the Administrative Agent shall also have
received pro forma financial statements of the Borrower giving effect to the Transactions and any other recent, probable or pending acquisitions or dispositions, in each case, solely to the extent required by Article 11 of Regulation S-X (“Regulation S-X”), and only to the extent the Borrower will be required to file such pro forma financial statements with the SEC, regardless of the timing of such filing, which pro
forma financial statements shall be prepared in accordance with Regulation S-X and all other accounting rules and regulations of the SEC promulgated thereunder applicable to pro forma financial statements included in registration statements on Form
S-3.
(e) The Administrative Agent shall have received (i) a
certificate signed by a Responsible Officer of the Borrower certifying there has been no change to the certificates, resolutions or other equivalent documents since the date of their delivery pursuant to Section 4.01(a)(iii) (or attaching thereto any updated certificate, resolutions or other equivalent documents), (ii) documents and certifications evidencing that each Loan Party is validly existing and in good
standing in its jurisdiction of organization, (iii) a certificate of a Responsible Officer of the Borrower certifying that the conditions precedent in Section 4.02(b) and Section 4.02(g) have been satisfied, (iv) a Loan Notice for the Borrowings on the Closing Date, in accordance with Section 2.02 and (v) a solvency certificate from the treasurer or other financial officer of the Borrower substantially in the form of Exhibit G
hereto.
(f) The Lead Arrangers, the Administrative Agent and the
Lenders shall have received all fees and invoiced expenses required to be paid on or prior to the Closing Date pursuant to the Fee Letter and this Agreement (solely with respect to expenses) to the extent invoiced at least two Business Days prior to
the Closing Date.
(g) (x) There shall exist no Event of Default pursuant to Section 8.01(a); Section 8.01(b) (solely with respect to breaches of the negative covenants in Section 7.01 (Liens, but excluding any non-consensual liens arising by operation of law) and Section 7.03
(Fundamental Changes)); Sections 8.01(f) and (g) (in each case, solely with respect to the Borrower); and (y) each of the EOne Acquisition Agreement Representations
shall be true and correct and each of the Specified Representations shall be true and correct in all material respects (or, in the case of any Specified Representations qualified by materiality, in all respects), in each case, on the Closing Date
(except to the extent that any such representations and warranties relate to an
52
earlier date or period, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date or
period).
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent and the Lenders, on the Effective Date (other than Section 5.20) and on the Closing Date, that:
5.01. Existence, Qualification and Power. Each Loan Party and each Significant Subsidiary thereof (a) is duly organized or formed, validly existing and, as applicable, in good standing 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, and (c) is duly qualified and is licensed and, as applicable, in good standing under the Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification or
license; except in each case referred to in clause (a) (other than with respect to the Borrower), (b)(i) or (c), to the extent that failure to do so would not reasonably be
expected to have a Material Adverse Effect.
5.02. Authorization; No Contravention. The execution, delivery and performance by each Loan Party of each Loan Document to which such Person is a party, (i) have been duly authorized by all
necessary corporate or other organizational action, and (ii) do not and will not (a) contravene the terms of such Person’s Organization Documents; (b) conflict with or result in any breach or contravention of, or the creation of any material Lien
under any Contractual Obligation to which such Person is a party or affecting such Person or the properties of such Person or any of its Subsidiaries; or (c) violate any Law or any order, injunction, writ or decree of any Governmental Authority or
any arbitral award to which such Person or its property is subject, except, in the cases of clauses (b) and (c)
to the extent such conflict, breach, contravention, creation or violation would not reasonably be expected to have a Material Adverse Effect.
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 the execution, delivery or performance by, or enforcement against, any Loan Party of this Agreement or any other Loan Document other than (i) those such as have been obtained or made and are in full force
and effect, (ii) any filings of this Agreement and the other Loan Documents with the SEC required to be made after the date hereof and (iii) such approvals, consents, exemptions, authorizations, actions or notices the failure of which to obtain or
make would not reasonably be expected to have a Material Adverse Effect.
5.04. Binding Effect. This Agreement and each other Loan Document have been duly executed and delivered by each Loan Party that is party thereto. This Agreement constitutes, 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 enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium
53
or similar laws affecting creditors’ rights or remedies generally and by general principles of equity and an implied covenant of good faith and fair dealing.
5.05. Financial Statements; No Material Adverse Effect.
(a) The Audited Financial Statements (i) were prepared in
accordance with GAAP and (ii) present fairly in all material respects the financial condition of the Borrower and its Subsidiaries as of the date thereof and for the indicated period.
(b) Other than as publicly disclosed prior to July 31, 2019,
since the date of the Audited Financial Statements, there has been no event or circumstance, either individually or in the aggregate, that had or would reasonably be expected to have a Material Adverse Effect.
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 by or against the Borrower or any of its Subsidiaries or against any of their properties or revenues that (a) provides a reasonable basis for questioning the validity or the enforceability of any Loan Document or (b) except as
disclosed in Schedule 5.06(b), either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect.
5.07. No Default. No Default has occurred and is continuing.
5.08. Ownership of Property; Liens. Except as disclosed in Schedule 5.08, each of the Borrower and each Significant
Subsidiary has good record and marketable title to, or valid leasehold interests in, or easements or other limited property interests in, all real property necessary in the ordinary conduct of its business, except for Liens permitted by Section 7.01 and except where the failure to have such title or interest would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
5.09. Environmental Compliance. Except as disclosed in Schedule 5.09, there are no claims pending or, to the
knowledge of the Borrower, threatened in writing against the Borrower or any of its Significant Subsidiaries alleging liability or responsibility of the Borrower or any of its Significant Subsidiaries for violation of any Environmental Law by their
respective businesses, operations and properties that would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
5.10. Taxes. The Borrower and its Subsidiaries have filed all Federal, state and other material tax returns and reports required to be filed, and have paid all Federal, state and other material
taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except those which are being contested in good faith by appropriate proceedings diligently conducted
and for which adequate reserves have been provided in accordance with GAAP, except (i) as disclosed on Schedule 5.10 or (ii) which, collectively, could not exceed the
Threshold Amount. Except as disclosed on Schedule 5.10, there is no actual or proposed tax assessment against the Borrower or any Subsidiary that would, if made or paid,
have a Material Adverse Effect. Neither any Loan Party nor any Subsidiary thereof is party to any tax sharing agreement.
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5.11. [Intentionally Omitted].
5.12. Subsidiaries. As of the Effective Date, the Borrower has no Significant Subsidiaries other than those specifically disclosed in Schedule 5.12.
5.13. Margin Regulations; Investment Company Act.
(a) No proceeds of any Loans will be used to purchase,
acquire or carry any margin stock (within the meaning of Regulation U issued by the FRB) in violation of the provisions of the regulations of the FRB.
(b) No Loan Party is required to be registered as an
“investment company” under the Investment Company Act of 1940.
5.14. Disclosure.
(a) As of the Effective Date and the Closing Date, the
reports, financial statements, certificates and other written information furnished by or on behalf of any Loan Party to the Administrative Agent or any Lender in connection with the Transactions and the other transactions contemplated hereby and the
negotiation of this Agreement or delivered by or on behalf or any Loan Party hereunder or under any other Loan Document (as modified or supplemented by other information so furnished) (other than the Projections, estimates and information of a
general economic nature) (taken as a whole, the “Information”) as of such date do not, when taken as a whole, contain any misstatement of material fact or omit to state any
material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not materially misleading; provided that, with respect
to projections, estimates, budgets and other forward-looking information (taken as a whole, the “Projections”), the Borrower represents and warrants, as of each of the
Effective Date and the Closing Date, only that such information was prepared in good faith based upon assumptions believed by the Borrower to be reasonable at the time of preparation, it being recognized by the Administrative Agent and the Lenders
that (x) such Projections are not to be viewed as facts and that actual results during the period or periods covered by any such projections may differ significantly from the projected or forecasted results and that such differences may be material
and that such Projections are not a guarantee of financial performance and (y) no representation is made with respect to information of a general economic or general industry nature.
(b) As of the Effective Date, the information included in
each Beneficial Ownership Certification is true and correct in all respects.
5.15. [Intentionally Omitted].
5.16. Foreign Assets Control Regulations, Etc. Neither the Borrower nor any of its Subsidiaries is an entity on the “Specially Designated Nationals and Blocked Persons” list maintained by OFAC.
5.17. OFAC. Neither the Borrower, nor any of its Subsidiaries, nor, to the knowledge of the Borrower and its Subsidiaries, any director, officer, employee, or affiliate under the control of the
Borrower or a subsidiary thereof, is an individual or entity that is, or is more than 50%
55
owned or controlled by one or more individuals or entities that is (i) currently the subject or target of any Sanctions, (ii) included on OFAC’s List of Specially
Designated Nationals and Blocked Persons, HMT’s Consolidated List of Financial Sanctions Targets, the Consolidated Canadian Autonomous Sanctions List or the Consolidated United Nations Security Council Sanctions List, or any similar list enforced by
any other relevant sanctions authority in a jurisdiction in which the Borrower conducts business or (iii) located, organized or resident in a Designated Jurisdiction.
5.18. Anti-Corruption Laws.
(a) Except to the extent that the failure to do so (A)
would not reasonably be expected to have a Material Adverse Effect and (B) would not result in any non-compliance by, or other adverse impact on any of the Lenders the Administrative Agent or the Lead Arrangers with respect to the United States
Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010, and other similar anti-corruption or anti-money laundering legislation in other jurisdictions, the Borrower and its Subsidiaries have conducted their businesses in compliance with the
United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010, and other similar anti-corruption or anti-money laundering legislation in other jurisdictions and have instituted and maintained policies and procedures designed to promote
and achieve compliance with such laws (collectively, “Anti-Corruption Laws”).
(b) No Loan Party has, and will not, directly or, to the
Borrower’s knowledge, indirectly, use the proceeds of the Loans in breach of Sections 7.06 or 7.07
or otherwise in violation of applicable AML Legislation.
5.19. EEA Financial Institution. No Loan Party is an EEA Financial Institution.
5.20. Solvency. On and as of the Closing Date, immediately after giving effect to the Transactions, (a) the fair value of the assets of the Borrower and its Subsidiaries on a consolidated basis,
at a fair valuation on a going concern basis, will exceed the debts and liabilities, direct, subordinated, contingent or otherwise, of the Borrower and its Subsidiaries on a consolidated basis; (b) the present fair saleable value of the property of
the Borrower and its Subsidiaries on a consolidated and going concern basis will be greater than the amount that will be required to pay the probable liability of the Borrower and its Subsidiaries on a consolidated basis on their debts and other
liabilities, direct, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured in the ordinary course of business; (c) the Borrower and its Subsidiaries on a consolidated basis will be able to pay their
debts and liabilities, direct, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured in the ordinary course of business; and (d) the Borrower and its Subsidiaries on a consolidated basis will not have
unreasonably small capital with which to conduct the businesses in which they are engaged as such businesses are now conducted and are proposed to be conducted following the Closing Date.
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ARTICLE VI.
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan shall remain unpaid or unsatisfied or any other Obligation hereunder which is
accrued and payable shall remain unpaid or unsatisfied, 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 Significant Subsidiary to:
6.01. Financial Statements. Deliver to the Administrative Agent for further prompt distribution to the Lenders:
(a) as soon as available, but in any event no later than
100 days after the end of each fiscal year 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 statement of operations and the consolidated statement of
cash flows for such fiscal year, setting forth in each case 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 of KPMG, LLP or other
registered public accounting firm of nationally recognized standing selected by the Borrower, which report shall be prepared in accordance with the standards of the Public Company Accounting Oversight Board (United States) and shall not be subject to
any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit; and
(b) as soon as available, but in any event not later than
60 days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower, a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal quarter, and the related consolidated statements of
operations and cash flows for such fiscal quarter and for the portion of the Borrower’s fiscal year then ended, setting forth in each case 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, certified by the chief executive officer, chief financial officer, treasurer or controller 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.
As to any information contained in materials furnished pursuant to Section 6.02, the Borrower
shall not be separately required to furnish such information under clause (a) or (b) above, but
the foregoing shall not be in derogation of the obligation of the Borrower to furnish the information and materials described in clauses (a) and (b) above at the times specified therein.
6.02. Certificates; Other Information. Deliver to the Administrative Agent for further prompt distribution to the Lenders:
(a) concurrently with the delivery of the financial
statements referred to in Sections 6.01(a) and (b), a duly completed Compliance Certificate
signed by the chief executive officer, chief financial officer, treasurer or controller of the Borrower;
(b) promptly after the same are available, copies of each
report or financial statement sent to the stockholders of the Borrower generally, and copies of all regular and periodic reports
57
which the Borrower may file with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the
Administrative Agent pursuant hereto;
(c) 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” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT
Act and the Beneficial Ownership Regulation.
(d) promptly, such additional information regarding the
business, financial or corporate affairs of the Borrower or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender through the Administrative Agent may from time to time reasonably request.
Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(b) (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 (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the website
address listed on Schedule 10.02; or (ii) on which such documents are posted on the Borrower’s behalf on an 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); provided that the Borrower shall deliver paper
copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender. In every instance
the Borrower shall be required to provide, whether electronically or otherwise, executed copies of the Compliance Certificates required by Section 6.02(a) to the
Administrative Agent. Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor
compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.
The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Lead Arrangers will make available to the Lenders materials and/or
information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, Syndtrak, ClearPar, or a
substantially similar electronic transmission system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrower, its Affiliates or their respective securities) (each, a “Public Lender”). The Administrative Agent hereby agrees that when it posts such Borrower Materials on the Platform, it will post such Borrower Materials in the form the Borrower provided to the
Administrative Agent. The Borrower hereby agrees that (w) all Borrower Materials that are to be made available to Public Lenders must be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear
prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Lead Arrangers and the Lenders to treat such Borrower
58
Materials as not containing any material non-public information with respect to the Borrower, its Affiliates or their respective securities for purposes of United States
Federal and state securities laws (provided, however, that to the extent such Borrower Materials
constitute Information, they shall be treated as set forth in Section 10.07); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion
of the Platform designated “Public Investor;” and (z) the Administrative Agent and the Lead Arrangers shall treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public
Investor.” Notwithstanding the foregoing or anything to the contrary herein or in any other Loan Document, no Loan Party is under any obligation to mark any Borrower Materials as “PUBLIC.”
6.03. Notices. Promptly upon any Responsible Officer obtaining knowledge thereof, notify the Administrative Agent:
(a) of the occurrence of any Default;
(b) of any litigation or proceedings pending or threatened
in writing affecting the Borrower or any of its Subsidiaries involving an uninsured claim against the Borrower or any of its Subsidiaries that would reasonably be expected to have a Material Adverse Effect; and
(c) of any announcement by Fitch, Moody’s or S&P of any
change in a Debt Rating.
Each notice pursuant to this Section 6.03 (other than Section 6.03(c)) 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. The Administrative Agent will promptly notify the Lenders of any notices it receives pursuant to this Section 6.03.
6.04. Payment of Obligations. Pay and discharge or otherwise satisfy prior to the time when any penalty or fine shall be incurred with respect thereto (a) all tax liabilities, assessments and
governmental charges or levies upon it or its properties or assets and (b) all other lawful claims which, if unpaid, would by law become a Lien upon its property (other than any Lien permitted under Section 7.01), except, in the case of clauses (a) and (b) to the
extent failure to pay or discharge the same would not reasonably be expected to have a Material Adverse Effect or unless the same are being contested in good faith by appropriate proceedings diligently conducted and adequate reserves, if any,
required by GAAP are being maintained by the Borrower or such Significant Subsidiary.
6.05. Preservation of Existence, Etc. Preserve, renew and maintain in full force and effect its legal existence and good standing under the Laws of the jurisdiction of its organization except in
a transaction permitted by Section 7.03; provided that the legal existence or good standing of
any Significant Subsidiary may be terminated or permitted to lapse if the Borrower determines in good faith that such termination or lapse is in the best interests of the Borrower and is not materially disadvantageous to the Lenders.
6.06. Maintenance of Properties. Except where the failure to do so would not reasonably be expected to have a Material Adverse Effect, (a) maintain, preserve and protect all of its material
properties and equipment necessary in the operation of its business in good
59
working order and condition, ordinary wear and tear excepted and (b) make all necessary repairs thereto and renewals and replacements thereof in accordance with sound
industry practice.
6.07. Maintenance of Insurance. Maintain with financially sound and reputable insurance companies, insurance with respect to its properties and business against loss or damage of the kinds
customarily insured against by similarly situated Persons engaged in the same or similar business, of such types and in such amounts (after giving effect to any self-insurance) as are customarily carried under similar circumstances by such other
Persons; provided that the Borrower and any of its Significant Subsidiaries may maintain a program of self insurance in accordance with sound business practices.
6.08. Compliance with Laws. Comply in all material respects with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its business or property,
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, (b) except as disclosed on Schedule 6.08, or (c) the failure to comply therewith would not reasonably be expected to have a Material Adverse Effect.
6.09. Books and Records. Maintain proper books of record and account, in which full, true and correct entries in conformity with GAAP and, in the case of a Foreign Subsidiary, applicable
statutory reporting requirements, consistently applied shall be made of all financial transactions and matters involving the assets and business of the Borrower or such Significant Subsidiary, as the case may be, as and to the extent required
thereby.
6.10. Inspection Rights. Permit representatives and independent contractors of the Administrative Agent and each Lender at the expense of that Lender to visit and inspect any of its properties,
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, officers, and independent public accountants, all at such reasonable
times during normal business hours, upon reasonable advance notice to the Borrower; provided, however,
that unless an Event of Default exists the Administrative Agent or any Lender (or any of their respective representatives or independent contractors) may only exercise its inspection rights hereunder twice per fiscal year; provided, further, that representatives of the Borrower may be present during such inspections and discussions at all
times prior to the occurrence of a Default or Event of Default.
6.11. Use of Proceeds. Use the proceeds of the Loans (i)
to pay a portion of the cash consideration for the EOne Acquisition, (ii) to repay, repurchase or otherwise satisfy and discharge outstanding indebtedness of EOne and its Subsidiaries and (iii) to pay fees and expenses incurred in connection with the
Transactions.
6.12. Addition of Guarantors. From time to time, the Borrower may, but shall not be required to, cause one or more of its Subsidiaries to become a Subsidiary Guarantor by causing such Subsidiary
to (i) execute and deliver to the Administrative Agent a Subsidiary Guaranty or such other document as shall be reasonably satisfactory to the Administrative Agent for such purpose, and (ii) deliver to the Administrative Agent documents of the types
referred to in
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clauses (iii) and (iv)
of Section 4.01(a), all in form, content and scope reasonably satisfactory to the Administrative Agent.
6.13. Anti-Corruption Laws. Except to the extent that the failure to do so (i) would not reasonably be expected to have a Material Adverse Effect and (ii) would not result in any non-compliance
by, or other adverse impact on any of the Lenders, the Administrative Agent or the Lead Arrangers with respect to the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010, and other similar anti-corruption or anti-money
laundering legislation in other jurisdictions, conduct its businesses in compliance with the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010, and other similar anti-corruption or anti-money laundering legislation in other
jurisdictions and maintain policies and procedures designed to promote and achieve compliance with such laws.
ARTICLE VII.
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan shall remain unpaid or unsatisfied or any other Obligation hereunder which is
accrued and payable shall remain unpaid or unsatisfied:
7.01. Liens. The Borrower shall not, nor shall it permit any Subsidiary (other than any Foreign Subsidiary) to, create, incur, assume or suffer to exist any Lien upon any of its property, assets
or revenues, whether now owned or hereafter acquired, other than the following:
(a) Liens pursuant to any Loan Document;
(b) Liens existing on the date hereof and any extension,
renewal or replacement (or successive extensions, renewals or replacements), in whole or in part, thereof; provided, however, that (i) such extension, renewal or replacement shall be limited to all or part of the property which secured the Lien so extended, renewed or replaced (plus improvements on such property), (ii) the amount secured or
benefited thereby is not increased except to the extent the increased amount of Indebtedness would be permitted under Section 7.02, (iii) the direct or indirect obligor
with respect thereto is not changed, and (iv) any renewal or extension of the obligations secured or benefited thereby is permitted by Section 7.02(d);
(c) Liens for taxes, assessments or governmental charges
not overdue for a period of more than 60 days or, if more than 60 days overdue, (i) which are being contested in good faith by appropriate proceedings (provided that
adequate reserves with respect thereto are maintained on the books of the Borrower or its Subsidiaries, as the case may be, in conformity with GAAP), (ii) which secure payments disclosed on Schedule 7.01(c), or (iii) with respect to which failure to make payment would not reasonably be expected to have a Material Adverse Effect;
(d) carriers’, warehousemen’s, mechanics’, materialmen’s,
repairmen’s, supplier’s or other like Liens arising in the ordinary course of business securing amounts which are not overdue for a period of more than 60 days or, if more than 60 days overdue (i) such Lien is being contested in good faith and by
appropriate proceedings diligently conducted, if adequate reserves
61
with respect thereto are maintained on the books of the applicable Person or (ii) the failure to pay such amounts would not reasonably be expected to have a Material
Adverse Effect;
(e) (i) Liens incurred in connection with workers’
compensation, unemployment insurance and other social security legislation, (ii) Liens incurred in the ordinary course of business securing insurance premiums or reimbursement obligations under insurance policies or (iii) obligations in respect of
letters of credit or bank guarantees that have been posted to support the payment of the items set forth in clauses (i) and (ii) of this Section 7.01(e);
(f) deposits or pledges to secure the performance of bids,
tenders, trade contracts and leases (other than for borrowed money), statutory obligations, surety and appeal bonds, indemnity bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(g) easements, rights-of-way, zoning restrictions,
restrictions on the use of real property and defects and irregularities in the title thereto, landlord’s or lessor’s liens under leases to which the Borrower or a Subsidiary of the Borrower is a party, and other similar encumbrances and minor liens,
none of which in the opinion of the Borrower interferes materially with the use of the property affected in the ordinary conduct of the business of the Borrower and its Subsidiaries and which defects do not individually or in the aggregate have a
Material Adverse Effect;
(h) Liens securing judgments for the payment of money not
constituting an Event of Default under Section 8.01(h);
(i) Liens on assets acquired, constructed or improved by
the Borrower or any of its Subsidiaries, provided, however, that (i) such Liens secure
Indebtedness permitted by Section 7.02(g), and (ii) such Liens shall not apply to any other property or assets of the Borrower or any of its Subsidiaries; and
(j) Liens on the property or assets of a Person which is
merged into or becomes a Subsidiary of the Borrower after the date hereof securing Indebtedness permitted under Section 7.02(h); provided that (i) such Liens existed at the time of such merger or at the time such Person became such a Subsidiary and were not created in anticipation thereof, (ii) any such Lien does not extend to cover any
other property or assets of the Borrower or any Subsidiary and (iii) in the case of property or assets of any Person merged into a Loan Party, such Liens do not secure obligations exceeding $75,000,000 in aggregate amount at any time outstanding;
(k) Liens existing on assets or properties at the time of
the acquisition thereof by the Borrower or any Subsidiary of the Borrower which were not created in anticipation of the acquisition thereof by the Borrower or such Subsidiary, and which (i) do not extend to or cover any assets or property of the
Borrower or such Subsidiary other than the assets or property being acquired or (ii) do not secure any Indebtedness not permitted under Section 7.02;
(l) any extension, renewal or replacement (or successive
extensions, renewals or replacements), in whole or in part, of any Lien referred to in the foregoing clauses (i), (j) and (k); provided, however, that such extension, renewal or replacement shall be limited to all or part of
62
the property which secured the Lien so extended, renewed or replaced (plus improvements on such property);
(m) rights of setoff and similar arrangements in favor of
depository and securities intermediaries to secure customary fees and similar amounts related to bank accounts or securities accounts;
(n) any encumbrance or restriction (including, without
limitation, put and call agreements and transfer restrictions, but not pledges) with respect to the Capital Stock of any joint venture or similar arrangement created pursuant to the joint venture or similar agreements with respect to such joint
venture or similar arrangement;
(o) [Intentionally Omitted];
(p) [Intentionally Omitted];
(q) Liens on assets of any Foreign Subsidiary securing
Indebtedness of any Foreign Subsidiary permitted by Section 7.02(j);
(r) Liens created pursuant to and in accordance with any
Permitted Receivables Securitization Facility and Liens created in connection with Recourse Obligations for credit enhancement or liquidity purposes, pursuant to any agreement pursuant to which the Borrower and certain of its Subsidiaries agree to
sell, assign, pledge and transfer to a credit insurance provider or other similar entities certain Recourse Obligations;
(s) Liens on assets of any Subsidiary securing any
Indebtedness of such Subsidiary permitted by Section 7.02(k); provided that such Liens shall
apply only to the assets being financed by such Indebtedness and assets related thereto (including the Capital Stock of any special purpose entity created or formed to hold or develop such assets); and
(t) other Liens on assets which secure obligations in an
aggregate amount not exceeding the excess of 15% of Consolidated Net Worth over the aggregate outstanding amount of Indebtedness then incurred in accordance with Section 7.02(l)
at any time outstanding.
7.02. Indebtedness. The Borrower shall not, nor shall the Borrower permit any Subsidiary to, create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under (i) the Loan Documents or (ii) in
the case of the Designated Revolving Borrower, the Revolving Credit Facility;
(b) Non-Priority Indebtedness of the Borrower;
(c) Non-Priority Indebtedness of Subsidiaries of the
Borrower that are Subsidiary Guarantors;
(d) Indebtedness outstanding on the date hereof and listed on
Schedule 7.02 and any refinancings, refundings, renewals or extensions thereof; provided that
the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension
63
except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an
amount equal to any existing commitments unutilized thereunder; provided further that the direct or contingent obligor with respect to such Indebtedness is not changed.
(e) Indebtedness of the Borrower or any Subsidiary to the
Borrower or any Subsidiary;
(f) guarantees by the Borrower or any Subsidiary in respect
of Indebtedness otherwise permitted hereunder of any Subsidiary, other than guarantees by a Domestic Subsidiary in respect of Indebtedness of a Foreign Subsidiary;
(g) Indebtedness incurred to finance the acquisition,
construction or improvement of any fixed or capital assets, including under Capitalized Leases and Synthetic Leases, and any Indebtedness assumed in connection with the acquisition of any assets or secured by a Lien on such assets prior to the
acquisition thereof, and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof, provided that the
aggregate outstanding principal amount of Indebtedness permitted by this clause (g) shall not at any one time exceed $50,000,000 (but, if recourse to such Person is limited
to such property, then the amount of such Indebtedness of such Person shall be deemed to be limited to the lesser of (i) the outstanding amount of such secured Indebtedness, and (ii) the fair market value of the property subject to such Lien);
(h) Indebtedness of any Person that becomes a Subsidiary or
that is merged with or into the Borrower or a Subsidiary after the date hereof or related to assets or properties described in Section 7.01(k); provided that such Indebtedness exists (i) at the time such Person becomes a Subsidiary and is not created in contemplation of or in connection with such Person becoming a Subsidiary, or (ii) at
the time the property or asset is acquired, as applicable, and is not created in contemplation of or in connection with such acquisition;
(i) Indebtedness in connection with any Permitted
Receivables Securitization Facility and Indebtedness created in connection with Recourse Obligations for credit enhancement or liquidity purposes, pursuant to any agreement pursuant to which the Borrower and certain of its Subsidiaries agree to sell,
assign, pledge and transfer to a credit insurance provider or other similar entities certain Recourse Obligations; and
(j) Indebtedness (other than guarantees of Indebtedness of
the Borrower) of Foreign Subsidiaries other than the Designated Revolving Borrower;
(k) Indebtedness of any Subsidiary in respect of media
production-level financings, to the extent such financings are non-recourse to the Borrower or any Subsidiary Guarantor; and
(l) other Indebtedness of the Borrower or its Subsidiaries
in an aggregate principal amount not exceeding the excess of 15% of Consolidated Net Worth over the aggregate outstanding amount of obligations secured by Liens incurred in accordance with Section 7.01(t) at any time outstanding.
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7.03. Fundamental Changes. The Borrower shall not, nor shall the Borrower permit any Significant Subsidiary to, merge, dissolve, liquidate, consolidate with or into another Person, agree to or
effect any acquisition of at least a majority of the Capital Stock or all or substantially all of the assets of any Person or any division or line of business of any 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:
(a) so long as no Default exists or would result therefrom,
the Borrower may merge or consolidate with any other Person provided that the Borrower shall be the continuing or surviving Person;
(b) any Significant Subsidiary may merge with (i) the
Borrower, provided that the Borrower shall be the continuing or surviving Person, (ii) any one or more other Subsidiaries, provided that when any Subsidiary Guarantor is merging with another Subsidiary, a Subsidiary Guarantor shall be the continuing or surviving Person, or (iii) any other Person provided that such Significant Subsidiary shall be the continuing or surviving Person;
(c) any Significant Subsidiary may Dispose of all or
substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Subsidiary; provided that if the transferor in such transaction is a
Subsidiary Guarantor, then the transferee must either (i) be or simultaneously with such transaction become (by executing and delivering to the Administrative Agent a joinder agreement, in form and substance reasonably satisfactory to the
Administrative Agent, to the Subsidiary Guaranty) a Subsidiary Guarantor or (ii) be the Borrower;
(d) so long as no Default exists or would result therefrom,
the Borrower or a Significant Subsidiary may acquire the stock or other securities of, or the majority of assets of, any Person, provided that, if the consideration for
such acquisition exceeds $100,000,000, not less than five (5) Business Days prior to the consummation of such proposed acquisition, the Borrower shall have delivered to the Administrative Agent a certificate demonstrating compliance on a Pro Forma
Basis with the financial covenants set forth in Section 7.05 hereof;
(e) the Borrower or any Significant Subsidiary may acquire
the Capital Stock of any Subsidiary of the Borrower existing on the Effective Date from any then existing minority holder thereof; and
(f) the foregoing shall not restrict the consummation of
the EOne Acquisition.
7.04. [Intentionally Omitted].
7.05. Financial Covenants.
(a) Consolidated Interest Coverage Ratio. Following the making of the Loans on the Closing Date, the Borrower shall not permit the Consolidated Interest Coverage Ratio as of the end of any fiscal quarter of the
Borrower ending after the Closing Date to be less than 3.00:1.00.
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(b) Consolidated Total Leverage Ratio. Following the making of the Loans on the Closing Date, the Borrower shall not permit the Consolidated Total Leverage Ratio as at the end of any fiscal quarter ended after the
Closing Date to exceed the applicable ratio set forth in the applicable column opposite such fiscal quarter in the table below, based on the aggregate gross proceeds of Capital Stock issued by the Borrower after August 22, 2019 and on or prior to the
Closing Date (“Equity Proceeds”); provided that (i) such ratio shall be calculated on a Pro
Forma Basis for any Measurement Period including the fiscal quarter in which an acquisition or disposition occurs for which, in the case of an acquisition, the purchase price exceeds $100,000,000 or, in the case of a disposition, the fair market
value of assets or business disposed exceeds $100,000,000; (ii) following such time after the Closing Date when the Consolidated Total Leverage Ratio is no greater than 3.75 to 1.00 for at least four fiscal quarters, then, upon written notice (such
notice, a “Leverage Notice”) to the Administrative Agent from the Borrower that an acquisition (other than the EOne Acquisition) with an aggregate consideration greater than
or equal to $500,000,000 has been consummated, then, notwithstanding the table below, the Borrower shall not permit the Consolidated Total Leverage Ratio to exceed 4.00 to 1.00 for each of the five consecutive fiscal quarters following the
consummation of such acquisition; and (iii) following the five consecutive fiscal quarter period set forth in clause (ii), the Borrower shall not permit the Consolidated
Total Leverage Ratio to exceed the applicable ratio set forth in the table below for not fewer than four fiscal quarters before a subsequent Leverage Notice is delivered to the Administrative Agent:
|
Fiscal Quarters ended on or about
|
Equity Proceeds of less than
$1.0 billion:
|
Equity Proceeds equal to or
greater than $1.0 billion:
|
|
December 31, 2019, March 31, 2020 and June 30, 2020
|
5.65 to 1.00
|
5.40 to 1.00
|
|
September 30, 2020
|
5.65 to 1.00
|
5.65 to 1.00
|
|
December 31, 2020, March 31, 2021 and June 30, 2021
|
5.20 to 1.00
|
4.95 to 1.00
|
|
September 30, 2021
|
5.70 to 1.00
|
5.45 to 1.00
|
|
December 31, 2021, March 31, 2022 and June 30, 2022
|
4.50 to 1.00
|
4.35 to 1.00
|
|
September 30, 2022
|
5.00 to 1.00
|
4.85 to 1.00
|
|
December 31, 2022, March 31, 2023 and June 30, 2023
|
3.80 to 1.00
|
3.60 to 1.00
|
66
|
Fiscal Quarters ended on or about
|
Equity Proceeds of less than
$1.0 billion:
|
Equity Proceeds equal to or
greater than $1.0 billion:
|
|
September 30, 2023
|
4.30 to 1.00
|
4.10 to 1.00
|
|
December 31, 2023 and thereafter
|
3.50 to 1.00
|
3.50 to 1.00
|
7.06. Sanctions. The Loan Parties shall not directly or, to the knowledge of the Borrower, indirectly, use the proceeds of any Loan, or lend, contribute or otherwise make available such proceeds
to any Subsidiary, joint venture partner or other Person, (a) to fund any activities of or business with any Person, or in any Designated Jurisdiction, that, at the time of such funding, is the subject of Sanctions unless otherwise licensed by OFAC
or the U.S. Department of State or otherwise authorized under applicable Law, or (b) if such use of proceeds or funding will result in a violation by any Person (including any individual or entity participating in the transaction, whether as a
Lender, Lead Arranger, Administrative Agent or otherwise) of Sanctions.
7.07. Anti-Corruption Laws. The Loan Parties shall not directly or, to the knowledge of the Borrower, indirectly use the proceeds of any Loans for any purpose which would breach the United States
Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010, or other similar anti-corruption legislation in another jurisdiction in which the Borrower conducts business.
ARTICLE VIII.
EVENTS OF DEFAULT AND REMEDIES
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 and as required to be paid herein, any amount of principal of any Loan, or (ii) within five days after the same becomes due, any interest on any Loan, or
any fee due hereunder, or (iii) within 30 days after the date for payment specified on the invoice therefor, any other amount payable hereunder or under any other Loan Document; or
(b) Specific Covenants. The Borrower fails to perform or observe any term, covenant or agreement contained in any of Section 6.05 or Article VII; or
(c) Other Defaults. (i) Any Loan Party fails to perform or observe any other covenant or agreement in Section 6.01 or 6.02 on its part to be performed or observed, and such failure continues for 15 days, or (ii) any Loan Party fails to perform or observe any other covenant or agreement (not specified in subsection (a) or (b) of this Section
8.01 or clause (i) of this Section 8.01(c)) contained in any Loan Document on
its part to be performed or observed and such failure continues for 30 days after receipt of notice from the Administrative Agent or any Lender of such Default; or
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(d) Representations and Warranties. Any representation or warranty made or deemed made by the Borrower or any other Loan Party herein, or in any other Loan Document, or in any certificate or document required to be furnished
pursuant to any Loan Document shall be materially incorrect when made or deemed made; or
(e) Cross-Default. The Borrower or any Subsidiary (A) fails to make any payment when due, after giving effect to any applicable grace period (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise)
in respect of any Indebtedness for borrowed money or credit received or in respect of any Capitalized Leases or in respect of any guaranties by the Borrower or any Subsidiary of any such Indebtedness of another Person (other than Indebtedness
hereunder) having an aggregate principal amount of more than the Threshold Amount, or (B) defaults (after giving effect to any applicable grace period, and unless waived) with respect to any other agreement relating to any such Indebtedness having an
aggregate principal amount of more than the Threshold Amount, the effect of which default is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause, with the giving of
notice if required, such Indebtedness to become due prior to its stated maturity; or
(f) Insolvency Proceedings, Etc. Any Loan Party or any of its Significant Subsidiaries institutes or consents to the institution of any proceeding under any applicable Debtor Relief Law, or makes an assignment for the benefit of
creditors; or applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or for all or any material part of its property; or consents to the entry of an order for
relief in an involuntary case under applicable Debtor Relief Laws; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar custodian is appointed without the application or consent of such Person and the appointment
continues undischarged or unstayed for 60 calendar days; or any proceeding under any Debtor Relief Law relating to any such Person or to all or any material part of its property is instituted without the consent of such Person and continues
undismissed or unstayed for 60 calendar days, or an order for relief is entered in any such proceeding which order is not stayed; or
(g) Inability to Pay Debts; Attachment. The Borrower or any Significant Subsidiary admits in writing its inability, or fails generally to pay its debts as they become due; or
(h) Judgments. There is entered against the Borrower or any Significant Subsidiary (i) one or more final judgments or orders for the payment of money in an aggregate amount (as to all such judgments or orders) exceeding the
Threshold Amount (to the extent not covered by insurance as to which the insurer does not dispute coverage) and there is a period of 60 consecutive days during which such judgment(s) remain undischarged, unvacated, unbonded or unstayed; or
(i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which has resulted or would reasonably be expected to result in liability of the Borrower under Title IV of ERISA to the Pension Plan,
Multiemployer Plan or the PBGC in an aggregate amount in excess of the Threshold Amount, or (ii) the Borrower or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period and any extension of time for payment in
connection with a dispute under Title IV of ERISA, any
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installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan with respect to which it has withdrawal liability in an
aggregate amount in excess of the Threshold Amount; or
(j) Invalidity of Loan Documents. Any material provision of any Loan Document, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or satisfaction in full of
all the Loans and all other Obligations, ceases to be in full force and effect; or any Loan Party contests in writing the validity or enforceability of any Loan Document; or any Loan Party denies in writing that it has any or further liability or
obligation under any Loan Document, or revokes, terminates or rescinds in writing any Loan Document, except in each case to the extent in accordance with the terms of such Loan Document; or
(k) Change of Control. There occurs any Change of Control.
8.02. Remedies Upon Event of Default. If (x) prior to the Closing Date, any Event of Default described in Section 8.01(a)(ii)
or, solely with respect to the Borrower, (f) or (g) occurs and is continuing or (y) on or
after the Closing Date (after giving effect to the funding of the Loans on the Closing Date), any Event of Default occurs and is continuing, the Administrative Agent shall, at the request of, or may, with the consent of, the Required Lenders, take
any or all of the following actions:
(a) declare the Commitment of each Lender to 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; and
(c) exercise on behalf of itself and the Lenders all rights
and remedies available to it and the Lenders under the Loan Documents;
provided, however,
that upon 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, the Commitments of each Lender shall automatically terminate and the unpaid principal amount of
all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable, in each case without further act of the Administrative Agent or any Lender.
During the period from and including the Effective Date and to and including the earlier of the Commitment Termination Date (after giving effect to any funding of the
Loans on such date) and the funding of the Loans on the Closing Date, and notwithstanding (i) that any representation made on the Effective Date or on the Closing Date (excluding the Specified Representations and the EOne Acquisition Agreement
Representations) was incorrect, (ii) any failure by the Borrower to comply with the affirmative covenants and negative covenants (excluding compliance on the Closing Date with Section
7.01 (excluding any non-consensual liens arising by operation of law) and Section 7.03), (iii) any provision to the contrary in this Agreement or otherwise or
(iv) that any condition to the Effective Date may subsequently be determined not to have been satisfied, neither the Administrative Agent nor any Lender shall be entitled to (a) cancel any of its
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Commitments, (b) rescind, terminate or cancel this Agreement or any of its Commitments hereunder or exercise any right or remedy or make or enforce any claim under this
Agreement, to the extent to do so would prevent, limit or delay the making of its Loans, (c) refuse to participate in making its Loans when required to do so under this Agreement or (d) exercise any right of set-off or counterclaim in respect of its
Loans to the extent to do so would prevent, limit or delay the making of its Loans; provided, that the conditions set forth in Section 4.02 are satisfied. Furthermore, (a) the rights and remedies of the Lenders and the Administrative Agent shall not be limited in the event that any condition set forth in Section 4.02 is not satisfied on the Closing Date and (b) from the Closing Date after giving effect to the funding of the Loans on such date, all of the rights, remedies and entitlements of the
Administrative Agent and the Lenders shall be available notwithstanding that such rights were not available prior to such time as a result of the foregoing.
8.03. Application of Funds. After the exercise of remedies provided for in Section 8.02 (or after the Loans have
automatically become immediately due and payable as set forth in the first proviso to Section 8.02), any amounts received on account of the Obligations shall be applied by
the Administrative Agent in the following order:
First, to payment of that portion of the Obligations constituting fees,
indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to the Administrative Agent payable under Section 10.04(a) and amounts payable
under Article III) payable to the Administrative Agent in its capacity as such;
Second, to payment of that portion of the Obligations constituting fees,
indemnities and other amounts (other than principal and interest) payable to the Lenders (including fees, charges and disbursements of counsel to the respective Lenders payable under Section
10.04(a) and amounts payable under Article III), ratably among them in proportion to the respective amounts described in this clause Second payable to them;
Third, to payment of that portion of the Obligations constituting accrued
and unpaid interest on the Loans, ratably among the Lenders in proportion to the respective amounts described in this clause Third payable to them;
Fourth, to payment of that portion of the Obligations constituting unpaid
principal of the Loans, ratably among the Lenders in proportion to the respective amounts described in this clause Fourth held by them; and
Last, the balance, if any, after all of the Obligations then due and owing
have been indefeasibly paid in full, to the Borrower or as otherwise required by Law.
ARTICLE IX.
AGENT
9.01. Appointment and Authority. Each of the Lenders hereby irrevocably appoints Bank of America to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and
authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental
thereto. Except with
70
respect to Section 9.06, the provisions of this Article are solely for the benefit of the
Administrative Agent and the Lenders, and neither the Borrower nor any other Loan Party shall have rights as a third party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” herein or in any other Loan
Documents (or any other similar term) with reference to the Administrative 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 as a
matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties.
9.02. Rights as a Lender. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same
as though it were not the Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder in its individual
capacity. Such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Borrower or any Subsidiary
or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders.
9.03. Exculpatory Provisions. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder
shall be administrative in nature. Without limiting the generality of the foregoing, the Administrative Agent:
(a) shall not be subject to any fiduciary or other implied
duties, regardless of whether a Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary
action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or
such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents); provided that the Administrative Agent shall not
be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law, including for the avoidance of doubt any action that may
be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law; and
(c) shall not, except as expressly set forth herein and in
the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or its Affiliates that is communicated to or obtained by the Person serving as the Administrative Agent
or any of its Affiliates in any capacity.
The Administrative Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or
such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections
10.01 and 8.02) or (ii) in the
71
absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgment. The Administrative Agent
shall be deemed not to have knowledge of any Default unless and until notice describing such Default is given to the Administrative Agent by the Borrower or a Lender.
The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made
in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of
the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement,
instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent.
9.04. Reliance by Administrative Agent. The Administrative Agent shall be entitled to rely upon, and, absent bad faith, gross negligence or willful misconduct, shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) reasonably believed by it to be genuine and
correct and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and reasonably believed by it to have been made by the proper Person,
and, absent bad faith, gross negligence or willful misconduct, 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. The Administrative
Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it with reasonable care, and, absent bad faith, gross negligence and willful misconduct, shall not be liable for any
action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
9.05. Delegation of Duties. The Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or
more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions
of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for
herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non
appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents.
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9.06. Resignation of Administrative Agent.
(a) The Administrative Agent may at any time give notice of
its resignation to the Lenders and the Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, with the consent of the Borrower unless an Event of Default is continuing (such consent not to be unreasonably
withheld or delayed), to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States. If no such successor shall have been so appointed by the Required Lenders
and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation (or such earlier day as shall be agreed by the Required Lenders) (the “Resignation Effective Date”), then the retiring Administrative Agent may (but shall not be obligated to) on behalf of the Lenders, with the consent of the Borrower unless an Event of Default is continuing (such consent
not to be unreasonably withheld or delayed), appoint a successor Administrative Agent meeting the qualifications set forth above. Whether or not a successor has been appointed, such resignation shall become effective in accordance with such notice on
the Resignation Effective Date.
(b) If the Person serving as Administrative Agent is a
Defaulting Lender pursuant to clause (d) of the definition thereof, the Required Lenders may, to the extent permitted by applicable law, by notice in writing to the
Borrower and such Person remove such Person as Administrative Agent and, with the consent of the Borrower unless an Event of Default is continuing (such consent not to be unreasonably withheld or delayed), appoint a successor. If no such successor
shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days (or such earlier day as shall be agreed by the Required Lenders) (the “Removal
Effective Date”), then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date.
(c) With effect from the Resignation Effective Date or the
Removal Effective Date (as applicable) (1) the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (2) except for any indemnity payments or other amounts then
owed to the retiring or removed Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender directly, until such time, if any, as the
Required Lenders appoint a successor Administrative Agent as provided for above. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers,
privileges and duties of the retiring (or removed) Administrative Agent (other than as provided in Section 3.01(g) and other than any rights to indemnity payments or other
amounts owed to the retiring or removed Administrative Agent as of the Resignation Effective Date or the Removal Effective Date, as applicable), and the retiring or removed Administrative Agent shall be discharged from all of its duties and
obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section). The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Borrower and such successor. After the retiring or removed Administrative Agent’s resignation or removal hereunder and under the other Loan Documents, the provisions of this Article and Section 10.04 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
73
any actions taken or omitted to be taken by any of them (i) while the retiring or removed Administrative Agent was acting as Administrative Agent and (ii) after such
resignation or removal for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent.
9.07. Non-Reliance on Administrative Agent and Other Lenders. Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of
their Related Parties and based on such documents and information as it has deemed appropriate, made its own appraisal of, and investigation into, the business, operations, property, financial and other conditions and creditworthiness of the Loan
Parties and its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges and agrees that it will, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties
and based on such documents and information as it shall from time to time deem appropriate, continue to make its own appraisal of, and investigation into, the business, operations, property, financial and other condition and creditworthiness of the
Loan Parties and its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.
9.08. No Other Duties, Etc. Anything herein to the contrary notwithstanding, none of the Joint Lead Arrangers, Bookrunners or Co-Syndication Agents listed on the cover page hereof shall have any
powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the Administrative Agent or a Lender hereunder.
9.09. Administrative Agent May File Proofs of Claim. In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, the
Administrative Agent (irrespective of whether the principal of any Loan 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 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 and all other amounts due the Lenders and the Administrative Agent
under Sections 2.10 and 10.04) allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to
make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making
74
of such payments directly to the Lenders, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel as provided herein, and any other amounts due the Administrative Agent under Sections 2.10 and 10.04.
Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of
reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.
9.10. Guaranty Matters. The Lenders irrevocably authorize the Administrative Agent, (a) to enter into any Subsidiary Guaranty (and any supplement thereto) and (b) to release any Subsidiary
Guarantor from its obligations under any Subsidiary Guaranty if such Person ceases to be a Subsidiary as a result of a transaction permitted hereunder. Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing
the Administrative Agent’s authority provided for in the preceding sentence.
9.11. Certain ERISA Matters.
(a) Each Lender (x) represents and warrants, as of the date
such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and the Lead Arrangers
and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that at least one of the following is and will be true:
(i) such Lender is not using “plan
assets” (within the meaning of Section 3(42) of ERISA or otherwise) of one or more Benefit Plans in connection with the Loans or the Commitments,
(ii) the transaction exemption set forth
in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts),
PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain
transactions determined by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement,
(iii) (A) such Lender is an investment
fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and
perform the Loans, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of
PTE 84-14 and (D) to the best
75
knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into,
participation in, administration of and performance of the Loans, the Commitments and this Agreement, or
(iv) such other representation, warranty
and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Lender.
(b) In addition, unless either (1) sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or (2) a Lender has provided
another representation, warranty and covenant in accordance with sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person
ceases being a Lender party hereto, for the benefit of, the Administrative Agent and the Lead Arrangers and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that none of
the Administrative Agent or any Lead Arranger or any of their respective Affiliates is a fiduciary with respect to the assets of such Lender involved in the Loans, the Commitments and this Agreement (including in connection with the reservation or
exercise of any rights by the Administrative Agent under this Agreement, any Loan Document or any documents related hereto or thereto).
9.12. Recovery of Erroneous Payments. Without limitation of any other provision in this Agreement, if at any time the Administrative Agent makes a payment hereunder in error to any Lender, whether or not in respect of an Obligation due
and owing by the Borrower at such time, where such payment is a Rescindable Amount, then in any such event, each Lender receiving a Rescindable Amount severally agrees to repay to the Administrative Agent forthwith on demand the Rescindable
Amount received by such Lender in immediately available funds in the currency so received, with interest thereon, for each day from and including the date such Rescindable Amount is received by it to but excluding the date of payment to the
Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. Each Lender irrevocably waives any and all defenses, including
any “discharge for value” (under which a creditor might otherwise claim a right to retain funds mistakenly paid by a third party in respect of a debt owed by another) or similar defense to its obligation to return any Rescindable Amount. The
Administrative Agent shall inform each Lender promptly upon determining that any payment made to such Lender comprised, in whole or in part, a Rescindable Amount.
ARTICLE X.
MISCELLANEOUS
10.01. Amendments, Etc. Subject to Section 3.03(b), no amendment or waiver of any provision of this Agreement or any
other Loan Document, and no consent to any departure by the Borrower or any other Loan Party therefrom, shall be effective unless in writing signed by the Required Lenders and the Borrower or the applicable Loan Party, as the case may be, and each
such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that no such amendment, waiver or consent shall:
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(a) extend or increase the Commitment of any Lender (or
reinstate any Commitment terminated pursuant to Section 8.02) without the written consent of such Lender;
(b) postpone any date fixed by this Agreement or any other
Loan Document for any payment (excluding mandatory prepayments) of principal, interest, fees or other amounts due to the Lenders (or any of them) hereunder or under any other Loan Document without the written consent of each Lender directly affected
thereby;
(c) reduce the principal of, or the rate of interest
specified herein on, any Loan or any fees or other amounts payable hereunder or under any other Loan Document without the written consent of each Lender directly affected thereby; provided,
however, that only the consent of the Required Lenders shall be necessary (i) to amend the definition of “Default Rate” or to waive any obligation of the Borrower or any
other Person to pay interest at the Default Rate or (ii) to amend any financial covenant hereunder (or any defined term used therein) even if the effect of such amendment would be to reduce the rate of interest on any Loan or to reduce any fee
payable hereunder;
(d) change Section 2.14 or Section 8.03 in a manner that would alter the pro rata sharing of payments required thereby without the written consent
of each Lender directly affected thereby;
(e) [intentionally omitted]; or
(f) change any provision of this Section or the definition
of “Required Lenders” without the written consent of each Lender;
and, provided further, that (i) no amendment, waiver or consent shall, unless in writing and
signed by the Administrative Agent in addition to the Lenders required above, affect the rights or duties of the Administrative Agent under this Agreement or any other Loan Document; (ii) Section
10.06(h) may not be amended, waived or otherwise modified without the consent of each Granting Lender all or any part of whose Loans are being funded by an SPC at the time of such amendment, waiver or other modification; and (iii) any
amendment, waiver or consent that affects the rights or obligations of Lenders of one Class differently than the Lenders of the other Class shall additionally require the consent of the Lenders of each such Class representing the Required Lenders with
respect to such Class. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder or under any other Loan Document (and any amendment, waiver or consent
which by its terms requires the consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the Commitment of any Defaulting Lender may not be increased or
extended without the consent of such Lender and (y) any waiver, amendment, or modification requiring the consent of all Lenders or each affected Lender, only if by its terms it affects any Defaulting Lender disproportionately adversely relative to
other affected Lenders, shall require the consent of the Defaulting Lender.
If any assignee Lender is an Affiliate of the Borrower, then any such assignee Lender shall have no right to vote as a Lender hereunder or under any of
the other Loan Documents for purposes of granting consents or waivers or for purposes of agreeing to amendments or other
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modifications to any of the Loan Documents or for purposes of making requests to the Administrative Agent pursuant to Section 8.01 or 8.02, and the determination of the Required Lenders shall for all purposes of this Agreement and the other Loan Documents be made
without regard to such assignee Lender’s interest in any of the Loans. If any Lender sells a participating interest in any of the Loans to a participant, and such participant is the Borrower or an Affiliate of the Borrower, then such transferor Lender
shall promptly notify the Administrative Agent of the sale of such participation. A transferor Lender shall have no right to vote as a Lender hereunder or under any of the other Loan Documents for purposes of granting consents or waivers or for
purposes of agreeing to amendments or modifications to any of the Loan Documents or for purposes of making requests to the Administrative Agent pursuant to Section 8.01 or 8.02 to the extent that such participation is beneficially owned by the Borrower or any Affiliate of the Borrower, and the determination of the Required Lenders shall for all
purposes of this Agreement and the other Loan Documents be made without regard to the interest of such transferor Lender in the Loans to the extent of such participation. The provisions of this paragraph shall not apply to an assignee Lender or
participant which is also a Lender on the Closing Date or to an assignee Lender or participant which has disclosed to the other Lenders that it is an Affiliate of the Borrower and which, following such disclosure, has been excepted from the provisions
of this paragraph in a writing signed by the Required Lenders determined without regard to the interest of such assignee Lender or transferor Lender, to the extent of such participation, in Loans.
Notwithstanding any provision herein to the contrary, if the Administrative Agent and the Borrower acting together identify any ambiguity, omission,
mistake, typographical error or other defect in any provision of this Agreement or any other Loan Document (including the schedules and exhibits thereto), then the Administrative Agent and the Borrower shall be permitted to amend, modify or supplement
such provision to cure such ambiguity, omission, mistake, typographical error or other defect, and such amendment shall become effective without any further action or consent of any other party to this Agreement.
10.02. Notices; Effectiveness; Electronic Communication.
(a) Notices Generally. Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided in subsection
(b) below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by facsimile as follows, and all
notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:
(i) if to the Borrower or the
Administrative Agent to the address, facsimile number, electronic mail address or telephone number specified for such Person on Schedule 10.02; and
(ii) if to any other Lender, to the
address, facsimile number, electronic mail address or telephone number specified in its Administrative Questionnaire as provided to the Administrative Agent and the Borrower (including, as appropriate, notices delivered solely to the Person
designated by a Lender on its Administrative Questionnaire then in
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effect for the delivery of notices that may contain material non-public information relating to the Borrower).
Notices and other communications sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been
given when received; notices and other communications sent by facsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of
business on the next business day for the recipient). Notices and other communications delivered through electronic communications to the extent provided in subsection (b)
below, shall be effective as provided in such subsection (b).
(b) Electronic Communications. Notices and other communications to the Lenders hereunder may be delivered or furnished by electronic communication (including e-mail, FpML messaging and Internet or intranet websites) pursuant to
procedures approved by the Administrative Agent, provided that the foregoing shall not apply to notices to any Lender pursuant to Article II if such Lender has notified the Administrative Agent that it is incapable of receiving notices under such Article by electronic communication. The Administrative Agent and the Borrower may,
in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that
approval of such procedures may be limited to particular notices or communications.
Unless the Administrative Agent and the Borrower otherwise agree, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s
receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), and (ii) notices or communications posted to an Internet or intranet website
shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or
communication is available and identifying the website address therefor; provided that, for both clauses
(i) and (ii), if such notice, email or other communication is not sent during the normal business hours of the recipient, such notice, email or communication
shall be deemed to have been sent at the opening of business on the next business day for the recipient.
(c) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY
DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR
FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to the Borrower, any Lender or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise)
arising out of the Borrower’s, any Loan Party’s
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or the Administrative Agent’s transmission of Borrower Materials or notices through the Platform, any other electronic platform or electronic messaging service, or the
Internet.
(d) Change of Address, Etc. The Borrower and the Administrative Agent may change its address, facsimile or telephone number for notices and other communications hereunder by notice to the other parties hereto. Each other Lender
may change its address, facsimile or telephone number for notices and other communications hereunder by notice to the Borrower and the Administrative Agent. In addition, each Lender agrees to notify the Administrative Agent from time to time to
ensure that the Administrative Agent has on record (i) an effective address, contact name, telephone number, facsimile number and electronic mail address to which notices and other communications may be sent and (ii) accurate wire instructions for
such Lender. Furthermore, each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the
Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable Law, including United States Federal and state securities Laws, to make reference to Borrower Materials that
are not made available through the “Public Side Information” portion of the Platform and that may contain material non-public information with respect to the Borrower, its Affiliates or their respective securities for purposes of United States
Federal or state securities laws.
(e) Reliance by Administrative Agent and Lenders. The Administrative Agent and the Lenders, if acting in good faith and without gross negligence or willful misconduct, shall be entitled to rely and act upon any notices (including
telephonic or electronic Loan Notices) purportedly given by or on behalf of the Borrower even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified
herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. The Borrower shall indemnify the Administrative Agent, each Lender and the Related Parties of each of them from all losses, costs, expenses and
liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of the Borrower in the absence of bad faith, gross negligence or willful misconduct. All telephonic notices to and other telephonic communications
with the Administrative Agent may be recorded by the Administrative Agent, and each of the parties hereto hereby consents to such recording.
10.03. No Waiver; Cumulative Remedies. No failure by any Lender or the Administrative Agent to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege
hereunder or under any other Loan Document shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided, and provided under each other Loan Document, are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.
Notwithstanding anything to the contrary contained herein or in any other Loan Document, the authority to enforce rights and remedies hereunder and under the other Loan
Documents against the Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at law in connection with such enforcement shall be instituted and maintained exclusively by, the
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Administrative Agent in accordance with Section 8.02 for the benefit of all the Lenders; provided, however, that the foregoing shall not prohibit (a) the Administrative Agent from exercising
on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrative Agent) hereunder and under the other Loan Documents, (b) [intentionally omitted], (c) any Lender from exercising setoff rights in accordance
with Section 10.08 (subject to the terms of Section 2.14), or (d) any Lender from filing proofs
of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to any Loan Party under any Debtor Relief Law; and provided further,
that if at any time there is no Person acting as Administrative Agent hereunder and under the other Loan Documents, then (i) the Required Lenders shall have the rights otherwise ascribed to the Administrative Agent pursuant to Section 8.02 and (ii) in addition to the matters set forth in clauses (c) and (d) of the preceding proviso and subject to Section 2.14, any Lender may, with the consent of the Required Lenders, enforce
any rights and remedies available to it and as authorized by the Required Lenders.
10.04. Expenses; Indemnity; Damage Waiver.
(a) Costs and Expenses. Other than with respect to Taxes, which shall (except to the extent they arise from a non-Tax claim hereunder) be governed solely by Section
3.01, the Borrower shall pay or reimburse (i) all reasonable out-of-pocket expenses incurred by the Administrative Agent (including the reasonable fees, charges and disbursements of a single primary firm and, if reasonably requested by
the Administrative Agent and approved by the Borrower, a single local or foreign firm in each relevant jurisdiction (including Canada) and a single regulatory firm in each relevant regulatory field, of counsel for the Administrative Agent), in
connection with the syndication of the credit facilities provided for herein, the preparation, negotiation, execution, delivery and administration of this Agreement and the other Loan Documents or any amendments, modifications or waivers of the
provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated) and (ii) all out-of-pocket expenses incurred by the Administrative Agent or the Lenders (including the reasonable fees, charges and
disbursements of counsel for the Administrative Agent and the Lenders), in connection with the enforcement or protection of its rights (A) in connection with this Agreement and the other Loan Documents, including its rights under this Section, or (B)
in connection with the Loans made hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans.
(b) Indemnification by the Borrower. Other than with respect to Taxes, which shall be governed solely by Section 3.01, the Borrower shall indemnify the
Administrative Agent (and any sub-agent thereof), and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”)
against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses (including the reasonable fees, charges and disbursements of (A) a single primary firm and, if reasonably requested by the relevant
Indemnitees and approved by the Borrower (which approval shall not be unreasonably withheld), a single foreign firm or local firm in each relevant jurisdiction (including Canada), of counsel for the Indemnitees, unless a conflict exists, in which
case, reasonable fees and expenses of reasonably necessary additional counsel for the affected Indemnitee(s) shall be covered), incurred by any Indemnitee or asserted against any Indemnitee by any Person (including the Borrower or any other Loan
Party) other than such Indemnitee and its Related Parties arising out of, in connection with, or as a result of (i) the execution or delivery
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of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective
obligations hereunder or thereunder, the consummation of the Transactions and the other transactions contemplated hereby or thereby, or, in the case of the Administrative Agent (and any sub-agent thereof) and its Related Parties only, the
administration of this Agreement and the other Loan Documents, (ii) any Loan or the use or proposed use of the proceeds therefrom, (iii) any actual or alleged presence or release of Hazardous Materials on or from any property owned or operated by the
Borrower or any of its Subsidiaries, or any Environmental Liability related in any way to the Borrower or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower or any other Loan Party, and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction by final and
nonappealable judgment (or a settlement that expressly addresses indemnification) to have resulted from the gross negligence or willful misconduct of such Indemnitee, (y) result from a claim brought by the Borrower or any other Loan Party against an
Indemnitee for material breach of such Indemnitee’s obligations hereunder or under any other Loan Document, if the Borrower or such other Loan Party has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of
competent jurisdiction (or a settlement that expressly addresses indemnification) or (z) arise from claims of any Indemnitee solely against one or more other Indemnitees not arising from any acts or omissions of the Loan Parties (except any such claims
against the Administrative Agent (in its capacity as the Administrative Agent) or the Lead Arrangers (in their capacities as Lead Arrangers)). For purposes hereof, a “Related Person” of an indemnified person means (i) if the indemnified person is the
Administrative Agent or any of its Related Parties, any of the Administrative Agent and its Related Parties, (ii) if the indemnified person is a Lender or any of its Related Parties, any of such Lender and its Related Parties.
(c) Reimbursement by Lenders. To the extent that the Borrower for any reason fails to pay any amount required under subsection (a) or (b) of this Section to be paid by it to the Administrative Agent (or any sub-agent thereof) or any of its Related Parties, each Lender severally agrees to pay to the
Administrative Agent (or any such sub-agent) or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought based on each Lender’s share of
the Total Credit Exposure (of all Classes) at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender), such payment to be made severally among them based on each Lender’s Applicable Percentage
(determined as of the time that the applicable unreimbursed expense or indemnity payment is sought and determined taking into account all Classes of Loans then outstanding); provided
that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent (or any such sub-agent) in its capacity as such or against any such
Related Party acting for the Administrative Agent (or any such sub-agent) in such capacity. The obligations of the Lenders under this subsection (c) are subject to the
provisions of Section 2.13(d).
(d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by applicable law, no party hereto shall assert, and each party hereto hereby waives, and
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acknowledges that no other Person shall have, any claim against any other party, on any theory of liability, for special, indirect, consequential or punitive damages (as
opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the Transactions and the other transactions contemplated hereby or
thereby, any Loan or the use of the proceeds thereof; provided, that, nothing in this Section 10.04(d) shall relieve the Borrower of any obligation it may have to indemnify an Indemnitee against any special, indirect, consequential or punitive damages asserted
against such Indemnitee by a third party. No Indemnitee referred to in subsection (b) above shall be liable for any damages arising from the use by unintended recipients of
any information or other materials distributed to such unintended recipients by such Indemnitee through a Platform in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby other than for direct or
actual damages resulting from the gross negligence or willful misconduct of such Indemnitee or any of its Related Persons as determined by a final and nonappealable judgment of a court of competent jurisdiction (or a settlement that expressly addresses
indemnification).
(e) Payments. All amounts due under this Section shall be payable not later than 30 days after submission of an invoice therefor.
(f) Survival. The agreements in this Section and the indemnity provisions of Section 10.02(e) shall survive the resignation of the Administrative
Agent, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations.
10.05. Payments Set Aside. To the extent that any payment by or on behalf of the Borrower is made to the Administrative Agent or any Lender, or the Administrative Agent or any Lender
exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by the
Administrative Agent or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law, then (a) to the extent of such recovery, the obligation or part thereof
originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each Lender severally agrees to pay to the Administrative Agent upon demand its
applicable share (without duplication) of any amount so recovered from or repaid by the Administrative Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the applicable Overnight Rate
from time to time in effect, in the applicable currency of such recovery or payment. The obligations of the Lenders under clause (b) of the preceding sentence shall survive
the payment in full of the Obligations and the termination of this Agreement.
10.06. Successors and Assigns.
(a) Successors and Assigns Generally. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that neither the
Borrower nor any other Loan Party may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent
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of the Administrative Agent and each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in
accordance with the provisions of subsection (b) of this Section, (ii) by way of participation in accordance with the provisions of subsection (d) of this Section, (iii) by way of pledge or assignment of a security interest subject to the restrictions of subsection
(f) of this Section, or (iv) to an SPC in accordance with the provisions of subsection (h) of this Section (and any other attempted assignment or transfer by
any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent
provided in subsection (d) of this Section and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent and the Lenders) any
legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign to one or more assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the
time owing to it); provided that any such assignment shall be subject to the following conditions:
(i) Minimum Amounts.
(A) in the case of an assignment of the
entire remaining amount of the assigning Lender’s Commitment of any Class and/or the Loans of any Class at the time owing to it or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be
assigned; and
(B) in any case not described in subsection (b)(i)(A) of this Section, the aggregate amount of the Commitments of any Class and/ or the Loans of any Class of the assigning Lender subject to each such
assignment, determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date, shall not be less
than $10,000,000 unless each of the Administrative Agent and, so long as no Event of Default has occurred and is continuing, the Borrower, otherwise consents (each such consent not to be unreasonably withheld or delayed); provided, however, that concurrent assignments to members of an Assignee Group and concurrent assignments from
members of an Assignee Group to a single assignee (or to an assignee and members of its Assignee Group) will be treated as a single assignment for purposes of determining whether such minimum amount has been met.
(ii) Proportionate Amounts. Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect
to the Loans or the Commitment assigned;
(iii) Required Consents. No consent shall be required for any assignment except to the extent required by subsection (b)(i)(B)
of this Section and, in addition:
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(A) the consent of the Borrower (such
consent not to be unreasonably withheld or delayed) shall be required unless (1) an Event of Default under Section 8.01(a), (f) or (g) has occurred and is continuing at the time of such assignment or (2) such assignment is to a Lender or, after the Closing
Date, to an Affiliate of a Lender or an Approved Fund; provided that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by
written notice to the Administrative Agent within five (5) Business Days after having received written notice thereof; and
(B) the consent of the Administrative
Agent (such consent not to be unreasonably withheld or delayed) shall be required if such assignment is to a Person that is not a Lender or, after the Closing Date, to an Affiliate of a Lender or an Approved Fund.
(iv) Assignment and Assumption. The parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee in the
amount of $3,500; provided, however, that the Administrative Agent may, in its sole
discretion, elect to waive such processing and recordation fee in the case of any assignment. The assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire (and the Administrative Agent shall promptly
deliver a copy thereof to the Borrower).
(v) No Assignment to Certain Persons. No such assignment shall be made (A) to the Borrower or any of the Borrower’s Subsidiaries, (B) to any Defaulting Lender or any of its Subsidiaries, or any Person who,
upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (B), (C) to a natural Person (or a holding company, investment
vehicle or trust for, or owned and operated for the primary benefit of a natural Person) or (D) to a Disqualified Institution.
(vi) Notes. The assigning Lender shall deliver all Notes evidencing the assigned interests to the Borrower or the Administrative Agent (and the Administrative Agent shall deliver such Notes to the
Borrower).
(vii) [Intentionally Omitted].
(viii) No Assignment Resulting in Additional Indemnified Taxes. No such assignment shall be made to any Person that would result in the imposition of Indemnified Taxes in excess of the Indemnified Taxes that
would be imposed in the absence of such assignment.
(ix) Certain Additional Payments. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the
other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment,
purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Borrower and
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the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the
applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire
(and fund as appropriate) its full pro rata share of all Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become
effective under applicable Law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
(x) Costs and Fees. Any Affiliate or Approved Fund that is assigned any portion of any Commitment or Loan hereunder will not charge the Borrower any fees or costs in connection with any funding obligations
that are higher than those charged by the assigning Lender. Nothing in this clause (x) shall otherwise be deemed to alter or affect in any manner the Borrower’s
reimbursement obligations under Article II in respect of such assignee.
Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c)
of this Section, from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights
and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an
Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be subject to the obligations under and entitled to the benefits of Sections 3.01, 3.04, 3.05,
and 10.04 with respect to facts and circumstances occurring prior to the effective date of such assignment; provided,
that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender. Upon
request, the Borrower (at its expense) shall execute and deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subsection shall be treated for purposes
of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with subsection (d) of this Section.
(c) Register. The Administrative Agent, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), shall maintain at the Administrative Agent’s Office a copy of each Assignment and
Assumption delivered to it (or the equivalent thereof in electronic form) and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts (and stated interest) of the Loans owing to, each
Lender pursuant to the terms hereof from time to time (the “Register”). Upon its receipt of a duly completed Assignment and Assumption executed by an assigning Lender and an
assignee, the processing and recordation fee referred to in subsection (b) of this Section 10.06
and any written consent to such assignment required by subsection (b) of this
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Section 10.06, the Administrative Agent shall accept such Assignment and Assumption and record
the information contained therein in the Register. The entries in the Register shall be conclusive, absent demonstrable error, and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
(d) Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent sell participations to any Person (other than a natural Person, or a holding company, investment
vehicle or trust for, or owned and operated for the primary benefit of a natural Person, a Defaulting Lender, the Borrower or any of the Borrower’s Affiliates or Subsidiaries or a Disqualified Institution) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such
obligations and (iii) the Borrower, the Administrative Agent and the Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. For the avoidance of doubt, each
Lender shall be responsible for the indemnity under Section 10.04(c) without regard to the existence of any participation.
Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and
the other Loan Documents and to approve any amendment, modification or waiver of any provision of this Agreement or the other Loan Documents; provided that such agreement or
instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in clause (a), (b) or (c) of the first proviso to Section
10.01 that directly affects such Participant (it being understood that (i) any vote to rescind any acceleration made pursuant to Section 8.02 of amounts owing
with respect to the Loans and other Obligations and (ii) any modifications of the provisions relating to amounts, timing or application of prepayments of Loans and other Obligations shall not require the approval of such Participant). Subject to subsection (e) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of Sections
3.01, 3.04 and 3.05 to the same extent (subject to the requirements in those
sections, including timely delivery of forms pursuant to Section 3.01) as if it were a Lender of the relevant Loan and had acquired its interest by assignment pursuant to subsection (b) of this Section; provided that such Participant (A) agrees to be subject to the
provisions of Sections 3.06 and 10.13 as if it were an assignee under subsection (b) of this Section and (B) shall not be entitled to receive any greater payment under Sections 3.01 or 3.04, with respect to any participation, than the Lender from whom it acquired the applicable participation would have been entitled to receive, except, subject to subsection (e) of this Section, to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable
participation. Each Lender that sells a participation agrees, at the Borrower’s request and expense, to use reasonable efforts to cooperate with the Borrower to effectuate the provisions of Section 3.06 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08
as though it were a Lender; provided that such Participant agrees to be subject
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to Section 2.14 as though it were a Lender. Each Lender that sells a participation shall,
acting solely for this purpose as an agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations
under the Loan Documents (the “Participant Register”); provided that no Lender shall have any
obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any
Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in
the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any
notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(e) Limitations upon Participant Rights. A Participant shall not be entitled to receive any greater payment under Section 3.01 or 3.04 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such
Participant is made with the Borrower’s prior written consent. A Participant shall not be entitled to the benefits of Section 3.01 unless the Borrower is notified of the
participation sold to such Participant and such Participant agrees, for the benefit of the Borrower, to comply with Section 3.01(e) as though it were a Lender.
(f) Certain Pledges. Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including under its Note(s), if any) to secure obligations of such Lender, including
any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(g) [Intentionally Omitted].
(h) Special Purpose Funding Vehicles. Any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from
time to time by the Granting Lender to the Administrative Agent and the Borrower (an “SPC”) the option to provide all or any part of any Loan that such Granting Lender would otherwise be obligated to make pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Loan, and (ii) such granting shall not relieve the Granting Lender of any of its
obligations under this Agreement, including, without limitation, its obligation to fund a Loan if, for any reason, its SPC fails to fund any such Loan. Each party hereto hereby agrees that (i) neither the grant to any SPC nor the exercise by any SPC
of such option shall increase the costs or expenses or otherwise increase or change the obligations of the Borrower under this Agreement (including its obligations under Section 3.04),
(ii) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, provided, however, that the Granting
Lender shall remain liable for such obligations, and (iii) the Granting Lender shall for all purposes, including the approval of any amendment, waiver
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or other modification of any provision of any Loan Document, remain the lender of record hereunder. The making of a Loan by an SPC hereunder shall utilize the Commitment
of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the
date that is one year and one day after the payment in full of all outstanding commercial paper or other senior debt of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization,
arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof, provided, however, that each Granting Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such SPC
during such period of forbearance. Without limiting the indemnification obligations of any indemnifying Lender pursuant to this subsection, in the event that the indemnifying Lender fails timely to compensate any Loan Party for such claim, any Loans
held by the relevant SPC shall, if requested by the Borrower, be assigned promptly to the Granting Lender that administers the SPC and the granting of rights pursuant to this subsection to such SPC shall be void. Notwithstanding anything to the
contrary contained herein, any SPC may (i) with notice to, but without prior consent of the Borrower and the Administrative Agent and with the payment of a processing fee in the amount of $3,500 (which processing fee may be waived by the Administrative
Agent in its sole discretion), assign all or any portion of its right to receive payment with respect to any Loan to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Loans to any rating
agency, commercial paper dealer or provider of any surety or guarantee or credit or liquidity enhancement to such SPC.
(i) Disqualified Institutions. The Administrative Agent shall promptly notify the Lenders of the Persons identified as Disqualified Institutions by the Borrower pursuant to clauses (i) and (ii) of the definition thereof from time to time and upon request by any Lender; it being understood and agreed that no such list
or change to such list of Disqualified Institutions shall be effective until after the Lenders have been notified of such list or such change. The Lenders may disclose the list of Disqualified Institutions to actual or prospective assignees.
Notwithstanding anything to the contrary herein, 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 hereof 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 any Disqualified Institution.
10.07. Treatment of Certain Information; Confidentiality. Each of the Administrative Agent and the Lenders agrees on behalf of itself and its Related Parties to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (a) to its Affiliates and to its and its Affiliates’ respective partners, directors, officers, employees, agents, trustees, advisors and representatives (it being understood
that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential and that the Administrative Agent or the relevant Lender, as the case may be, shall
be responsible to the Loan Parties and their Affiliates for any failure by any such Persons who are controlled Affiliates of the
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Administrative Agent or the relevant Lender, as the case may be, to maintain the confidentiality of the Information), (b) to the extent required or requested by any
regulatory authority purporting to have jurisdiction over such Person or its Related Parties (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process (provided, that in the case of this clause (c)
or the foregoing clause (b), the Administrative Agent or such Lender, as the case may be, shall (x) disclose only the information required and (y) except with respect to any
audit or examination conducted by bank accountants or any governmental agency, securities or bank regulatory authority exercising examination or regulatory authority and only to the extent permitted by applicable law and regulation, notify the Borrower
in writing of such disclosure and will use its best efforts to send such written notice in advance of such disclosure, so that the Borrower may seek a protective order or other appropriate remedy), (d) to any other party hereto, (e) in connection with
the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing
provisions substantially the same as those of this Section, (i) to any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights and obligations under this Agreement or (ii) any actual or prospective party (or
its Related Parties) to any swap, derivative or other transaction under which payments are to be made by reference to the Borrower and its obligations, this Agreement or payments hereunder, (g) on a confidential basis to (i) any rating agency in
connection with rating the Borrower or its Subsidiaries or the term loan facilities provided hereunder or (ii) the CUSIP Service Bureau or any similar agency in connection with the application, issuance, publishing and monitoring of CUSIP numbers or
other market identifiers with respect to the credit facilities provided hereunder, (h) with the consent of the Borrower or (i) to the extent such Information (x) becomes publicly available other than as a result of a breach of this Section, (y) becomes
available to the Administrative Agent, any Lender or any of their respective Affiliates on a nonconfidential basis from a source other than any Loan Party or any of its Affiliates (and other than a source acting on its or their behalf), and not known
by the Administrative Agent or such Lender to be in violation of confidentiality to any such Loan Party or any of its Affiliates or (z) is independently discovered or developed by a party hereto without utilizing any Information received from the
Borrower or violating the terms of this Section 10.07. In addition, the Administrative Agent and the Lenders may disclose the existence of this Agreement and information
about this Agreement to market data collectors, similar service providers to the lending industry and service providers to the Administrative Agent and the Lenders in connection with the administration of this Agreement, the other Loan Documents, the
Commitments and the Loans.
For purposes of this Section, “Information” means all information supplied by or on behalf of
the Borrower or any Subsidiary pursuant to this Agreement or any other Loan Document or in anticipation or preparation herefor or therefor, or obtained by the Administrative Agent or any Lenders in the course of any review of the books and records of
any Loan Party, other than any such information that is available to the Administrative Agent or any Lender on a nonconfidential basis prior to disclosure by the Borrower or any Subsidiary, without a duty of confidentiality to any Loan Party or any of
its Affiliates being violated.
Each of the Administrative Agent and the Lenders acknowledges that (a) the Information may include material non-public information concerning the Borrower or a Subsidiary,
as the case
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may be, (b) it has developed compliance procedures regarding the use of material non-public information and (c) it will handle such material non-public information in
accordance with applicable Law, including Federal and state securities Laws.
10.08. Right of Setoff. If an Event of Default shall have occurred and be continuing, each Lender is hereby authorized at any time and from time to time, to the fullest extent permitted by
applicable law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time owing by such Lender to or for the
credit or the account of the Borrower or any other Loan Party against any and all of the obligations of the Borrower or such Loan Party now or hereafter existing under this Agreement or any other Loan Document to such Lender or their respective
Affiliates, irrespective of whether or not such Lender or Affiliate shall have made any demand under this Agreement or any other Loan Document and although such obligations of the Borrower or such Loan Party may be contingent or unmatured or are owed
to a branch, office or Affiliate of such Lender different from the branch, office or Affiliate holding such deposit or obligated on such indebtedness; provided, that in the
event that any Defaulting Lender shall exercise any such right of setoff, the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which
it exercised such right of setoff. The rights of each Lender and their respective Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender or their respective Affiliates may have.
Each Lender agrees to notify the Borrower and the Administrative Agent promptly after any such setoff and application, provided that the failure to give such notice shall
not affect the validity of such setoff and application.
10.09. Interest Rate Limitation. Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the
maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If the Administrative Agent or any Lender shall receive interest in an amount that
exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to the Borrower. In determining whether the interest contracted for, charged, or received by the
Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary
prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder.
10.10. Counterparts; Integration; Effectiveness. This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an
original, but all of which when taken together shall constitute a single contract. This Agreement, the other Loan Documents and any separate letter agreements with respect to fees payable to the Administrative Agent constitute the entire contract
among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Except as provided in Section 4.01, this Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof that, when taken
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together, bear the signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature page of this Agreement by telecopy or other
electronic imaging means (e.g. “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Agreement.
10.11. Survival of Representations and Warranties. All representations and warranties made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in
connection herewith or therewith shall survive the execution and delivery hereof and thereof. Such representations and warranties have been or will be relied upon by the Administrative Agent and each Lender, regardless of any investigation made by
the Administrative Agent or any Lender or on their behalf and notwithstanding that the Administrative Agent or any Lender may have had notice or knowledge of any Default at the time of any Borrowing, and, to the extent made, shall continue in full
force and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied.
10.12. Severability. If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining
provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the
economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other
jurisdiction. Without limiting the foregoing provisions of this Section 10.12, if and to the extent that the enforceability of any provisions in this Agreement relating to
Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in good faith by the Administrative Agent, then such provisions shall be deemed to be in effect only to the extent not so limited.
10.13. Replacement of Lenders. If the Borrower is entitled to replace a Lender pursuant to the provisions of Section 3.06,
or if any Lender is a Defaulting Lender or a Non-Consenting Lender, then the Borrower may, at their sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in
accordance with and subject to the restrictions contained in, and consents required by, Section 10.06), all of its interests, rights (other than its existing rights to
payments pursuant to Sections 3.01 and 3.04) and obligations under this Agreement and the
related Loan Documents to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment), provided
that:
(a) the Borrower shall have paid (or caused a Subsidiary to
pay) to the Administrative Agent the assignment fee specified in Section 10.06(b) (unless the Administrative Agent waives such fee);
(b) such Lender shall have received payment of an amount
equal to 100% of the outstanding principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under
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Section 3.05) from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Borrower or applicable Subsidiary (in the case of all other amounts);
(c) in the case of any such assignment resulting from a
claim for compensation under Section 3.04 or payments required to be made pursuant to Section 3.01,
such assignment will result in a reduction in such compensation or payments thereafter;
(d) such assignment does not conflict with applicable Law;
and
(e) in the case of an assignment resulting from a Lender
becoming a Non-Consenting Lender, the applicable assignee shall have consented to the applicable amendment, waiver or consent.
A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances
entitling the Borrower to require such assignment and delegation cease to apply.
Each party hereto agrees that (a) an assignment required pursuant to this Section 10.13 may
be effected pursuant to an Assignment and Assumption executed by the Borrower, the Administrative Agent and the assignee and (b) the Lender required to make such assignment need not be a party thereto in order for such assignment to be effective and
shall be deemed to have consented to and be bound by the terms thereof; provided that, following the effectiveness of any such assignment, the other parties to such
assignment agree to execute and deliver such documents necessary to evidence such assignment as reasonably requested by the applicable Lender, provided, further that any such documents shall be without recourse to or warranty by the parties thereto.
Notwithstanding anything in this Section to the contrary, the Lender that acts as the Administrative Agent may not be replaced hereunder except in accordance with the
terms of Section 9.06.
10.14. Governing Law;
Jurisdiction; Etc.
(a) GOVERNING LAW. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT (EXCEPT, AS TO ANY OTHER LOAN DOCUMENT, AS EXPRESSLY SET FORTH THEREIN) AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK; PROVIDED, HOWEVER, THAT (A) FOR THE PURPOSES OF SECTION 4.02(B) AND (C), THE INTERPRETATION OF THE DEFINITION OF “MATERIAL ADVERSE EFFECT” (AND WHETHER OR NOT A “MATERIAL ADVERSE EFFECT” HAS OCCURRED OR WOULD REASONABLY BE EXPECTED TO OCCUR) AS USED IN SUCH
SECTIONS, (B) THE DETERMINATION OF THE ACCURACY OF ANY EONE ACQUISITION AGREEMENT REPRESENTATIONS AND WHETHER AS A RESULT OF ANY INACCURACY OF ANY EONE ACQUISITION AGREEMENT REPRESENTATION THE BORROWER HAS (OR THE BORROWER’S SUBSIDIARY HAS)
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THE RIGHT TO TERMINATE ITS OBLIGATIONS UNDER THE EONE ACQUISITION AGREEMENT AND (C) THE DETERMINATION OF WHETHER THE EONE ACQUISITION HAS BEEN CONSUMMATED IN ACCORDANCE
WITH THE TERMS OF THE EONE ACQUISITION AGREEMENT SHALL, IN EACH CASE, BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE PROVINCE OF ONTARIO AND THE LAWS OF CANADA APPLICABLE THEREIN, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
(b) SUBMISSION TO JURISDICTION. THE COMPANY AND EACH OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT IT WILL NOT COMMENCE ANY ACTION, LITIGATION OR PROCEEDING OF ANY KIND OR DESCRIPTION, WHETHER IN LAW OR EQUITY,
WHETHER IN CONTRACT OR IN TORT OR OTHERWISE, AGAINST THE ADMINISTRATIVE AGENT, ANY LENDER OR ANY RELATED PARTY OF THE FOREGOING IN ANY WAY RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS RELATING HERETO OR THERETO, IN ANY
FORUM OTHER THAN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY SUBMITS TO THE JURISDICTION OF SUCH COURTS AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION, LITIGATION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION, LITIGATION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY
LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT OR ANY LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE
COMPANY OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
(c) WAIVER OF VENUE. THE COMPANY AND EACH OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF THE PARTIES
HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
(d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN
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SECTION 10.02. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
10.15. Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES
HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
10.16. No Advisory or Fiduciary Responsibility. In connection with all aspects of each transaction contemplated hereby, the Borrower acknowledges and agrees, and acknowledges its Affiliates’
understanding, that: (i) the term loan facilities provided for hereunder and any related arranging or other services in connection therewith (including in connection with any amendment, waiver or other modification hereof or of any other Loan
Document) are an arm’s-length commercial transaction between the Borrower and its Affiliates, on the one hand, and the Administrative Agent, the Lead Arrangers and the Lenders, on the other hand, and the Borrower is capable of evaluating and
understanding and understands and accepts the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents (including any amendment, waiver or other modification hereof or thereof); (ii) in connection with the
process leading to such transaction, the Administrative Agent, each Lead Arranger and each Lender is and has been acting solely as a principal and is not the financial advisor, agent or fiduciary, for the Borrower or any of its Affiliates,
stockholders, creditors or employees or any other Person; (iii) neither the Administrative Agent, nor any Lead Arranger nor any Lender has assumed or will assume an advisory, agency or fiduciary responsibility in favor of the Borrower with respect to
any of the transactions contemplated hereby or the process leading thereto, including with respect to any amendment, waiver or other modification hereof or of any other Loan Document (irrespective of whether the Administrative Agent, any Lead
Arranger or any Lender has advised or is currently advising the Borrower or any of its Affiliates on other matters) and neither the Administrative Agent, nor any Lead Arranger nor any Lender has any obligation to the Borrower or its Affiliates with
respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; (iv) the Administrative Agent, the Lead Arrangers the Lenders and their respective Affiliates may be engaged in a
broad range of transactions that involve interests that differ from those of the Borrower and its Affiliates, and neither the Administrative Agent, nor any Lead Arranger nor any Lender has any obligation to disclose any of such interests by virtue of
any advisory, agency or fiduciary relationship; and (v) the Administrative Agent, the Lead Arrangers and the Lenders have not provided and will not provide any legal, accounting, regulatory or tax advice with
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respect to any of the transactions contemplated hereby (including any amendment, waiver or other modification hereof or of any other Loan Document) and the Borrower has
consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate. The Borrower hereby waives and releases, to the fullest extent permitted by law, any claims that it may have with respect to actions taken or
omitted with respect to this Agreement through the Effective Date against the Administrative Agent, the Lead Arrangers and the Lenders with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any
transaction contemplated hereby.
10.17. Electronic Execution of Assignments and Certain Other Documents. The words “execute,” “execution,” “signed,” “signature,” and words of like import in or related to any document to be signed
in connection with this Agreement and the transactions contemplated hereby (including without limitation Assignments and Assumptions, amendments or other modifications, Loan Notices, waivers and consents) shall be deemed to include electronic
signatures, the electronic matching of assignment terms and contract formations on electronic platforms approved by the Administrative Agent, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or
enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce
Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act; provided that
notwithstanding anything contained herein to the contrary neither the Administrative Agent nor any Lender is under any obligation to agree to accept electronic signatures in any form or in any format unless expressly agreed to by the Administrative
Agent or such Lender pursuant to procedures approved by it and provided further without limiting the foregoing, upon the request of any party, any electronic signature
shall be promptly followed by a manually executed counterpart.
10.18. USA PATRIOT Act Notice. Each Lender that is subject to the Act (as hereinafter defined) and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the
Borrower that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”), it is required to obtain,
verify and record information that identifies the Borrower and any Subsidiary Guarantor, which information includes the name and address of the Borrower and any such Subsidiary Guarantor and other information that will allow such Lender or the
Administrative Agent, as applicable, to identify the Borrower or such Subsidiary Guarantor in accordance with the Act. The Borrower shall, promptly following a request by the Administrative Agent or any Lender, provide all documentation and other
information that the Administrative Agent or such Lender requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the Act.
10.19. Judgment Currency. If, for the purposes of obtaining judgment in any court, it is necessary to convert a sum due hereunder or any other Loan Document in one currency into another currency,
the rate of exchange used shall be that at which in accordance with normal banking procedures the Administrative Agent could purchase the first currency with such other currency on the Business Day preceding that on which final judgment is given. The
obligation of the Borrower in respect of any such sum due from it to the Administrative Agent or the Lenders
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hereunder or under the other Loan Documents shall, notwithstanding any judgment in a currency (the “Judgment
Currency”) other than that in which such sum is denominated in accordance with the applicable provisions of this Agreement (the “Agreement Currency”), be
discharged only to the extent that on the Business Day following receipt by the Administrative Agent of any sum adjudged to be so due in the Judgment Currency, the Administrative Agent may in accordance with normal banking procedures purchase the
Agreement Currency with the Judgment Currency. If the amount of the Agreement Currency so purchased is less than the sum originally due to the Administrative Agent from the Borrower in the Agreement Currency, the Borrower agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify the Administrative Agent or the Person to whom such obligation was owing against such loss. If the amount of the Agreement Currency so purchased is greater than the sum originally due to
the Administrative Agent in such currency, the Administrative Agent agrees to return the amount of any excess to the Borrower (or to any other Person who may be entitled thereto under applicable law).
10.20. Acknowledgement and Consent to Bail-In of EEA Financial Institutions. Solely to the extent that any Lender that is an EEA Financial Institution is a party to this Agreement and
notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Lender that is an EEA Financial Institution arising
under any Loan Document, to the extent such liability is unsecured, may be subject to the Write-Down and Conversion Powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a) the application of any Write-Down and Conversion Powers
by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any Lender that is an EEA Financial Institution; and
(b) the effects of any Bail-In Action on any such
liability, including, if applicable:
(i) a reduction in full or in part or cancellation of any such
liability;
(ii) a conversion of all, or a portion of,
such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of
ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or
(iii) the variation of the terms of such
liability in connection with the exercise of the Write-Down and Conversion Powers of any EEA Resolution Authority.
10.21. Acknowledgement Regarding Any Supported QFCs. To the extent that the Loan Documents provide support, through a guarantee or otherwise, for any Swap Contract or any other agreement or
instrument that is a QFC (such support, “QFC Credit Support”, and each such QFC, a “Supported QFC”),
the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act
(together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”)
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in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be
stated to be governed by the Laws of the State of New York and/or of the United States or any other state of the United States):
(a) In the event a Covered Entity that is party to a
Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such
QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same
extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the Laws of the United States or a state
of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported
QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan
Documents were governed by the Laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event
affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.
(b) As used in this Section 10.21, the following terms have the following meanings:
“BHC Act Affiliate” of a party means an “affiliate” (as such term is
defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
“Covered Entity” means any of the following: (i) a “covered entity” as that
term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and
interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right” has the meaning assigned to that term in, and shall be
interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“QFC” has the meaning assigned to the term “qualified financial contract”
in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
[Signature pages omitted]
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Annex B
Form of Loan Notice
[see attached]
EXHIBIT A
FORM OF LOAN NOTICE
Date: _______, _______
To: Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Term Loan Agreement, dated as of September 20, 2019 (as amended, supplemented or otherwise modified in writing from time to time, the “Agreement”; the terms defined therein being used herein as therein defined), among Hasbro, Inc., a Rhode Island corporation (the “Company”), the Lenders from time to time party thereto and Bank of America, N.A., as Administrative Agent.
The Company hereby requests (select one):
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____
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A Borrowing of 5-Year Tranche Loans
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____
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A conversion or continuation of 5-Year Tranche Loans
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1.
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On ____________________________ (a Business Day).
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2.
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In the amount of _________________________.
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3.
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Comprised of _______________________________________.
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[Type of Loan requested]
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4.
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For Term SOFR Loans: with an Interest Period of ____ months.
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HASBRO, INC.
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By:
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Name:
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Title:
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