WMS 8-K
Advanced Drainage Systems, Inc. (WMS)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
(Exact name of Registrant as Specified in Its Charter)
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(IRS Employer Identification No.) |
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Registrant’s Telephone Number, Including Area Code:
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(Former Name or Former Address, if Changed Since Last Report)
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:
| Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| 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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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).
Emerging growth company.
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
| Item 1.01 | Entry into a Material Definitive Agreement. |
Senior Notes Due 2034
On February 27, 2026, Advanced Drainage Systems, Inc. (the “Company”) issued $500.0 million aggregate principal amount of its 5.375% senior notes due 2034 (the “Notes”) pursuant to an Indenture, dated February 27, 2026 (the “Indenture”), among the Company, the guarantors party thereto (as defined below, the “Guarantors”) and U.S. Bank Trust Company, National Association, as Trustee (the “Trustee”). The Notes are guaranteed by each of the Company’s present and future direct and indirect wholly owned domestic subsidiaries that is a guarantor under the Company’s senior secured credit facility. The Notes were offered and sold either to persons reasonably believed to be “qualified institutional buyers” pursuant to Rule 144A under the Securities Act of 1933 (the “Securities Act”) or to persons outside the United States under Regulation S of the Securities Act.
Interest on the Notes will be payable semi-annually in cash in arrears on March 1 and September 1 of each year, commencing on September 1, 2026, at a rate of 5.375% per annum. The Notes will mature on March 1, 2034. The Company intends to use the net proceeds from the offering of the Notes, together with the proceeds of the term loan “B” portion of its existing senior secured credit facility, to refinance the outstanding balance of the Company’s senior secured credit facility and redeem the 5.000% senior notes due 2027 in full, with the balance for general corporate purposes.
The Company may redeem the Notes, in whole or in part, at any time on or after March 1, 2029 at certain specified redemption prices set forth in the Indenture. In addition, at any time prior to March 1, 2029, the Company may redeem the Notes, in whole or in part, at a redemption price equal to 100% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest, if any, to, but excluding, the redemption date plus an applicable “make-whole” premium. At any time prior to March 1, 2029, the Company may also redeem up to 40% of the aggregate principal amount of Notes issued under the Indenture with net cash proceeds of certain equity offerings at a redemption price equal to 105.375% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest, if any, to, but excluding, the redemption date.
The Indenture contains customary events of default, including, among other things, payment default, failure to comply with covenants or agreements contained in the Indenture or the Notes and certain provisions related to bankruptcy events. The Indenture also contains customary negative covenants.
The information contained in this Current Report, including the exhibits hereto, shall not constitute an offer to sell, or a solicitation of an offer to purchase, any Notes in any jurisdiction in which such an offer, solicitation or sale would be unlawful.
The preceding description of the Indenture and the Notes is a summary and is qualified in its entirety by the Indenture and the form of Notes, copies of which are filed as Exhibit 4.1 and Exhibit 4.2 hereto and are incorporated by reference herein.
Fourth Amendment to Credit Agreement
On February 27, 2026, the Company entered into a Fourth Amendment (the “Fourth Amendment”) to the Company’s Credit Agreement dated as of July 31, 2019 (as amended by the First Amendment to Credit Agreement, dated as of September 24, 2019, the Second Amendment to Credit Agreement, dated as of May 26, 2022, the Third Amendment to Credit Agreement, dated as of November 26, 2025 and as further amended, restated, amended and restated, supplemented or otherwise modified prior to the date hereof the “Existing Credit Agreement”, and as amended by the Fourth Amendment, the “Credit Agreement”), with Bank of America, N.A. as administrative agent under the Term Facility, PNC Bank, National Association as administrative agent under the Revolving Facility and as Successor Administrative Agent (as defined in the Fourth Amendment), Barclays Bank PLC, as Predecessor Administrative Agent (as defined in the Fourth Amendment), and the several financial institutions from time to time party thereto as lenders. The obligations of the Company under the Credit Agreement are guaranteed by certain of the Company’s subsidiaries, including Infiltrator Water Technologies, LLC, StormTech LLC and Orenco, Inc. (the “Guarantors”) and the Guarantors secure the obligations thereunder by granting a first priority lien in substantially all of such Guarantor’s assets (subject to certain exceptions and limitations).
Among other things, the Fourth Amendment (i) amends the Existing Credit Agreement by increasing the Revolving Facility from $600 million to $750 million (including an increase of the sub-limit for the letter of credit sub-facility from $50 million to $75 million), (ii) refinances the Term Facility under the Existing Credit Agreement by providing a new Term Facility in the initial principal amount of $600 million with a maturity date of February 28, 2033, (iii) extends the maturity date of the Revolving Facility to February 27, 2031, (iv) revises the “applicable margin”, (1) for the Initial Term Loans, 162.5 basis points (for Term Benchmark based loans) and 62.5 basis points (for base rate loans) and (2) for the Revolving Loans, a range of 125 basis points to 225 basis points (for Term Benchmark based loans) and 25 basis points to 125 basis points (for base rate loans), as determined based on the consolidated senior secured net leverage ratio ranging from less than 1.50 to 1.00 to greater than or equal to 3.50 to 1.00, (v) provides for incremental facilities in the aggregate maximum amount of the greater of $350 million or 100% of consolidated EBITDA for the most recently ended four consecutive fiscal quarters, and (vi) amends certain covenant baskets under the Credit Agreement to align with growth of the Company. The Fourth Amendment also provides that PNC Bank, National Association will become the administrative agent to the Secured Parties as successor to Barclays Bank PLC.
The Fourth Amendment includes customary representations, warranties, covenants and events of default.
Capitalized terms used but not defined herein have the meaning given to such terms in the Credit Agreement. The foregoing description of the Fourth Amendment does not purport to be complete and is qualified in its entirety by reference to the full text of the Fourth Amendment and the Credit Agreement, a copy of which is filed as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated herein by reference.
| Item 2.03 | Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant. |
The information contained in and incorporated into Item 1.01 above is hereby incorporated into this Item 2.03 by reference.
| Item 7.01 | Regulation FD Disclosure. |
On February 27, 2026 (the “Redemption Date”), the Company redeemed in full its outstanding 5.000% Senior Notes due 2027 (the “2027 Notes”) in the original aggregate principal amount of $350,000,000. The 2027 Notes were redeemed at a redemption price equal to 100% of the principal amount of the 2027 Notes plus accrued and unpaid interest, if any, to, but excluding, the Redemption Date.
The information in Item 7.01 on this Current Report on Form 8-K is being furnished pursuant to Item 7.01 of Form 8-K and shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that Section, nor shall any such information or exhibits be deemed incorporated by reference in any filing under the Exchange Act or the Securities Act of 1933, as amended (the “Securities Act”).
| Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits
The following exhibits are being filed as part of this report:
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.
| ADVANCED DRAINAGE SYSTEMS, INC. | ||||||
| Date: February 27, 2026 | By: | /s/ Scott A. Cottrill | ||||
| Name: | Scott A. Cottrill | |||||
| Title: | EVP, CFO & Secretary | |||||
Exhibit 4.1
Execution Version
ADVANCED DRAINAGE SYSTEMS, INC.
as Issuer
THE GUARANTORS NAMED HEREIN
and
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION
as Trustee, Paying Agent and Note Registrar
INDENTURE
Dated as of February 27, 2026
$500,000,000
5.375% Senior Notes due 2034
TABLE OF CONTENTS
| Page | ||||||
| ARTICLE ONE | ||||||
| DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION |
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| SECTION 101. | Rules of Construction |
1 | ||||
| SECTION 102. | Definitions |
2 | ||||
| SECTION 103. | Compliance Certificates and Opinions |
45 | ||||
| SECTION 104. | Form of Documents Delivered to Trustee |
46 | ||||
| SECTION 105. | Acts of Holders |
46 | ||||
| SECTION 106. | Notices, Etc., to Trustee, Issuer, any Guarantor and Agent |
47 | ||||
| SECTION 107. | Notice to Holders; Waiver |
47 | ||||
| SECTION 108. | Effect of Headings and Table of Contents |
48 | ||||
| SECTION 109. | Successors and Assigns |
48 | ||||
| SECTION 110. | Severability Clause |
49 | ||||
| SECTION 111. | Benefits of Indenture |
49 | ||||
| SECTION 112. | Governing Law |
49 | ||||
| SECTION 113. | Legal Holidays |
49 | ||||
| SECTION 114. | No Personal Liability of Directors, Managers, Officers, Employees and Stockholders |
49 | ||||
| SECTION 115. | Counterparts |
49 | ||||
| SECTION 116. | USA PATRIOT Act |
49 | ||||
| SECTION 117. | Waiver of Jury Trial |
50 | ||||
| SECTION 118. | Force Majeure |
50 | ||||
| ARTICLE TWO |
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| NOTE FORMS |
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| SECTION 201. | Form and Dating |
50 | ||||
| SECTION 202. | Execution, Authentication, Delivery and Dating |
50 | ||||
| ARTICLE THREE |
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| THE NOTES |
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| SECTION 301. | Title and Terms |
52 | ||||
| SECTION 302. | Note Registrar, Transfer Agent and Paying Agent |
53 | ||||
| SECTION 303. | Denominations |
54 | ||||
| SECTION 304. | Temporary Notes |
54 | ||||
| SECTION 305. | Registration of Transfer and Exchange |
54 | ||||
| SECTION 306. | Mutilated, Destroyed, Lost and Stolen Notes |
55 | ||||
| SECTION 307. | Payment of Interest; Interest Rights Preserved |
56 | ||||
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| SECTION 308. | Persons Deemed Owners |
57 | ||||
| SECTION 309. | Cancellation |
57 | ||||
| SECTION 310. | Computation of Interest |
58 | ||||
| SECTION 311. | Transfer and Exchange |
58 | ||||
| SECTION 312. | CUSIP, ISIN and Common Code Numbers |
58 | ||||
| SECTION 313. | Issuance of Additional Notes |
59 | ||||
| SECTION 314. | Global Securities |
59 | ||||
| ARTICLE FOUR |
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| SATISFACTION AND DISCHARGE |
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| SECTION 401. | Satisfaction and Discharge of Indenture |
59 | ||||
| SECTION 402. | Application of Trust Money |
60 | ||||
| ARTICLE FIVE |
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| REMEDIES |
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| SECTION 501. | Events of Default |
61 | ||||
| SECTION 502. | Acceleration of Maturity; Rescission and Annulment |
63 | ||||
| SECTION 503. | Collection of Indebtedness and Suits for Enforcement by Trustee |
65 | ||||
| SECTION 504. | Trustee May File Proofs of Claim |
66 | ||||
| SECTION 505. | Trustee May Enforce Claims Without Possession of Notes |
67 | ||||
| SECTION 506. | Application of Money Collected |
67 | ||||
| SECTION 507. | Limitation on Suits |
67 | ||||
| SECTION 508. | Unconditional Right of Holders to Receive Principal, Premium and Interest |
68 | ||||
| SECTION 509. | Restoration of Rights and Remedies |
68 | ||||
| SECTION 510. | Rights and Remedies Cumulative |
68 | ||||
| SECTION 511. | Delay or Omission Not Waiver |
68 | ||||
| SECTION 512. | Control by Holders |
69 | ||||
| SECTION 513. | Waiver of Past Defaults |
69 | ||||
| SECTION 514. | Waiver of Stay or Extension Laws |
69 | ||||
| SECTION 515. | Undertaking for Costs |
70 | ||||
| ARTICLE SIX |
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| THE TRUSTEE |
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| SECTION 601. | Duties of the Trustee |
70 | ||||
| SECTION 602. | Notice of Defaults |
71 | ||||
| SECTION 603. | Certain Rights of Trustee |
71 | ||||
| SECTION 604. | Trustee Not Responsible for Recitals or Issuance of Notes |
73 | ||||
| SECTION 605. | May Hold Notes |
73 | ||||
| SECTION 606. | Money Held in Trust |
73 | ||||
| SECTION 607. | Compensation and Reimbursement |
73 | ||||
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| SECTION 608. | Corporate Trustee Required; Eligibility |
75 | ||||
| SECTION 609. | Resignation and Removal; Appointment of Successor |
75 | ||||
| SECTION 610. | Acceptance of Appointment by Successor |
76 | ||||
| SECTION 611. | Merger, Conversion, Consolidation or Succession to Business |
76 | ||||
| SECTION 612. | Appointment of Authenticating Agent |
77 | ||||
| ARTICLE SEVEN |
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| HOLDERS LISTS AND REPORTS BY TRUSTEE AND ISSUER |
| |||||
| SECTION 701. | Issuer to Furnish Trustee Names and Addresses |
78 | ||||
| SECTION 702. | [Reserved] |
78 | ||||
| ARTICLE EIGHT |
| |||||
| MERGER, CONSOLIDATION OR SALE OF ALL OR SUBSTANTIALLY ALL ASSETS |
| |||||
| SECTION 801. | Issuer May Consolidate, Etc., Only on Certain Terms |
78 | ||||
| SECTION 802. | Guarantors May Consolidate, Etc., Only on Certain Terms |
79 | ||||
| SECTION 803. | Successor Substituted |
80 | ||||
| ARTICLE NINE |
| |||||
| SUPPLEMENTAL INDENTURES |
| |||||
| SECTION 901. | Amendments or Supplements Without Consent of Holders |
80 | ||||
| SECTION 902. | Amendments, Supplements or Waivers with Consent of Holders |
81 | ||||
| SECTION 903. | Execution of Amendments, Supplements or Waivers |
83 | ||||
| SECTION 904. | Effect of Amendments, Supplements or Waivers |
83 | ||||
| SECTION 905. | Reference in Notes to Supplemental Indentures |
83 | ||||
| SECTION 906. | Notice of Supplemental Indentures |
83 | ||||
| ARTICLE TEN |
| |||||
| COVENANTS |
| |||||
| SECTION 1001. | Payment of Principal, Premium, if any, and Interest |
84 | ||||
| SECTION 1002. | Maintenance of Office or Agency |
84 | ||||
| SECTION 1003. | Money for Notes Payments to Be Held in Trust |
84 | ||||
| SECTION 1004. | Statement by Officer as to Default |
85 | ||||
| SECTION 1005. | Reports and Other Information |
86 | ||||
| SECTION 1006. | Limitation on Restricted Payments |
88 | ||||
| SECTION 1007. | Limitation on Incurrence of Indebtedness and Issuance of Disqualified Stock |
97 | ||||
| SECTION 1008. | Liens |
103 | ||||
| SECTION 1009. | Limitations on Transactions with Affiliates |
103 | ||||
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| SECTION 1010. | Limitations on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries |
106 | ||||
| SECTION 1011. | Limitation on Guarantees of Indebtedness by Restricted Subsidiaries |
108 | ||||
| SECTION 1012. | Change of Control |
109 | ||||
| SECTION 1013. | Asset Sales |
111 | ||||
| SECTION 1014. | Suspension of Covenants |
115 | ||||
| SECTION 1015. | Financial Calculations for Limited Condition Acquisitions |
116 | ||||
| ARTICLE ELEVEN |
| |||||
| REDEMPTION OF NOTES |
| |||||
| SECTION 1101. | Right of Redemption |
117 | ||||
| SECTION 1102. | Applicability of Article |
118 | ||||
| SECTION 1103. | Election to Redeem; Notice to Trustee |
118 | ||||
| SECTION 1104. | Selection by Trustee of Notes to Be Redeemed |
118 | ||||
| SECTION 1105. | Notice of Redemption |
119 | ||||
| SECTION 1106. | Deposit of Redemption Price |
120 | ||||
| SECTION 1107. | Notes Payable on Redemption Date |
120 | ||||
| SECTION 1108. | Notes Redeemed in Part |
121 | ||||
| SECTION 1109. | [Reserved] |
121 | ||||
| SECTION 1110. | Mandatory Redemption |
121 | ||||
| ARTICLE TWELVE |
| |||||
| GUARANTEES |
| |||||
| SECTION 1201. | Guarantees |
121 | ||||
| SECTION 1202. | Severability |
123 | ||||
| SECTION 1203. | Restricted Subsidiaries |
123 | ||||
| SECTION 1204. | Limitation of Guarantors’ Liability |
123 | ||||
| SECTION 1205. | Contribution |
124 | ||||
| SECTION 1206. | Subrogation |
124 | ||||
| SECTION 1207. | Reinstatement |
124 | ||||
| SECTION 1208. | Release of a Guarantor |
124 | ||||
| SECTION 1209. | Benefits Acknowledged |
125 | ||||
| ARTICLE THIRTEEN |
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| LEGAL DEFEASANCE AND COVENANT DEFEASANCE |
| |||||
| SECTION 1301. | Issuer’s Option to Effect Legal Defeasance or Covenant Defeasance |
125 | ||||
| SECTION 1302. | Legal Defeasance and Discharge |
125 | ||||
| SECTION 1303. | Covenant Defeasance |
126 | ||||
| SECTION 1304. | Conditions to Legal Defeasance or Covenant Defeasance |
126 | ||||
| SECTION 1305. | Deposited Money and Government Securities To Be Held in Trust Other Miscellaneous Provisions |
128 | ||||
| SECTION 1306. | Reinstatement |
128 | ||||
iv
APPENDIX & EXHIBITS
ANNEX I – Rule 144A / Regulation S / IAI Appendix
EXHIBIT 1 to Rule 144A / Regulation S / IAI Appendix – Form of Initial Note
EXHIBIT 2 to Rule 144A / Regulation S / IAI Appendix – Form of Transferee Letter of Representation
EXHIBIT A – Form of Supplemental Indenture to Be Delivered by Subsequent Guarantors EXHIBIT B – Form of Incumbency Certificate
v
INDENTURE dated as of February 27, 2026 (this “Indenture”), among ADVANCED DRAINAGE SYSTEMS, INC, a Delaware corporation (the “Issuer”), the Guarantors (as defined herein) listed on the signature pages hereto, and U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, a national banking association, as Trustee (the “Trustee” and as Paying Agent and Note Registrar (as defined herein)).
RECITALS OF THE ISSUER
The Issuer has duly authorized the creation of an issue of 5.375% Senior Notes due 2034 issued on the date hereof (the “Initial Notes”) and to provide therefor the Issuer has duly authorized the execution and delivery of this Indenture.
All things necessary have been done to make the Initial Notes, when executed by the Issuer and authenticated and delivered hereunder and duly issued by the Issuer, the valid and legally binding obligations of the Issuer and to make this Indenture a valid and legally binding agreement of the Issuer and the Guarantors, in accordance with their and its terms.
Each of the parties hereto is entering into this Indenture for the benefit of the other parties and for the equal and ratable benefit of the Holders (as defined below) of (i) the Issuer’s Initial Notes and (ii) any Additional Notes (as defined herein) that may be issued from time to time under this Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes by the Holders thereof, it is mutually covenanted and agreed, for the equal and ratable benefit of all Holders, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Rules of Construction.
(a) For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them in this Article, and words in the singular include the plural and words in the plural include the singular;
(2) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with GAAP (as herein defined);
(3) the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision;
(4) all references to Articles, Sections, Exhibits and Appendices shall be construed to refer to Articles and Sections of, and Exhibits and Appendices to, this Indenture;
(5) “or” is not exclusive;
(6) “including” means including without limitation;
(7) all references to the date the Notes were originally issued shall refer to the Issue Date; and
(8) in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws): (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized on the first date of its existence by the holders of its Equity Interests at such time.
(9) unless otherwise provided herein, the words “execute”, “execution”, “signed”, and “signature” and words of similar import used in or related to any document to be signed in connection with this Indenture or any of the transactions contemplated hereby (including amendments, waivers, consents and other modifications) shall be deemed to include electronic signatures and 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 in ink or the use of a paper-based recordkeeping system, as applicable, to the fullest 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, and any other similar state laws based on the Uniform Electronic Transactions Act.
SECTION 102. Definitions.
“Acceptable Commitment” has the meaning specified in Section 1013 of this Indenture.
“ACH” means Automated Clearing House or any successor thereto.
“Acquired Indebtedness” means, with respect to any specified Person,
(1) Indebtedness of any other Person existing at the time such other Person is merged with or into or became a Restricted Subsidiary of such specified Person, including Indebtedness incurred in connection with, or in contemplation of, such other Person merging with or into or becoming a Restricted Subsidiary of such specified Person, and
(2) Indebtedness secured by a Lien encumbering any asset acquired by such specified Person.
2
“Act” when used with respect to any Holder, has the meaning specified in Section 105 of this Indenture.
“Additional Notes” means any Notes issued by the Issuer pursuant to Section 313.
“Adjusted Net Assets” has the meaning specified in Section 1205 of this Indenture.
“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise.
“Affiliate Transaction” has the meaning specified in Section 1009 of this Indenture.
“Agent” means any Note Registrar, Transfer Agent, co-registrar, Paying Agent or other agent appointed in accordance with this Indenture to perform any function that this Indenture authorized such agent to perform.
“Appendix” has the meaning specified in Section 201 of this Indenture.
“Applicable Calculation Date” means the applicable date of calculation for (i) the Consolidated Secured Debt Ratio, (ii) the Consolidated Total Debt Ratio, (iii) the Fixed Charge Coverage Ratio or (iv) EBITDA.
“Applicable Measurement Period” means the most recently ended four fiscal quarters immediately preceding the Applicable Calculation Date for which internal financial statements are available.
“Applicable Premium” means, with respect to any Note on any Redemption Date, the greater of:
(1) 1.0% of the principal amount of such Note; and
(2) the excess, if any, of:
(A) the present value at such Redemption Date of (i) the Redemption Price (such redemption price being set forth in the table appearing in Section 1101) of such Note at March 1, 2029, plus (ii) all required interest payments due on such Note (excluding accrued but unpaid interest to the Redemption Date) through March 1, 2029 computed using a discount rate equal to the Treasury Rate as of such Redemption Date plus 50 basis points; over
(B) the principal amount of such Note.
3
Calculation of the Applicable Premium will be made by the Issuer or on behalf of the Issuer by such Person as the Issuer shall designate; provided that such calculation or the correctness thereof shall not be a duty or obligation of the Trustee.
“Asset Sale” means:
(1) the sale, conveyance, transfer or other disposition, whether in a single transaction or a series of related transactions, of property or assets (including by way of a Sale and Lease-Back Transaction) of the Issuer or any Restricted Subsidiary (each referred to in this definition as a “disposition”), or
(2) the issuance or sale of Equity Interests of any Restricted Subsidiary (other than preferred stock of Restricted Subsidiaries issued in compliance with the covenant described under Section 1007), whether in a single transaction or a series of related transactions, in each case, other than:
(A) any disposition of cash or Cash Equivalents or Investment Grade Securities or, excess, obsolete, damaged, unnecessary, unsuitable or worn out property, equipment or other assets in the ordinary course of business, or any disposition of property or assets in connection with scheduled turnarounds, maintenance and equipment and facility updates or any disposition of any inventory, immaterial assets or goods (or other assets) held for sale or no longer used in the ordinary course of business or any disposition resulting from the liquidation or dissolution of any Restricted Subsidiary that is dormant or no longer used in the Issuer’s ordinary course of business to the extent made ratably in accordance with the relative equity interest held by, or capital accounts of, the owners thereof;
(B) the disposition of all or substantially all of the assets of the Issuer or any Guarantor in a manner not prohibited by Section 801 or any disposition that constitutes a Change of Control pursuant to this Indenture;
(C) the making of any Restricted Payment or Permitted Investment that is permitted to be made, and is made, under Section 1006;
(D) any disposition of property or other assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate Fair Market Value of less than the greater of (x) $100.0 million and (y) 2.500% of Consolidated Total Assets;
(E) any disposition of property or assets or issuance of securities by a Restricted Subsidiary to the Issuer or by the Issuer or a Restricted Subsidiary to another Restricted Subsidiary;
(F) to the extent allowable under Section 1031 of the Internal Revenue Code of 1986, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
4
(G) the lease, assignment, sub-lease, license or sub-license of any real or personal property in the ordinary course of business;
(H) any issuance, sale or pledge of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(I) damage to or destruction of, or any foreclosures, condemnation, eminent domain or any similar action, on assets;
(J) sales or discounts of accounts receivable, or participations therein, in connection with any Receivables Facility;
(K) any financing transaction with respect to property built or acquired by the Issuer or any Restricted Subsidiary after the Issue Date, including Sale and Lease-Back Transactions and asset securitizations permitted by this Indenture;
(L) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or other litigation claims in the ordinary course of business;
(M) the sale, lease, assignment, license, sublease or discount of inventory, equipment, accounts receivable, notes receivable or other current assets in the ordinary course of business or the conversion of accounts receivable to notes receivable or other dispositions of accounts receivable in connection with the collection or compromise thereof;
(N) the licensing or sub-licensing of intellectual property or other general intangibles in the ordinary course of business;
(O) the unwinding of any Hedging Obligations;
(P) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell or put/call arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(Q) the lapse or abandonment of intellectual property rights in the ordinary course of business, which in the reasonable good faith determination of the Issuer are not material to the conduct of the business of the Issuer and its Restricted Subsidiaries taken as a whole;
(R) the issuance of directors’ qualifying shares and shares issued to foreign nationals or other third parties as required by applicable law;
(S) dispositions of assets (including, without limitation, assets of acquired Subsidiaries) after the acquisition thereof (or, as applicable, the acquisition of such acquired Subsidiary) if such assets are not used or useful in the core or principal business of the Issuer and its Restricted Subsidiaries;
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(T) any disposition deemed to occur with creating, granting or perfecting a Lien not otherwise prohibited by this Indenture;
(U) any disposition in connection with Recovery Events; and
(V) the disposition of Capital Stock of the Issuer’s Canadian Subsidiaries from the Issuer to ADS Worldwide Inc.
“Asset Sale Offer” has the meaning specified in Section 1013(c) of this Indenture.
“Bankruptcy Law” means Title 11, United States Bankruptcy Code of 1978, as amended, or any similar United States Federal or state law and the law of any other jurisdiction relating to bankruptcy, insolvency, receivership, winding- up, liquidation, reorganization or relief of debtors or any amendment to, succession to or change in any such law.
“Board of Directors” means, for any Person, the board of directors or other governing body of such Person or, if such Person does not have such a board of directors or other governing body and is owned or managed by a single entity, the board of directors or other governing body of such entity, or, in either case, any committee thereof duly authorized to act on behalf of such board of directors or other governing body.
“Board Resolution” means with respect to the Issuer, a duly adopted resolution of the Board of Directors of the Issuer or any committee of such Board of Directors.
“Business Day” means each day which is not a Legal Holiday.
“Capital Stock” means:
(1) in the case of a corporation, corporate stock,
(2) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock,
(3) in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited), and
(4) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person.
“Cash Equivalents” means:
(1) United States dollars,
(2) Canadian dollars,
(3) (A) euro, pounds sterling or any national currency of any participating member state in the European Union, or
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(B) local currencies held from time to time in the ordinary course of business,
(4) securities issued or directly and fully and unconditionally guaranteed or insured by the United States government, Canada, the Province of Ontario, or any country that is a member state of the European Union or any agency or instrumentality thereof the securities of which are unconditionally guaranteed as a full faith and credit obligation of such government with maturities of 24 months or less from the date of acquisition,
(5) certificates of deposit, time deposits and dollar time deposits with maturities of one year or less from the date of acquisition, bankers’ acceptances with maturities not exceeding one year and overnight bank deposits, in each case, with any commercial bank having capital and surplus of not less than $250.0 million in the case of United States banks and $100.0 million (or the U.S. dollar equivalent as of the date of determination) in the case of foreign banks,
(6) repurchase obligations for underlying securities of the types described in clauses (4) and (5) above, entered into with any financial institution meeting the qualifications specified in clause (5) above,
(7) commercial paper rated at least P-2 by Moody’s or at least A-2 by S&P and in each case maturing within 24 months after the date of creation thereof,
(8) marketable short-term money market and similar securities having a rating of at least P-2 or A-2 from either Moody’s or S&P, respectively (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another Rating Agency) and in each case maturing within 24 months after the date of creation thereof,
(9) investment funds investing 95% of their assets in securities of the types described in clauses (1) through (8) above, and (10) through (14) below,
(10) direct obligations issued by any state, commonwealth or territory of the United States of America or any political subdivision or taxing authority thereof having one of the two highest rating categories obtainable from either Moody’s or S&P with maturities of 24 months or less from the date of acquisition,
(11) Indebtedness or preferred stock issued by Persons with a rating of “A” or higher from S&P or “A2” or higher from Moody’s with maturities of 24 months or less from the date of acquisition,
(12) Investments with average maturities of 24 months or less from the date of acquisition in money market funds rated AAA- (or the equivalent thereof) or better by S&P or Aaa3 (or the equivalent thereof) or better by Moody’s,
(13) in the case of Investments by any Restricted Subsidiary that is a Foreign Subsidiary, Investments of comparable tenor and credit quality to those described in the foregoing clauses (1) through (12) customarily utilized in countries in which such Foreign Subsidiary operates for short term cash management purposes, and
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(14) Indebtedness issued by Persons with a rating of “BBB-” or higher from S&P or “Baa3” or higher from Moody’s with maturities of one year or less from the date of acquisition in an aggregate amount not to exceed $30.0 million at any time.
Notwithstanding the foregoing, Cash Equivalents shall include amounts denominated in currencies other than those set forth in clauses (1) through (3) above; provided that such amounts are converted into any currency listed in clauses (1) through (3) above, as promptly as practicable and in any event within ten Business Days following the receipt of such amounts.
“Cash Management Services” means any of the following to the extent not constituting a line of credit (other than an overnight overdraft facility that is not in default): treasury and/or cash management services, including, without limitation, controlled disbursement services, overdraft facilities, foreign exchange facilities, deposit and other accounts and merchant services.
“Change of Control” means the occurrence of any of the following after the Issue Date:
(1) the sale, lease or transfer, in one or a series of related transactions, of all or substantially all of the assets of the Issuer and its Subsidiaries, taken as a whole, to any Person other than a Permitted Holder in connection with which any Person other than one or more Permitted Holders, is or becomes the beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act, or any successor provision), directly or indirectly, of more than 50% of the total voting power of the Voting Stock of the transferee Person in such sale, lease or transfer of assets, as the case may be, provided that (x) so long as such transferee Person is a Subsidiary of a Permitted Parent, no Person shall be deemed to be or become a beneficial owner of more than 50% of the total voting power of the Voting Stock of such transferee Person unless such Person shall be or become a beneficial owner of more than 50% of the total voting power of the Voting Stock of such Permitted Parent and (y) any Voting Stock of which any Permitted Holder is the beneficial owner shall not in any case be included in the calculation of any Voting Stock of which any such Person first referred to above in this clause (1) is the beneficial owner; or
(2) at any time, the Issuer becomes aware of (by way of a report or any other filing pursuant to Section 13(d) of the Exchange Act, proxy, vote, written notice or otherwise) the acquisition by any Person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act, or any successor provision), including any group acting for the purpose of acquiring, holding or disposing of securities (within the meaning of Rule 13d-5(b)(1) under the Exchange Act, or any successor provision), other than the Permitted Holders, in a single transaction or in a related series of transactions, by way of merger, consolidation or other business combination or purchase of beneficial ownership of 50% or more of the total voting power of the Voting Stock of the Issuer or any direct or indirect parent company of the Issuer; provided that (x) so long as the Issuer is a Subsidiary of a parent company, no Person shall be deemed to be or become a beneficial owner of more than 50% of the total voting power of the Voting Stock of the Issuer unless such Person shall be or become a beneficial owner of
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more than 50% of the total voting power of the Voting Stock of such parent company and (y) any Voting Stock of which any Permitted Holder is the beneficial owner shall not in any case be included in calculating the Voting Stock of which any such Person first referred to above in this clause (2) is the beneficial owner.
“Change of Control Offer” has the meaning specified in Section 1012 of this Indenture.
“Change of Control Payment” has the meaning specified in Section 1012 of this Indenture.
“Change of Control Payment Date” has the meaning specified in Section 1012 of this Indenture.
“Change of Control Triggering Event” means the occurrence of both a Change of Control and a Ratings Event.
“consolidated” or “Consolidated” means, with respect to any Person, such Person on a consolidated basis in accordance with GAAP, but excluding from such consolidation any Unrestricted Subsidiary as if such Unrestricted Subsidiary were not an Affiliate of such Person.
“Consolidated Depreciation and Amortization Expense” means, with respect to any Person for any period, the total amount of depreciation and amortization expense, including the amortization of deferred financing fees or costs, debt issuance costs, commissions, fees and expenses, capitalized expenditures, customer acquisition costs and incentive payments, conversion costs and contract acquisition costs of such Person and its Restricted Subsidiaries for such period on a consolidated basis and otherwise determined in accordance with GAAP.
“Consolidated Interest Expense” means, with respect to any Person for any period, the sum, without duplication, of:
(1) consolidated interest expense of such Person and its Restricted Subsidiaries for such period, to the extent such expense was deducted (and not added back) in computing Consolidated Net Income (including (a) amortization of original issue discount or premium resulting from the issuance of Indebtedness at less than or greater than par, as applicable, (b) all commissions, discounts and other fees and charges owed with respect to letters of credit or bankers acceptances, (c) non-cash interest payments (but excluding any non-cash interest expense attributable to the movement in the mark to market valuation of Indebtedness or derivative instruments pursuant to GAAP), (d) the interest component of Finance Lease Obligations and (e) net payments, if any, pursuant to interest rate Hedging Obligations with respect to Indebtedness, and excluding (f) any one- time cash costs associated with breakage in respect of hedging agreements for interest rates, (g) penalties and interest relating to taxes, (h) accretion or accrual of discounted liabilities not constituting Indebtedness, (i) interest expense attributable to a parent entity resulting from push-down accounting, (j) any expense resulting from the discounting of Indebtedness in connection with the application of recapitalization or purchase accounting, (k) any “additional interest” owing pursuant to a registration rights agreement, (l) amortization of deferred financing fees, debt issuance costs, commissions, fees and expenses, and original issue discount with respect to Indebtedness issued in connection with the Transactions or any intercompany Indebtedness, (m) any expensing of bridge, commitment and other financing fees and (n) commissions, discounts, yield and other fees and charges (including any interest expense) related to any Receivables Facility); plus
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(2) consolidated capitalized interest of such Person and its Restricted Subsidiaries for such period, whether paid or accrued, less
(3) interest income for such period.
For purposes of this definition, interest on a Finance Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by such Person to be the rate of interest implicit in such Finance Lease Obligation in accordance with GAAP.
“Consolidated Net Income” means, with respect to any Person for any period, the aggregate of the Net Income, of such Person and its Restricted Subsidiaries for such period, on a consolidated basis, and otherwise determined in accordance with GAAP; provided that, without duplication,
(1) any after-tax effect of extraordinary, non-recurring or unusual gains or losses (less all fees and expenses relating thereto) or expenses (including relating to the Transactions), severance, relocation costs, curtailments or modifications to pension and post-retirement employee benefits plans, start-up, transition, integration and other restructuring and business optimization costs, charges, reserves or expenses (including related to acquisitions after the Issue Date and to the start-up, closure and/or consolidation of facilities), new product introductions, and one-time compensation charges shall be excluded,
(2) the Net Income for such period shall not include the cumulative effect of a change in accounting principles and changes as a result of adoption or modification of accounting policies during such period,
(3) any net after-tax gains or losses on disposal of disposed, abandoned, transferred, closed or discontinued operations shall be excluded,
(4) any after-tax effect of gains or losses (less all fees and expenses relating thereto) attributable to asset dispositions or abandonments other than in the ordinary course of business, as determined in good faith by the Issuer, shall be excluded,
(5) solely for the purpose of determining the amount available for Restricted Payments under clause (C)(1) of Section 1006(a), the Net Income for such period of any Restricted Subsidiary (other than any Guarantor) shall be excluded to the extent the declaration or payment of dividends or similar distributions by that Restricted Subsidiary of its Net Income is not at the date of determination permitted without any prior governmental approval (which has not been obtained) or, directly or indirectly, by the operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule, or governmental regulation applicable to that Restricted Subsidiary or its stockholders, unless such restriction with respect to the payment of dividends or
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similar distributions has been legally waived; provided that Consolidated Net Income of the Issuer will be increased by the amount of dividends or other distributions or other payments actually paid in cash (or to the extent converted into cash) or Cash Equivalents to the Issuer or a Restricted Subsidiary in respect of such period, to the extent not already included therein,
(6) effects of adjustments (including the effects of such adjustments pushed down to the Issuer and its Restricted Subsidiaries) in any line item in such Person’s consolidated financial statements in accordance with GAAP resulting from the application of purchase accounting, including in relation to the Transactions, or the amortization or write-off of any amounts thereof, net of taxes, shall be excluded,
(7) (i) any after-tax effect of income (loss) from the early extinguishment of Indebtedness or Hedging Obligations or other derivative instruments (including deferred financing costs written off and premiums paid), (ii) any non-cash income (or loss) related to currency gains or losses related to Indebtedness, intercompany balances and other balance sheet items and to Hedging Obligations pursuant to Financial Accounting Standards Codification No. 815—Derivatives and Hedging (formerly Financing Accounting Standards Board Statement No. 133) and its related pronouncements and interpretations (or any successor provision) and (iii) any non-cash expense, income or loss attributable to the movement in mark-to-market valuation of foreign currencies, Indebtedness or derivative instruments pursuant to GAAP, shall be excluded,
(8) any impairment charge, asset write-off or write-down in each case pursuant to GAAP shall be excluded,
(9) (i) any non-cash compensation expense recorded from grants of stock appreciation or similar rights, phantom equity, stock options, restricted stock, units or other rights to officers, directors, managers or employees and (ii) non-cash income (loss) attributable to deferred compensation plans or trusts, shall be excluded,
(10) any fees and expenses incurred during such period, or any amortization thereof for such period, in connection with any acquisition, Investment, recapitalization, Asset Sale, issuance or repayment of Indebtedness (including, without limitation, the Notes), issuance of Equity Interests, refinancing transaction or amendment or modification of any debt instrument (in each case, including any such transaction consummated prior to the Issue Date and any such transaction undertaken but not completed) and any charges or non-recurring merger costs incurred during such period as a result of any such transaction shall be excluded,
(11) accruals and reserves, contingent liabilities and any gains or losses on the settlement of any pre-existing contractual or non-contractual relationships that are established or adjusted within twelve months after the Issue Date that are so required to be established as a result of the Transactions in accordance with GAAP shall be excluded,
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(12) to the extent covered by insurance or indemnification and actually reimbursed, or, so long as the Issuer has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed by the insurer or indemnifying party and only to the extent that such amount is (a) not denied by the applicable carrier or indemnifying party in writing within 180 days and (b) in fact reimbursed within 365 days of the date of such evidence (with a deduction for any amount so added back to the extent not so reimbursed within 365 days), losses and expenses with respect to liability or casualty events or business interruption shall be excluded,
(13) any deferred tax expense associated with tax deductions or net operating losses arising as a result of the Transactions, or the release of any valuation allowance related to such item, shall be excluded,
(14) the amount of any restructuring charges or reserve (including those relating to severance, relocation costs and one-time compensation charges), any charges, costs, fees and expenses realized upon the termination or cancellation of leases, software licenses or other contracts in connection with the operational restructuring and business improvement efforts of the Issuer and its Restricted Subsidiaries shall be excluded, and
(15) any costs, fees and expenses associated with the cost reduction, operational restructuring and business improvement efforts of any consulting firm engaged by the Issuer or its Restricted Subsidiaries to perform such service shall be excluded.
Notwithstanding the foregoing, for the purpose of Section 1006 only (other than clause (C)(4) of Section 1006(a)), there shall be excluded from Consolidated Net Income any income arising from any sale or other disposition of Restricted Investments made by the Issuer and the Restricted Subsidiaries, any repurchases and redemptions of Restricted Investments from the Issuer and the Restricted Subsidiaries, any repayments of loans and advances which constitute Restricted Investments by the Issuer or any Restricted Subsidiary, any sale of the stock of an Unrestricted Subsidiary or any distribution or dividend from an Unrestricted Subsidiary, in each case only to the extent such amounts increase the amount of Restricted Payments permitted under such covenant pursuant to clause (C)(4) of Section 1006(a).
“Consolidated Secured Debt Ratio” means, as of any date of determination, the ratio of (1) Consolidated Total Secured Indebtedness minus cash and Cash Equivalents of the Issuer and the Guarantors, in each case, as of the Applicable Calculation Date to (2) EBITDA of the Issuer for the Applicable Measurement Period, with such pro forma adjustments to Consolidated Total Secured Indebtedness, cash and Cash Equivalents and EBITDA as are appropriate and consistent with the pro forma adjustment provisions set forth in the definition of “Fixed Charge Coverage Ratio.”
“Consolidated Total Assets” means as of any date, the total assets of the Issuer and its Restricted Subsidiaries, determined in accordance with GAAP, as set forth on the consolidated balance sheet of the Issuer as of such date.
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“Consolidated Total Debt Ratio” means, as of any date of determination, the ratio of (1) Consolidated Total Indebtedness minus cash and Cash Equivalents of the Issuer and its Restricted Subsidiaries, in each case, as of the Applicable Calculation Date to (2) EBITDA of the Issuer for the Applicable Measurement Period, with such pro forma adjustments to Consolidated Total Indebtedness, cash and Cash Equivalents and EBITDA as are appropriate and consistent with the pro forma adjustment provisions set forth in the definition of “Fixed Charge Coverage Ratio,” other than as set forth in the provisos to the first paragraph thereof.
“Consolidated Total Indebtedness” means, as at any date of determination, an amount equal to the sum of (1) the aggregate amount of all outstanding Indebtedness of the Issuer and its Restricted Subsidiaries on a consolidated basis consisting of Indebtedness for borrowed money, Obligations in respect of Finance Lease Obligations and debt obligations evidenced by promissory notes and similar instruments (and excluding, for the avoidance of doubt, Hedging Obligations) and (2) the aggregate amount of all outstanding Disqualified Stock of the Issuer and all preferred stock of the Restricted Subsidiaries, with the amount of such Disqualified Stock and preferred stock equal to the greater of their respective voluntary or involuntary liquidation preferences and their Maximum Fixed Repurchase Prices, in each case in (1) and (2) above, determined on a consolidated basis in accordance with GAAP.
For purposes hereof, the “Maximum Fixed Repurchase Price” of any Disqualified Stock or preferred stock means the price at which such Disqualified Stock or preferred stock could be redeemed or repurchased by the issuer thereof in accordance with its terms or, if such Disqualified Stock or preferred stock cannot be so redeemed or repurchased, the Fair Market Value of such Disqualified Stock or preferred stock, in each case, determined on any date on which Consolidated Total Indebtedness shall be required to be determined.
“Consolidated Total Secured Indebtedness” means, as at any date of determination, the amount of Consolidated Total Indebtedness that is Secured Indebtedness as of such date.
“Contingent Obligations” means, with respect to any Person, any obligation of such Person guaranteeing any leases, dividends or other obligations that do not constitute Indebtedness (“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including, without limitation, any obligation of such Person, whether or not contingent,
(1) to purchase any such primary obligation or any property constituting direct or indirect security therefor,
(2) to advance or supply funds:
(A) for the purchase or payment of any such primary obligation, or
(B) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, or
(3) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation against loss in respect thereof.
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“Corporate Trust Office” means the corporate trust office of the Trustee, at which at any particular time its corporate trust business in relation to this Indenture shall be administered, which office at the date of execution of this Indenture is located at U.S. Bank Trust Company, National Association, 425 Walnut Street, 6th Floor Cincinnati, Ohio 45202, Attention: Global Corporate Trust Services, except that with respect to presentation of the Notes for payment or for registration of transfer or exchange, such term shall mean the office or agency of the Trustee which, at any particular time, its corporate agency business in relation to this Indenture shall be conducted, which office at the date of execution of this Indenture is located at U.S. Bank Trust Company, National Association, 111 Fillmore Ave E, St. Paul, MN 55107, Attention: Global Trust Services.
“Covenant Defeasance” has the meaning specified in Section 1303 of this Indenture.
“Covenant Suspension Event” has the meaning specified in Section 1014(a) of this Indenture.
“Credit Facilities” means, with respect to the Issuer or any Restricted Subsidiary, one or more debt facilities, including the Senior Credit Facility, or other financing arrangements (including, without limitation, commercial paper facilities with banks or other institutional lenders or investors or indentures) providing for revolving credit loans, term loans, letters of credit or other long-term indebtedness, including any notes, mortgages, guarantees, collateral documents, instruments and agreements executed in connection therewith, and any amendments, supplements, modifications, extensions, renewals, restatements or refundings thereof and any indentures or credit facilities or commercial paper facilities with banks or other institutional lenders or investors that Refinance any part of the loans, notes or other securities, other credit facilities or commitments thereunder, including any such Refinancing facility or indenture that increases the amount permitted to be borrowed thereunder or alters the maturity thereof (provided that such increase in borrowings is permitted under Section 1007) or adds Restricted Subsidiaries as additional borrowers or guarantors thereunder and whether by the same or any other agent, lender or group of lenders.
“Default” means any event that is, or with the passage of time or the giving of notice or both would be, an Event of Default.
“Defaulted Interest” has the meaning specified in Section 307(b) of this Indenture.
“Depository” means The Depository Trust Company, its nominees and their respective successors.
“Default Direction” has the meaning set forth under Section 502(b) of this Indenture.
“Derivative Instrument” with respect to a Person, means any contract, instrument or other right to receive payment or delivery of cash or other assets to which such Person or any Affiliate of such Person that is acting in concert with such Person in connection with such Person’s investment in the notes (other than a Screened Affiliate) is a party (whether or not requiring further performance by such Person), the value and/or cash flows of which (or any material portion thereof) are materially affected by the Performance References.
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“Designated Non-cash Consideration” means the Fair Market Value of non-cash consideration received by the Issuer or a Restricted Subsidiary in connection with an Asset Sale that is so designated as Designated Non-cash Consideration pursuant to an Officer’s Certificate, setting forth the basis of such valuation, executed by the principal financial officer of the Issuer, less the amount of cash or Cash Equivalents received in connection with a subsequent sale of or collection on such Designated Non-cash Consideration.
“Designated Preferred Stock” means preferred stock of the Issuer, any Restricted Subsidiary or any direct or indirect parent company of the Issuer (in each case other than Disqualified Stock) that is issued for cash (other than to a Restricted Subsidiary or an employee stock ownership plan or trust established by the Issuer or any of its Subsidiaries) and is so designated as Designated Preferred Stock, pursuant to an Officer’s Certificate executed by the principal financial officer of the Issuer or such parent company thereof, as the case may be, on the issuance date thereof, the cash proceeds of which are excluded from the calculation set forth in clause (C) of Section 1006(a).
“Directing Holder” has the meaning set forth under Section 502(b) of this Indenture.
“Disqualified Stock” means, with respect to any Person, any Capital Stock of such Person which, by its terms, or by the terms of any security into which it is convertible or for which it is putable or exchangeable, or upon the happening of any event, matures or is mandatorily redeemable, other than as a result of a change of control, asset sale or casualty or condemnation event, pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof, other than as a result of a change of control, asset sale, casualty or condemnation event in whole or in part, in each case, prior to the date 91 days after the earlier of the maturity date of the Notes or the date the Notes are no longer outstanding; provided, that if such Capital Stock is issued to any plan for the benefit of employees of the Issuer or its Subsidiaries or by any such plan to such employees, such Capital Stock shall not constitute Disqualified Stock solely because it may be required to be repurchased by the Issuer or its Subsidiaries in order to satisfy applicable statutory or regulatory obligations.
“Domestic Subsidiary” means, with respect to any Person, any Restricted Subsidiary of such Person other than a Foreign Subsidiary.
“EBITDA” means, with respect to any Person for any period, the Consolidated Net Income of such Person for such period
(1) increased (without duplication) by:
(A) provision for taxes based on income or profits or capital gains, including, without limitation, U.S. Federal, state, non-U.S., franchise, excise, value added and similar taxes and foreign withholding taxes of such Person paid or accrued during such period, including any penalties and interest relating to such taxes or arising from any tax examinations deducted (and not added back) in computing Consolidated Net Income, plus
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(B) Fixed Charges of such Person for such period (including (x) net losses on Hedging Obligations or other derivative instruments entered into for the purpose of hedging interest rate risk and (y) costs of surety bonds in connection with financing activities, in each case, to the extent included in Fixed Charges), together with items excluded from the definition of “Consolidated Interest Expense” pursuant to clauses 1(f) through 1(n) thereof, to the extent the same were deducted (and not added back) in calculating such Consolidated Net Income, plus
(C) Consolidated Depreciation and Amortization Expense of such Person for such period to the extent the same were deducted (and not added back) in computing Consolidated Net Income, plus
(D) any fees, expenses, charges or losses (other than depreciation or amortization expense) related to any Equity Offering, Permitted Investment, acquisition, disposition, recapitalization or the incurrence of Indebtedness permitted to be incurred by this Indenture (including a refinancing thereof) (whether or not successful), including (i) such fees, expenses or charges related to the Transactions and (ii) any amendments or other modification of the Notes, the Senior Credit Facility or other Indebtedness and, in each case, deducted (and not added back) in computing Consolidated Net Income, plus
(E) any other non-cash charges, including any write offs, write downs, expenses, losses or items to the extent the same were deducted (and not added back) in computing Consolidated Net Income (provided that if any such non-cash charges represent an accrual or reserve for potential cash items in any future period, the cash payment in respect thereof in such future period shall be deducted from EBITDA to such extent, and excluding amortization of a prepaid cash item that was paid in a prior period), plus
(F) the amount of any minority interest expense consisting of net income attributable to non-controlling interests of third parties in any non-Wholly Owned Subsidiary deducted (and not added back) in such period in calculating Consolidated Net Income, plus
(G) [reserved], plus
(H) costs of surety bonds incurred in such period in connection with financing activities, plus
(I) the amount of net cost savings, operating expense reductions, operating improvements and initiatives and synergies projected by the Issuer in good faith to be realized as a result of specified actions taken or to be taken (which cost savings or synergies shall be calculated on a pro forma basis as though such cost savings, operating expense reductions or synergies had been realized on the first day of such period), net of the amount of actual benefits realized during such period from such actions; provided that (A) such cost savings, operating expense reductions or synergies are reasonably identifiable and factually supportable and (B) such actions have been taken or are to be taken within 24 months after the date of determination to take such action, plus
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(J) the amount of loss or discount on sales of receivables and related assets to the Receivables Subsidiary in connection with a Receivables Facility, plus
(K) any costs or expense incurred by the Issuer or a Restricted Subsidiary pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement or any stock subscription or shareholder agreement, to the extent that such cost or expenses are funded with cash proceeds contributed to the capital of the Issuer or net cash proceeds of an issuance of Equity Interest of the Issuer (other than Disqualified Stock) solely to the extent that such net cash proceeds are excluded from the calculation set forth in clause (C) of Section 1006(a); and have not been relied on for purposes of any incurrence of Indebtedness pursuant to clause (12)(A) of Section 1007(b), plus
(L) [reserved]
(M) with respect to any joint venture that is not a Restricted Subsidiary, an amount equal to the proportion of those items described in clauses (A) and (C) above relating to such joint venture corresponding to the Issuer’s and the Restricted Subsidiaries’ proportionate share of such joint venture’s Consolidated Net Income (determined as if such joint venture were a Restricted Subsidiary), plus
(N) [reserved], plus
(O) cash receipts (or any netting arrangements resulting in reduced cash expenses) not included in EBITDA in any period to the extent non-cash gains relating to such receipts were deducted in the calculation of EBITDA pursuant to paragraph (2) below for any previous period and not added back, plus
(P) any non-cash loss, charge, or expense relating to the incurrence of obligations in respect of any “earn out” or other similar contingent obligations, but only for so long as such loss, charge or expense remains a non-cash contingent obligation, and
(2) decreased by (without duplication) non-cash gains increasing Consolidated Net Income of such Person for such period, excluding any non-cash gains which represent the reversal of any accrual of, or cash reserve for, anticipated cash charges that reduced EBITDA in any prior period; provided that, to the extent non-cash gains are deducted pursuant to this clause (2) for any previous period and not otherwise added back to EBITDA, EBITDA shall be increased by the amount of any cash receipts (or any netting arrangements resulting in reduced cash expenses) in respect of such non-cash gains received in subsequent periods to the extent not already included therein, and
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(3) increased or decreased by (without duplication):
(A) any net gain or loss resulting in such period from currency gains or losses related to Indebtedness, intercompany balances and other balance sheet items, plus or minus, as the case may be, and
(B) any net gain or loss resulting in such period from Hedging Obligations, and the application of Financial Accounting Standards Codification No. 815— Derivatives and Hedging (formerly Financing Accounting Standards Board Statement No. 133), and its related pronouncements and interpretations (or any successor provision).
“Equity Interests” means Capital Stock and all warrants, options or other rights, including, without limitation, restricted stock, restricted stock units or performance units to acquire Capital Stock, but excluding any debt security that is convertible into, or exchangeable for, Capital Stock.
“Equity Offering” means any public or private sale of common stock or preferred stock of the Issuer or any direct or indirect parent company of the Issuer (excluding Disqualified Stock), other than:
(1) public offerings with respect to the Issuer’s or any of its direct or indirect parent company’s common stock registered on Form S-4 or Form S-8;
(2) issuances to any Subsidiary of the Issuer; and
(3) any such public or private sale that constitutes an Excluded Contribution.
“euro” means the single currency of participating member states of the Economic and Monetary Union of the European Union.
“Event of Default” has the meaning specified in Section 501 of this Indenture.
“Excess Proceeds” has the meaning specified in Section 1013(c) of this Indenture.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder.
“Excluded Contribution” means net cash proceeds, the Fair Market Value of marketable securities or the Fair Market Value of Qualified Proceeds received by the Issuer from:
(1) contributions to its common equity capital, and
(2) the sale (other than to a Subsidiary of the Issuer or to any management equity plan or stock option plan or any other management or employee benefit plan or agreement of the Issuer) of Capital Stock (other than Disqualified Stock and Designated Preferred Stock) of the Issuer,
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in each case designated as Excluded Contributions pursuant to an Officer’s Certificate of the Issuer on the date such capital contributions are made or the date such Equity Interests are sold, as the case may be, which are excluded from the calculation set forth in clause (C) of Section 1006(a) and clause (12)(A) of Section 1007(b).
“Existing Indebtedness” means Indebtedness of the Issuer or any Restricted Subsidiary in existence on the Issue Date, plus interest accruing (or the accretion of discount) thereon.
“Fair Market Value” means, with respect to any Investment, asset or property, the fair market value of such Investment, asset or property, determined in good faith by senior management or the Board of Directors of the Issuer, whose determination will be conclusive for all purposes under this Indenture and the Notes.
“Finance Lease Obligation” means, at the time any determination thereof is to be made, the amount of the liability in respect of a finance lease that would at such time be required to be capitalized and reflected as a liability on a balance sheet (excluding the footnotes thereto) in accordance with GAAP; provided, however, that for purposes of determining whether a finance lease is required to be capitalized and reflected as a liability on a balance sheet (excluding the footnotes thereto), such determination will be made in a manner consistent with their treatment under GAAP as reflected in the audited financial statements of the Issuer and its consolidated Subsidiaries for the fiscal year ended March 31, 2025, notwithstanding any modifications or interpretive changes thereto that may have occurred thereafter or may occur hereafter and all lease liabilities and right of use assets in each case related to operating leases shall be excluded from all calculations made under this Indenture The amount of Indebtedness represented by such obligation will be the capitalized amount of such obligation at the time any determination thereof is to be made as determined in accordance with GAAP, and the stated maturity thereof will be the date of the last payment of rent or any other amount due under such lease prior to the first date such lease may be terminated without penalty.
“Fixed Charge Coverage Ratio” means, with respect to any Person as of any Applicable Calculation Date, the ratio of (1) EBITDA of such Person for the Applicable Measurement Period to (2) the Fixed Charges of such Person for such Applicable Measurement Period. In the event that the Issuer or any Restricted Subsidiary incurs, assumes, guarantees, redeems, retires or extinguishes any Indebtedness or issues or redeems Disqualified Stock or preferred stock subsequent to the commencement of the Applicable Measurement Period but on or prior to the Applicable Calculation Date, then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect to such incurrence, assumption, guarantee, redemption, retirement or extinguishment of Indebtedness, or such issuance or redemption of Disqualified Stock or preferred stock (in each case, including a pro forma application of the net proceeds therefrom), as if the same had occurred at the beginning of the Applicable Measurement Period; provided, however, that the pro forma calculation shall not give effect to any Indebtedness incurred on such determination date pursuant to the provisions described in Section 1007(b) (other than Indebtedness incurred pursuant to Section 1007(b)(14)); provided further that, for purposes of the calculation of the Fixed Charge Coverage Ratio, in connection with the incurrence of any Indebtedness pursuant to Section 1007(a) the Issuer may elect, pursuant to an Officer’s Certificate delivered to the Trustee, to treat all or any portion of the commitment under any Indebtedness which is to be incurred, as being incurred as of the Applicable Calculation Date and any subsequent incurrence of Indebtedness under such commitment that was so treated shall not be deemed, for purposes of this calculation, to be an incurrence of additional Indebtedness.
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For purposes of calculating the Fixed Charge Coverage Ratio, Investments, acquisitions, dispositions, mergers, consolidations and disposed operations (as determined in accordance with GAAP) that have been made by the Issuer or any Restricted Subsidiary during the Applicable Measurement Period or subsequent to such Applicable Measurement Period and on or prior to or simultaneously with the Applicable Calculation Date shall be calculated on a pro forma basis assuming that all such Investments, acquisitions, dispositions, mergers, consolidations and disposed operations (and the change in any associated fixed charge obligations and the change in EBITDA resulting therefrom) had occurred on the first day of the Applicable Measurement Period. If since the beginning of such period any Person (that subsequently became a Restricted Subsidiary or was merged with or into the Issuer or any Restricted Subsidiary since the beginning of such period) shall have made any Investment, acquisition, disposition, merger, consolidation or disposed operation that would have required adjustment pursuant to this definition, then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect thereto for such Applicable Measurement Period as if such Investment, acquisition, disposition, merger, consolidation or disposed operation had occurred at the beginning of the Applicable Measurement Period.
For purposes of this definition, whenever pro forma effect is to be given to a transaction, the pro forma calculations shall be made in good faith by a responsible financial or accounting officer of the Issuer (and may include, for the avoidance of doubt and without duplication, cost savings and operating expense reductions resulting from such Investment, acquisition, merger or consolidation which is being given pro forma effect that have been or are expected to be realized). If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the Applicable Calculation Date had been the applicable rate for the entire period (taking into account for such entire period, any Hedging Obligation applicable to such Indebtedness with a remaining term of 12 months or longer, and in the case of any Hedging Obligation applicable to such Indebtedness with a remaining term of less than 12 months, taking into account such Hedging Obligation to the extent of its remaining term). Interest on a Finance Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Issuer to be the rate of interest implicit in such Finance Lease Obligation in accordance with GAAP. For purposes of making the computation referred to above, interest on any Indebtedness under revolving credit facilities computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period; or, if lower, the maximum commitments under such revolving credit facilities as of the Applicable Calculation Date. Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Issuer may designate.
“Fixed Charges” means, with respect to any Person for any period, the sum of:
(1) Consolidated Interest Expense of such Person for such period,
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(2) all cash dividend payments (excluding items eliminated in consolidation) on any series of preferred stock (including any Designated Preferred Stock) or any Refunding Capital Stock of such Person made during such period, and
(3) all cash dividend payments (excluding items eliminated in consolidation) on any series of Disqualified Stock made during such period.
“Foreign Subsidiary” means any Restricted Subsidiary of the Issuer that is not organized or existing under the laws of the United States, any state thereof or the District of Columbia, or that is a Foreign Subsidiary Holdco.
“Foreign Subsidiary Holdco” means any Domestic Subsidiary that (a) has no material assets other than equity (or equity and other securities) of one or more Foreign Subsidiaries and other assets relating to the ownership interest in any such securities and (b) has no Guarantee Obligations in respect of any Indebtedness of the Borrower or any Domestic Subsidiary.1
“Funding Guarantor” has the meaning specified in Section 1205 of this Indenture.
“GAAP” means generally accepted accounting principles in the United States which are in effect from time to time (other than with respect to Finance Lease Obligations). At any time after the Issue Date, the Issuer may elect to apply International Financial Reporting Standards (“IFRS”) accounting principles in lieu of GAAP and, upon any such election, references herein to GAAP and GAAP concepts shall thereafter be construed to refer to IFRS and corresponding IFRS concepts (except as otherwise provided in this Indenture); provided that any such election, once made, shall be irrevocable; provided, further, any calculation or determination in this Indenture that requires the application of GAAP for periods that include fiscal quarters ended prior to the Issuer’s election to apply IFRS shall remain as previously calculated or determined in accordance with GAAP. The Issuer shall give written notice of any such election made in accordance with this definition to the Trustee and the Holders. For the avoidance of doubt, solely making an election (without any other action) referred to in this definition will not be treated as an incurrence of Indebtedness.
“Government Securities” means direct obligations of, or obligations guaranteed by, the United States, Canada, the Province of Ontario, a member state of the European Union or any agency or instrumentality thereof, and the payment for which such government pledges its full faith and credit, and shall also include a depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act), as custodian with respect to any such Government Securities or a specific payment of principal or interest on any such Government Securities held by such custodian for the account of the holder of such depositary receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the Government Securities or the specific payment of principal of or interest on the Government Securities evidenced by such depositary receipt.
| 1 | Note to Squire: We deleted from the Indenture as this is a disclosure item for the OM/DoN. |
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“guarantee” means a guarantee (other than by endorsement of negotiable instruments for collection in the ordinary course of business), direct or indirect, in any manner (including letters of credit and reimbursement agreements in respect thereof), of all or any part of any Indebtedness or other obligations.
“Guarantee” means the guarantee by any Guarantor of the Issuer’s Obligations under this Indenture.
“Guarantor” means each Restricted Subsidiary that guarantees the Notes under this Indenture.
“Hedging Obligations” means, with respect to any Person, the obligations of such Person under any interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, commodity swap agreement, commodity cap agreement, commodity collar agreement, foreign exchange contract, currency swap agreement or similar agreement or arrangement providing for the transfer or mitigation of interest rate, commodity price or currency risks either generally or under specific contingencies.
“Holder” means a holder of the Notes.
“incur” has the meaning specified in Section 1007 of this Indenture.
“incurrence” has the meaning specified in Section 1007 of this Indenture.
“Indebtedness” means, with respect to any Person,
(1) any indebtedness (including principal and premium) of such Person, whether or not contingent:
| (A) | in respect of borrowed money, |
| (B) | evidenced by bonds, notes, debentures or similar instruments or letters of credit or bankers’ acceptances (or, without double counting, reimbursement agreements in respect thereof), |
| (C) | representing the balance, deferred and unpaid, of the purchase price of any property (including Finance Lease Obligations), except (i) any such balance that constitutes a trade payable or similar obligation to a trade creditor, in each case accrued in the ordinary course of business and (ii) any earn-out obligation until such obligation, after 60 days of becoming due and payable, has not been paid and is reflected as a liability on the balance sheet of such Person in accordance with GAAP, or |
| (D) | representing any Hedging Obligations, |
if and to the extent that any of the foregoing Indebtedness would appear as a liability upon a balance sheet (excluding the footnotes thereto) of such Person prepared in accordance with GAAP; provided that Indebtedness of any direct or indirect parent company appearing upon the balance sheet of the Issuer solely by reason of push down accounting under GAAP shall be excluded,
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(2) to the extent not otherwise included, any obligation by such Person to be liable for, or to pay, as obligor, guarantor or otherwise, on the obligations of the type referred to in clause (1) of another Person (whether or not such items would appear upon the balance sheet of such obligor or guarantor), other than by endorsement of negotiable instruments for collection in the ordinary course of business, and
(3) to the extent not otherwise included, the obligations of the type referred to in clause (1) of another Person secured by a Lien on any assets owned by such Person, whether or not such Indebtedness is assumed by such Person; provided, however, that the amount of such Indebtedness will be the lesser of: (a) the Fair Market Value of such assets at such date of determination, and (b) the amount of such Indebtedness of such other Person;
provided that notwithstanding the foregoing, Indebtedness shall be deemed not to include (A) Contingent Obligations incurred in the ordinary course of business or (B) obligations under or in respect of Receivables Facilities.
“Indenture” means this instrument as originally executed and as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, including, for all purposes of this Indenture and any such supplemental indenture.
“Independent Financial Advisor” means an accounting, appraisal, investment banking firm or consultant to Persons engaged in Similar Businesses of nationally recognized standing that is, in the good faith judgment of the Issuer, qualified to perform the task for which it has been engaged.
“Initial Notes” has the meaning set forth in the first recital of this Indenture.
“Initial Purchasers” means Morgan Stanley & Co. LLC, BofA Securities, Inc., Barclays Capital Inc., PNC Capital Markets LLC, Fifth Third Securities, Inc., BMO Capital Markets Corp., HSBC Securities (USA) Inc., UBS Securities LLC, Robert W. Baird & Co. Incorporated and Loop Capital Markets LLC.
“Interest Payment Date” means the Stated Maturity of an installment of interest on the Notes.
“Investment Grade Rating” means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P, or an equivalent rating by any other Rating Agency.
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“Investment Grade Securities” means:
(1) securities issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality thereof (other than Cash Equivalents),
(2) debt securities or debt instruments with an Investment Grade Rating, but excluding any debt securities or instruments constituting loans or advances among the Issuer and its Subsidiaries,
(3) investments in any fund that invests exclusively in investments of the type described in clauses (1) and (2) above, which fund may also hold immaterial amounts of cash pending investment or distribution, and
(4) corresponding instruments in countries other than the United States customarily utilized for high-quality investments.
“Investments” means, with respect to any Person, all investments by such Person in other Persons (including Affiliates) in the form of loans (including guarantees), advances or capital contributions (excluding accounts receivable, trade credit, advances to customers, commission, travel and similar advances to officers and employees, in each case made in the ordinary course of business), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities issued by any other Person and investments that are required by GAAP to be classified on the balance sheet (excluding the footnotes) of such Person in the same manner as the other investments included in this definition to the extent such transactions involve the transfer of cash or other property. For purposes of the definition of “Unrestricted Subsidiary” and Section 1006:
(1) “Investments” shall include the portion (proportionate to the Issuer’s Equity Interest in such Subsidiary) of the Fair Market Value of the net assets of a Subsidiary of the Issuer at the time that such Subsidiary is designated an Unrestricted Subsidiary; provided that upon a re-designation of such Subsidiary as a Restricted Subsidiary, the Issuer shall be deemed to continue to have a permanent “Investment” in an Unrestricted Subsidiary in an amount (if positive) equal to:
(A) the Issuer’s “Investment” in such Subsidiary at the time of such re-designation less
(B) the portion (proportionate to the Issuer’s Equity Interest in such Subsidiary) of the Fair Market Value of the net assets of such Subsidiary at the time of such re-designation; and
(2) any property transferred to or from an Unrestricted Subsidiary shall be valued at its Fair Market Value at the time of such transfer.
The amount of any Investment outstanding at any time shall be the original cost of such Investment, reduced by any dividend, distribution, interest payment, return of capital, repayment or other amount received in cash by the Issuer or a Restricted Subsidiary in respect of such Investment. For the avoidance of doubt, the term “Investment” shall not include reimbursement or other obligations with respect to unmatured or undrawn, as applicable, Performance Guarantees.
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“Issue Date” means February 27, 2026.
“Issuer” has the meaning set forth in the preamble hereto.
“Issuer Request” or “Issuer Order” means a written request or order signed in the name of the Issuer by two Officers or one Officer and either an Assistant Treasurer or an Assistant Secretary of the Issuer, and delivered to the Trustee.
“LCT Election” has the meaning set forth in Section 1015(a) of this Indenture.
“LCT Public Offer” has the meaning set forth in Section 1015(a) of this Indenture.
“LCT Test Date” has the meaning set forth in Section 1015(a) of this Indenture.
“Legal Defeasance” has the meaning specified in Section 1302 of this Indenture.
“Legal Holiday” means a Saturday, a Sunday or a day on which commercial banking institutions are not required to be open in the State of New York.
“Lien” means, with respect to any asset, any mortgage, lien, pledge, hypothecation, charge, security interest, preference, priority or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest in and any filing of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction; provided that in no event shall an operating lease be deemed to constitute a Lien.
“Limited Condition Transaction” means (i) any investment or acquisition, including by way of merger, amalgamation or consolidation or other business combination, by the Issuer or one or more of its Restricted Subsidiaries whose consummation is not conditioned upon the availability of, or on obtaining, third party financing, (ii) any redemption, repurchase, defeasance, satisfaction and discharge or repayment of Indebtedness, Disqualified Stock or preferred stock requiring irrevocable notice in advance of such redemption, repurchase, defeasance, satisfaction and discharge or repayment and (iii) any asset sale or disposition; provided that the Consolidated Net Income (and any other financial term derived therefrom), other than for purposes of calculating any ratios in connection with the Limited Condition Transaction, shall not include any Consolidated Net Income of or attributable to the target company or assets associated with any such Limited Condition Transaction unless and until the closing of such Limited Condition Transaction shall have actually occurred.
“Long Derivative Instrument” means a Derivative Instrument (i) the value of which generally increases, and/or the payment or delivery obligations under which generally decrease, with positive changes to the Performance References and/or (ii) the value of which generally decreases, and/or the payment or delivery obligations under which generally increase, with negative changes to the Performance References.
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“Maturity” when used with respect to any Note, means the date on which the principal of such Note or an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, notice of redemption or otherwise.
“Management Holders” means present or former officers, employees or directors of any of the Issuer or its Restricted Subsidiaries who beneficially own outstanding capital stock of the Issuer.
“Moody’s” means Moody’s Investors Service, Inc., a subsidiary of Moody’s Corporation, and its successors.
“Net Income” means, with respect to any Person, the net income (loss) of such Person, determined in accordance with GAAP and before any reduction in respect of preferred stock dividends.
“Net Proceeds” means the aggregate cash proceeds and the Fair Market Value of any Cash Equivalents received by the Issuer or a Restricted Subsidiary in respect of any Asset Sale, including any cash received upon the sale or other disposition of any Designated Non-cash Consideration received in any Asset Sale, net of the direct costs relating to such Asset Sale and the sale or disposition of such Designated Non-cash Consideration, including legal, accounting and investment banking fees, and brokerage and sales commissions, any relocation expenses incurred as a result thereof, other fees, including title and recordation expenses, taxes paid or payable as a result thereof (including in connection with any repatriation of funds and after taking into account any available tax credits or deductions and any tax sharing arrangements), amounts required to be applied to the repayment of principal, premium, if any, and interest on Senior Indebtedness or Indebtedness of any Restricted Subsidiary required (other than pursuant to Section 1013(b)(1)) to be paid as a result of such transaction, any costs associated with unwinding any related Hedging Obligations in connection with such transaction and any deduction of appropriate amounts to be provided by the Issuer or any of its Restricted Subsidiaries as a reserve in accordance with GAAP against any liabilities associated with the asset disposed of in such transaction and retained by the Issuer or any of its Restricted Subsidiaries after such sale or other disposition thereof, including pension and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations associated with such transaction.
“Net Short” means, with respect to a Holder or a beneficial owner of interests in the notes (including Additional Notes, if any), as of a date of determination, either (i) the value of its Short Derivative Instruments exceeds the sum of the (x) the value of its notes plus (y) the value of its Long Derivative Instruments as of such date of determination or (ii) it is reasonably expected that such would have been the case were a Failure to Pay or Bankruptcy Credit Event (each as defined in the 2014 ISDA Credit Derivatives Definitions) to have occurred with respect to the Issuer or any Guarantor immediately prior to such date of determination.
“Noteholder Direction” has the meaning set forth under Section 502(b) of this Indenture.
“Non-U.S. Person” means a Person who is not a U.S. Person.
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“Note Register” and “Note Registrar” have the respective meanings specified in Section 302.
“Notes” has the meaning stated in the first recital of this Indenture and more particularly means any Notes authenticated and delivered under this Indenture, including the Initial Notes and the Additional Notes, all of which shall be treated as a single class for all purposes of this Indenture, and unless the context otherwise requires, all references to the Notes shall include the Initial Notes and any Additional Notes; provided that Additional Notes will not be issued with the same CUSIP, if any, as Initial Notes unless such Additional Notes are fungible with Initial Notes for U.S. Federal income tax purposes.
“Notes Custodian” means the custodian with respect to a Global Note (as appointed by the Depository) or any successor person thereto, who shall initially be the Trustee.
“Obligations” means any principal, interest, penalties, fees, indemnifications, reimbursements (including reimbursement obligations with respect to letters of credit and banker’s acceptances), damages and other liabilities, and guarantees of payment of such principal, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities, payable under the documentation governing any Indebtedness; provided that notwithstanding the foregoing, Obligations shall be deemed not to include unmatured or undrawn Performance Guarantees or any reimbursement or other obligations with respect to unmatured or undrawn, as applicable, Performance Guarantees.
“Offering Document” means the confidential offering memorandum dated February 12, 2026, pursuant to which the Initial Notes were offered to potential purchasers.
“Officer” means the Chairman of the Board, any Manager or Director, the Chief Executive Officer, the Chief Financial Officer, the President, any Executive Vice President, Senior Vice President or Vice President, the Treasurer, the Chief Accounting Officer, the Controller or the Secretary of the Issuer or any other Person, as the case may be.
“Officer’s Certificate” means a certificate signed by an Officer of the Issuer or any other Person, as the case may be, who must be the principal executive officer, the principal financial officer, the treasurer or the principal accounting officer of the Issuer (or of a Subsidiary of the Issuer acting in such capacity for the Issuer and its Subsidiaries, as determined by the Issuer) or such other Person, that meets the requirements set forth in this Indenture.
“Opinion of Counsel” means a written opinion reasonably acceptable to the Trustee and that is delivered to the Trustee from Issuer’s legal counsel (which may be subject to customary assumptions and exclusions). The counsel may be an employee of or counsel to the Issuer, or other counsel, which is reasonably acceptable to the Trustee.
“Outstanding,” when used with respect to Notes, means, as of the date of determination, all Notes theretofore authenticated and delivered under this Indenture, except:
(1) Notes theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
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(2) Notes, or portions thereof, for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Issuer) in trust or set aside and segregated in trust by the Issuer (if the Issuer shall act as its own Paying Agent) for the Holders of such Notes; provided that, if such Notes are to be redeemed, written notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made;
(3) Notes, except to the extent provided in Sections 1302 and 1303, with respect to which the Issuer has effected Legal Defeasance or Covenant Defeasance as provided in Article Thirteen; and
(4) Notes which have been paid pursuant to this Indenture or in exchange for or in lieu of which other Notes have been authenticated and delivered pursuant to this Indenture, other than any such Notes in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Notes are held by a Protected Purchaser in whose hands the Notes are valid obligations of the Issuer;
provided that, in determining whether the Holders of the requisite principal amount of Outstanding Notes have given any request, demand, authorization, direction, consent, notice or waiver hereunder, and for the purpose of making the calculations under this Indenture, Notes owned by the Issuer or any other obligor upon the Notes or any Affiliate of the Issuer or such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in making such calculation or in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Notes which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded.
“Paying Agent” means any Person (including the Issuer acting as Paying Agent) authorized by the Issuer to pay the principal of (and premium, if any) or interest on any Notes on behalf of the Issuer. The Issuer initially appoints the Trustee as Paying Agent.
“Performance Guarantee” of any Person means (a) any letter of credit, bankers acceptance, surety bond, performance bond, bank guarantee or other similar obligation issued for the account of such Person to support only trade payables or nonfinancial performance obligations of such Person, (b) any letter of credit, bankers acceptance, surety bond, performance bond, bank guarantee or other similar obligation issued for the account of such Person to support any letter of credit, bankers acceptance, surety bond, performance bond, bank guarantee or other similar obligation issued for the account of a Restricted Subsidiary, a joint venture or a consortium of such Person to support only trade payables or non- financial performance obligations of such Restricted Subsidiary, joint venture or consortium, and (c) any parent company guarantee or other direct or indirect liability, contingent or otherwise, of such Person with respect to trade payables or non- financial performance obligations of a Restricted Subsidiary, a joint venture or a consortium of such Person, if the purpose of such Person in incurring such liability is to provide assurance to the obligee that such contractual obligation will be performed, or that any agreement relating thereto will be complied with.
“Performance References” means the value and/or performance of the notes and/or the creditworthiness of the Issuer and/or any one or more of the Guarantors.
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“Permitted Asset Swap” means the concurrent purchase and sale or exchange of Related Business Assets or a combination of Related Business Assets and cash or Cash Equivalents between the Issuer or a Restricted Subsidiary and another Person; provided that any cash or Cash Equivalents received must be applied in accordance with Section 1013.
“Permitted Holders” means collectively, any Permitted Parent, any Management Holders and all of their respective Permitted Transferees. Any Person or group whose acquisition of beneficial ownership constitutes a Change of Control in respect of which a Change of Control Offer is made in accordance with the requirements of this Indenture will thereafter, together with its Affiliates, constitute an additional Permitted Holder.
“Permitted Investments” means:
(1) any Investment in the Issuer or any Restricted Subsidiary or that is or will become immediately after such Investment a Restricted Subsidiary, including, without limitation, a repurchase or retirement of the Notes;
(2) any Investment in cash, Cash Equivalents or Investment Grade Securities;
(3) any Investment by the Issuer or any Restricted Subsidiary in a Person that is engaged in a Similar Business if as a result of such Investment:
(A) such Person becomes a Restricted Subsidiary, or
(B) such Person, in one transaction or a series of related transactions, is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of its assets to, or is liquidated into, the Issuer or a Restricted Subsidiary, and, in each case, any Investment held by such Person; provided that such Investment was not acquired by such Person in contemplation of such acquisition, merger, consolidation or transfer;
(4) any Investment in securities or other assets not constituting cash, Cash Equivalents or Investment Grade Securities and received in connection with an Asset Sale made pursuant to Section 1013, or any other disposition of assets not constituting an Asset Sale;
(5) any Investment existing on the Issue Date or made pursuant to legally binding commitments in existence on the Issue Date, and any extension, modification or renewal of such existing Investments or binding commitment existing on the Issue Date;
(6) any Investment acquired by the Issuer or any Restricted Subsidiary:
(A) (x) in exchange for any other Investment or accounts receivable held by the Issuer or any such Restricted Subsidiary in connection with or as a result of a bankruptcy, workout, reorganization or recapitalization of the issuer of such other Investment or the obligor with respect to such accounts receivable or (y) in good faith settlement of delinquent obligations of, and other disputes with, customers, trade debtors, licensors, licensees and suppliers arising in the ordinary course, or;
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(B) as a result of a foreclosure by the Issuer or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default;
(7) Hedging Obligations permitted under Section 1007(b)(10);
(8) any Investment in a Similar Business having an aggregate Fair Market Value, taken together with all other Investments made pursuant to this clause (8) that are at that time outstanding, not to exceed the greater of (x) $250.0 million and (y) 6.250% of Consolidated Total Assets at the time of such Investment (with the Fair Market Value of each Investment being measured at the time made and without giving effect to subsequent changes in value); provided, however, that if any Investment pursuant to this clause (8) is made in any Person that is not a Restricted Subsidiary of the Issuer at the date of the making of such Investment and such Person becomes a Restricted Subsidiary after such date, such investment shall thereafter be deemed to have been made pursuant to clause (1) above and shall cease to have been made pursuant to this clause (8) for so long as such Person continues to be a Restricted Subsidiary;
(9) Investments the payment for which consists of Equity Interests of the Issuer or any direct or indirect parent company of the Issuer (exclusive of Disqualified Stock); provided that such Equity Interests will not increase the amount available for Restricted Payments under clause (C) of Section 1006(a);
(10) guarantees of Indebtedness permitted under Section 1007 and performance guarantees in the ordinary course of business;
(11) any transaction to the extent it constitutes an Investment that is permitted and made in accordance with Section 1009(b) (except transactions described in Section 1009(b)(2), (5), (9) and (15));
(12) Investments consisting of purchases and acquisitions of inventory, supplies, material or equipment or other similar assets in the ordinary course of business, or the licensing or contribution of intellectual property pursuant to joint marketing arrangements with other Persons;
(13) additional Investments having an aggregate Fair Market Value, taken together with all other Investments made pursuant to this clause (13) that are at that time outstanding (without giving effect to the sale of an Unrestricted Subsidiary to the extent the proceeds of such sale do not consist of cash or marketable securities), not to exceed the greater of (x) $500.0 million and (y) 12.500% of Consolidated Total Assets at the time of such Investment (with the Fair Market Value of each Investment being measured at the time made and without giving effect to subsequent changes in value); provided, however, that if any Investment pursuant to this clause (13) is made in any Person that is not a Restricted Subsidiary of the Issuer at the date of the making of such Investment and such Person becomes a Restricted Subsidiary after such date, such investment shall thereafter be deemed to have been made pursuant to clause (1) above and shall cease to have been made pursuant to this clause (13) for so long as such Person continues to be a Restricted Subsidiary;
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(14) Investments relating to any Receivables Subsidiary that, in the good faith determination of the Board of Directors of the Issuer, are necessary or advisable to effect such Receivables Facility or any repurchases in connection therewith;
(15) loans and advances to, or guarantees of Indebtedness of, employees of the Issuer or a Restricted Subsidiary in the aggregate not to exceed $20.0 million at any one time outstanding;
(16) loans and advances to officers, directors, managers and employees of the Issuer or a Restricted Subsidiary for business-related travel expenses, moving expenses, tax advances, payroll advances or expenses and other similar expenses, in each case incurred in the ordinary course of business or consistent with past practices or to fund such Person’s purchase of Equity Interests of the Issuer or any direct or indirect parent company thereof;
(17) advances, loans, rebates or extensions of trade credit in the ordinary course of business by the Issuer or any of the Restricted Subsidiaries;
(18) intercompany current liabilities owed to Unrestricted Subsidiaries or joint ventures incurred in the ordinary course of business in connection with the cash management operations of the Issuer and its Subsidiaries;
(19) pledges or deposits with respect to leases or utilities provided to third parties in the ordinary course of business;
(20) Investments in joint ventures and Unrestricted Subsidiaries having an aggregate Fair Market Value, taken together with all other Investments made pursuant to this clause (20) that are at that time outstanding, not to exceed the greater of (x) $250.0 million and (y) 6.250% of Consolidated Total Assets at the time of such investment (with the Fair Market Value of each Investment being measured at the time made and without giving effect to subsequent changes in value);
(21) the acquisition of assets or Capital Stock solely in exchange for the issuance of common equity securities of the Issuer;
(22) Investments by any captive insurance Restricted Subsidiary (x) in the ordinary course of business, of a nature and type described under Cash Equivalents, provided that the maturity of such Investments from the date of acquisition does not exceed five years, or (y) in existence on the Issue Date;
(23) Investments in respect of, including by way of contribution to, any employee benefit plan or arrangement (including pension and retirement plans); and
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(24) any Investment; provided that on a pro forma basis after giving effect to such Investment (x) the Consolidated Total Debt Ratio would be equal to or less than 4.00 to 1.00 and (y) no Event of Default shall have occurred and be continuing or would occur as a consequence thereof.
“Permitted Liens” means, with respect to any Person:
(1) pledges, deposits or security by such Person under workmen’s compensation laws, unemployment insurance laws, employers’ health tax, and other social security laws or similar legislation or other insurance related obligations (including, but not limited to, in respect of deductibles, self-insured retention amounts and premiums and adjustments thereto) or indemnification obligations of (including obligations in respect of letters of credit or bank guarantees for the benefit of) insurance carriers providing property, casualty or liability insurance, or good faith deposits in connection with bids, tenders, contracts (other than for the payment of Indebtedness) or leases to which such Person is a party, or deposits to secure public or statutory obligations of such Person or deposits of cash or U.S. government bonds to secure surety, stay, customs, appeal or similar bonds to which such Person is a party, or deposits as security for contested taxes or import duties or for the payment of rent, performance and return-of-money bonds and other similar obligations (including letters of credit issued in lieu of any such bonds or to support the issuance thereof and including those to secure health, safety and environmental obligations), in each case, incurred in the ordinary course of business;
(2) Liens imposed by law or regulation, such as carriers’, warehousemen’s, materialmen’s, repairmen’s, mechanics’, contractors’, architects’ and other similar Liens, in each case for sums not yet overdue for a period of more than 30 days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards against such Person with respect to which such Person shall then be proceeding with an appeal or other proceedings for review if adequate reserves with respect thereto are maintained on the books of such Person in accordance with GAAP;
(3) Liens for taxes, assessments or other governmental charges not yet overdue for a period of more than 30 days or which are being contested in good faith by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of such Person in accordance with GAAP, or for property taxes on property the Issuer or one of its Subsidiaries has determined to abandon if the sole recourse for such tax, assessment, charge, levy or claim is to such property;
(4) Liens in favor of issuers of performance, surety, bid, indemnity, warranty, release, appeal or similar bonds or with respect to other regulatory requirements or letters of credit or bankers’ acceptances issued, and completion guarantees provided for, in each case pursuant to the request of and for the account of such Person in the ordinary course of its business;
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(5) minor survey exceptions, minor encumbrances, ground leases, easements or reservations of, or rights of others for, licenses, rights-of-way, servitudes, sewers, electric lines, drains, telegraph and telephone and cable television lines, gas and oil pipelines and other similar purposes, or zoning, building codes or other restrictions (including, without limitation, minor defects or irregularities in title and similar encumbrances) as to the use of real properties or Liens incidental, to the conduct of the business of such Person or to the ownership of its properties which were not incurred in connection with Indebtedness and which do not in the aggregate materially adversely affect the value of said properties or materially impair their use in the operation of the business of such Person;
(6) Liens securing Indebtedness permitted to be incurred pursuant to Section 1007(b)(1), (2), (4), (12), or (18); provided that, (x) in the case of Section 1007(b)(4), such Lien may not extend to any property or equipment (or assets affixed or appurtenant thereto) other than the property or equipment being financed or Refinanced under such Section 1007(b)(4), and (y) in the case of Section 1007(b)(18), such Lien may not extend to any assets other than the assets owned by the Restricted Subsidiaries incurring such Indebtedness;
(7) Liens existing on the Issue Date (other than Liens incurred in connection with the Senior Credit Facility);
(8) Liens on property or shares of stock of a Person at the time such Person becomes a Subsidiary; provided such Liens are not created or incurred in connection with, or in contemplation of, such other Person becoming a Subsidiary; provided, further, however, that such Liens may not extend to any other property owned by the Issuer or any Restricted Subsidiary;
(9) Liens on property at the time the Issuer or a Restricted Subsidiary acquired the property, including any acquisition by means of a merger or consolidation with or into the Issuer or any Restricted Subsidiary; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition, merger or consolidation; provided, further that the Liens may not extend to any other property owned by the Issuer or any Restricted Subsidiary;
(10) Liens securing Indebtedness or other obligations of a Restricted Subsidiary owing to the Issuer or another Restricted Subsidiary permitted to be incurred in accordance with Section 1007 hereof;
(11) Liens securing Hedging Obligations and Cash Management Services so long as the related Indebtedness is, and is permitted under this Indenture to be, secured by a Lien on the same property securing such Hedging Obligations;
(12) Liens on specific items of inventory or other goods and proceeds of any Person securing such Person’s obligations in respect of bankers’ acceptances or trade letters of credit issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;
(13) leases, subleases, licenses or sublicenses (including, without limitation, real property and intellectual property) granted to others in the ordinary course of business which do not materially interfere with the ordinary conduct of the business of the Issuer or any Restricted Subsidiary and do not secure any Indebtedness;
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(14) Liens arising from Uniform Commercial Code (or equivalent statute) financing statement filings regarding operating leases or consignments entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business;
(15) Liens in favor of the Issuer or any Guarantor;
(16) Liens on inventory or equipment of the Issuer or any Restricted Subsidiary granted in the ordinary course of business to the Issuer’s or such Restricted Subsidiaries’ client at which such inventory or equipment is located;
(17) Liens on accounts receivable and related assets incurred in connection with a Receivables Facility;
(18) Liens to secure any refinancing, refunding, extension, renewal or replacement (or successive refinancing, refunding, extensions, renewals or replacements) as a whole, or in part, of any Indebtedness secured by any Lien referred to in clauses (6) (solely with respect to Liens securing Indebtedness permitted to be incurred pursuant to clauses (2), (4), (12) or (18) of Section 1007(b)), (7), (8), (9), (10), (18) and (20) of this definition of “Permitted Liens”; provided that (A) such new Lien shall be limited to all or part of the same property that secured the original Lien (plus accessions, additions and improvements on such property), and (B) the Indebtedness secured by such Lien at such time is not increased to any amount greater than the sum of (i) the outstanding principal amount or, if greater, committed amount of the Indebtedness described under clauses (6) (solely with respect to Liens securing Indebtedness permitted to be incurred pursuant to clauses (2), (4), (12) or (18) of Section 1007(b)), (7), (8), (9), (10), (18) and (20) at the time the original Lien became a Permitted Lien under this Indenture, and (ii) an amount necessary to pay any fees and expenses, including premiums, and accrued and unpaid interest related to such refinancing, refunding, extension, renewal or replacement;
(19) deposits made or other security provided to secure liabilities to insurance carriers under insurance or self- insurance arrangements in the ordinary course of business;
(20) Liens to secure Indebtedness incurred pursuant to the covenant described under Section 1007; provided that (x) no Event of Default shall have occurred and be continuing at the time of the incurrence of such Indebtedness or after giving effect thereto and (y) the Consolidated Secured Debt Ratio, calculated on a pro forma basis after giving effect to the incurrence of such Lien, the related Indebtedness and the application of net proceeds therefrom, would be no greater than 4.00 to 1.00;
(21) other Liens securing obligations which obligations at any one time outstanding do not exceed the greater of (x) $250.0 million and (y) 6.250% of Consolidated Total Assets at the time of incurrence;
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(22) Liens securing judgments for the payment of money not constituting an Event of Default under Section 501(5) so long as such Liens are adequately bonded and any appropriate legal proceedings that may have been duly initiated for the review of such judgment have not been finally terminated or the period within which such proceedings may be initiated has not expired;
(23) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods in the ordinary course of business;
(24) Liens (i) of a collection bank arising under Section 4-210 of the Uniform Commercial Code or any comparable or successor provision on items in the course of collection, (ii) attaching to pooling, commodity trading accounts or other commodity brokerage accounts incurred in the ordinary course of business and (iii) in favor of banking or other financial institutions or electronic payment service providers arising as a matter of law encumbering deposits (including the right of set- off) and which are within the general parameters customary in the banking or finance industry;
(25) Liens deemed to exist in connection with Investments in repurchase agreements permitted under Section 1007; provided that such Liens do not extend to any assets other than those that are the subject of such repurchase agreement;
(26) Liens encumbering reasonable customary initial deposits and margin deposits and similar Liens attaching to commodity trading accounts or other brokerage accounts incurred in the ordinary course of business and not for speculative purposes;
(27) Liens that are contractual rights of set-off (i) relating to the establishment of depository relations with banks not given in connection with the issuance of Indebtedness, (ii) relating to pooled deposit or sweep accounts of the Issuer or any of its Restricted Subsidiaries to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Issuer and its Restricted Subsidiaries or (iii) relating to purchase orders and other agreements entered into with customers of the Issuer or any of its Restricted Subsidiaries in the ordinary course of business;
(28) Liens solely on any cash earnest money deposits made by the Issuer or any of its Restricted Subsidiaries in connection with any letter of intent or purchase agreement permitted under this Indenture;
(29) the rights reserved or vested in any Person by the terms of any lease, license, franchise, grant or permit held by the Issuer or any of its Restricted Subsidiaries or by a statutory provision, to terminate any such lease, license, franchise, grant or permit, or to require annual or periodic payments as a condition to the continuance thereof;
(30) restrictive covenants affecting the use to which real property may be put; provided that the covenants are complied with;
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(31) security given to a public utility or any municipality or governmental authority when required by such utility or authority in connection with the operations of that Person in the ordinary course of business;
(32) zoning by-laws and other land use restrictions, including, without limitation, site plan agreements, development agreements and contract zoning agreements;
(33) Liens arising out of conditional sale, title retention, consignment or similar arrangements for sale of goods entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business;
(34) any Lien granted pursuant to a security agreement between the Issuer or any Restricted Subsidiary and a licensee of their intellectual property to secure the damages, if any, of such licensee resulting from the rejection by the Issuer or such Restricted Subsidiary of such licensee in a bankruptcy, reorganization or similar proceeding with respect to the Issuer or such Restricted Subsidiary; provided that such Liens do not cover any assets other than the intellectual property subject to such license;
(35) Liens on the Equity Interests of Unrestricted Subsidiaries with respect to Indebtedness incurred by such Unrestricted Subsidiaries;
(36) any encumbrance or restriction (including put and call arrangements) with respect to Capital Stock of any joint venture or similar arrangement pursuant to any joint venture or similar agreement;
(37) Liens on property or assets used to defease or to irrevocably satisfy and discharge Indebtedness; provided that such defeasance or satisfaction and discharge is not prohibited by this Indenture;
(38) (i) mortgages, liens, security interests, restrictions, encumbrances or any other matters of record that have been placed by any developer, landlord or other third party on property over which the Issuer or any Restricted Subsidiary of the Issuer has easement rights or on any leased property and subordination or similar agreements relating thereto and (ii) any condemnation or eminent domain proceedings affecting any real property;
(39) Liens on property or assets under construction (and related rights) in favor of a contractor or developer arising from progress or partial payments by a third party relating to such property or assets;
(40) Liens arising as a result of a Sale and Lease-Back Transaction;
(41) Liens on equipment, inventory and goods, including supplies, materials and work in process, created in the ordinary course of business in favor of a governmental entity by operation of the Federal Acquisition Regulation, any amendments, supplements or updates thereto and any similar laws, in connection with the performance by the Issuer and its Subsidiaries of contracts with a governmental entity;
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(42) Liens on assets pursuant to merger agreements, stock or asset purchase agreements and similar agreements in respect of the disposition of such assets; and
(43) Liens on property necessary to defease Indebtedness that was not incurred in violation of this Indenture.
For purposes of determining compliance with this definition, (x) a Lien need not be incurred solely by reference to one category of Permitted Liens described in this definition but may be incurred under any combination of such categories (including in part under one such category and in part under any other such category), (y) in the event that a Lien (or any portion thereof) meets the criteria of one or more of such categories of Permitted Liens, the Issuer shall, in its sole discretion, classify or reclassify such Lien (or any portion thereof) in any manner that complies with this definition, and (z) in the event that a portion of Indebtedness secured by a Lien could be classified as secured in part pursuant to clause (20) of this definition (giving effect to the incurrence of such portion of such Indebtedness), the Issuer, in its sole discretion, may classify such portion of such Indebtedness (and any Obligations in respect thereof) as having been secured pursuant to clause (20) of this definition and thereafter the remainder of the Indebtedness as having been secured pursuant to one or more of the other clauses of this definition.
For purposes of this definition, the term “Indebtedness” shall be deemed to include interest on such Indebtedness.
“Permitted Parent” means any Person so long as such Person directly or indirectly holds 100% of the total voting power of the Voting Stock of the Issuer, and at the time such Person acquired such voting power, no Person and no group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act, or any successor provision), including any such group acting for the purpose of acquiring, holding or disposing of securities (within the meaning of Rule 13d-5(b)(1)under the Exchange Act) (other than any Permitted Holder), shall have beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act, or any successor provision), directly or indirectly, of 50% or more of the total voting power of the Voting Stock of such Person.
“Permitted Transferee” means in the case of any Management Holders, (i) his or her heirs, executors, administrators, testamentary trustees, legatees or beneficiaries, (ii) his or her spouse, parents, siblings, members of his or her immediate family (including adopted children) or direct lineal descendants or (iii) a trust, the beneficiaries of which, or a corporation or partnership, the stockholders or partners of which, include only the Management Holder, as the case may be, and his or her spouse, parents, siblings, members of his or her immediate family (including adopted children) and/or direct lineal descendants.
“Person” means any individual, corporation, limited liability company, partnership, joint venture, association, joint stock company, trust, unincorporated organization, government or any agency or political subdivision thereof or any other entity.
“Position Representation” has the meaning set forth under Section 502(b) of this Indenture.
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“Predecessor Note” of any particular Note means every previous Note evidencing all or a portion of the same debt as that evidenced by such particular Note; and, for the purposes of this definition, any Note authenticated and delivered under Section 306 in exchange for a mutilated Note or in lieu of a destroyed, lost or stolen Note shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Note.
“preferred stock” means any Equity Interest with preferential rights of payment of dividends or upon liquidation, dissolution, or winding up.
“Protected Purchaser” has the meaning specified in Section 306 of this Indenture.
“Qualified Proceeds” means assets that are used or useful in, or Capital Stock of any Person engaged in, a Similar Business.
“Rating Agencies” mean Moody’s and S&P or if Moody’s or S&P or both shall not make a rating on the Notes publicly available, a nationally recognized statistical rating agency or agencies, as the case may be, selected by the Issuer which shall be substituted for Moody’s or S&P or both, as the case may be.
“Ratings Decline Period” means the period that (i) begins on the earlier of (a) the occurrence of a Change of Control or (b) the first public notice of the intention by the Issuer to affect a Change of Control and (ii) ends 60 days following the consummation of such Change of Control; provided, that such period will be extended so long as the rating of the notes is under publicly announced consideration for a possible downgrade by any of the Rating Agencies.
“Ratings Event” means (x) a downgrade by one or more gradations (including gradations within ratings categories as well as between categories) or withdrawal of the rating of the notes within the Ratings Decline Period by both Rating Agencies if the applicable Rating Agencies shall have put forth a public statement to the effect that such downgrade or withdrawal is attributable in whole or in part to the applicable Change of Control and (y) the notes do not have an Investment Grade Rating from any one of the Rating Agencies at such time.
“Receivables Facility” means any of one or more receivables financing facilities, as amended, supplemented, modified, extended, renewed, restated or refunded from time to time, the Obligations of which are non-recourse (except for customary representations, warranties, covenants and indemnities made in connection with such facilities) to the Issuer and the Restricted Subsidiaries (other than a Receivables Subsidiary) pursuant to which the Issuer or any Restricted Subsidiary sells its accounts receivable to either (a) a Person that is not a Restricted Subsidiary or (b) a Receivables Subsidiary that in turn funds such purchase by purporting to sell its accounts receivable to a Person that is not a Restricted Subsidiary or by borrowing from such a Person or from another Receivables Subsidiary that in turn funds itself by borrowing from such a Person.
“Receivables Fee” means distributions or payments made directly or by means of discounts with respect to any accounts receivable or participation interest issued or sold in connection with, and other fees paid to a Person that is not a Restricted Subsidiary in connection with, any Receivables Facility.
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“Receivables Subsidiary” means any Subsidiary formed for the purpose of facilitating or entering into one or more Receivables Facilities, and in each case engages only in activities reasonably related or incidental thereto.
“Recovery Event” means any settlement of or payment in respect of any property or casualty insurance claim or any condemnation proceeding relating to any asset of the Issuer or any of its Restricted Subsidiaries, other than (x) any such settlement or payment arising by reason of any loss of revenues or interruption of business or operations caused thereby and (y) any such settlement or payment constituting reimbursement or compensation for amounts previously paid by the Issuer or any of its Subsidiaries in respect of the theft, loss, destruction, damage or other similar event relating to any such claim or proceeding.
“Redemption Date,” when used with respect to any Note to be redeemed, in whole or in part, means the date fixed for such redemption by or pursuant to this Indenture.
“Redemption Price,” when used with respect to any Note to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture.
“Refinance” means, in respect of any Indebtedness, Disqualified Stock or preferred stock, to refinance, extend, renew, refund, repay, prepay, purchase, redeem, defease or retire, or to issue other Indebtedness, Disqualified Stock or preferred stock in exchange or replacement for, such Indebtedness, Disqualified Stock or preferred stock, in whole or in part. “Refinanced” and “Refinancing” shall have correlative meanings.
“Refinancing Indebtedness” has the meaning specified in Section 1007 of this Indenture.
“Refunding Capital Stock” has the meaning specified in Section 1006 of this Indenture.
“Regular Record Date” has the meaning specified in Section 301 of this Indenture.
“Related Business Assets” means assets (other than cash or Cash Equivalents) used or useful in a Similar Business; provided that any assets received by the Issuer or the Restricted Subsidiaries in exchange for assets transferred by the Issuer or a Restricted Subsidiary shall not be deemed to be Related Business Assets if they consist of securities of a Person, unless upon receipt of the securities of such Person, such Person would become a Restricted Subsidiary.
“Responsible Officer,” means any director, vice president, assistant vice president, associate, or any other officer of the Trustee within the corporate trust department customarily performing functions similar to those performed by any of the above designated officers, and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject and, in each case, who shall have direct responsibility for the administration of this Indenture.
“Restricted Investment” means an Investment other than a Permitted Investment.
“Restricted Payments” has the meaning specified in Section 1006 of this Indenture.
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“Restricted Subsidiary” means, at any time, any direct or indirect Subsidiary of the Issuer (including any Foreign Subsidiary) that is not then an Unrestricted Subsidiary; provided that upon the occurrence of an Unrestricted Subsidiary ceasing to be an Unrestricted Subsidiary, such Subsidiary shall be included in the definition of “Restricted Subsidiary.”
“Retired Capital Stock” has the meaning specified in Section 1006 of this Indenture.
“Reversion Date” has the meaning specified in Section 1014(a) of this Indenture.
“S&P” means S&P Global Ratings (a division of S&P Global Inc.) or any successor to the rating agency business thereof.
“Sale and Lease-Back Transaction” means any arrangement with any Person providing for the leasing by the Issuer or any Restricted Subsidiary of any real or tangible personal property, which property has been or is to be sold or transferred by the Issuer or such Restricted Subsidiary to such Person in contemplation of such leasing.
“SEC” means the Securities and Exchange Commission or any successor agency thereto.
“Second Commitment” has the meaning specified in Section 1013 of this Indenture.
“Secured Indebtedness” means any Indebtedness of the Issuer or any of its Restricted Subsidiaries secured by a Lien.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated thereunder.
“Senior Credit Facility” means the Credit Facilities provided under the credit agreement dated as of July 31, 2019, as amended as of September 24, 2019, as further amended as of May 26, 2022, as further amended as of November 26, 2025 and as further amended on or around the issuance date of the notes in the offering of the Notes, among the Issuer, the guarantors party thereto, the lenders party thereto from time to time in their capacities as lenders thereunder, Bank of America, N.A., as administrative agent for the term Credit Facility, and PNC Bank, National Association, as administrative agent for the revolving Credit Facility and as collateral agent, including any notes, mortgages, guarantees, collateral documents, instruments and agreements executed in connection therewith, and any amendments, supplements, modifications, extensions, replacements, renewals, restatements, refundings or refinancings thereof and any one or more indentures or credit facilities or commercial paper facilities with banks or other institutional lenders or investors that extend, replace, refund, refinance, renew or defease any part of the loans, notes, other credit facilities or commitments thereunder, including any such replacement, refunding or refinancing facility or indenture that increases the amount borrowable thereunder or alters the maturity thereof or adds Restricted Subsidiaries as additional borrowers or guarantors thereunder and whether by the same or any other agent, lender or group of lenders.
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“Screened Affiliate” means any Affiliate of a Holder (i) that makes investment decisions independently from such Holder and any other Affiliate of such Holder that is not a Screened Affiliate, (ii) that has in place customary information screens between it and such Holder and any other Affiliate of such Holder that is not a Screened Affiliate and such screens prohibit the sharing of information with respect to the Issuer or its Subsidiaries, (iii) whose investment policies are not directed by such Holder or any other Affiliate of such Holder that is acting in concert with such Holder in connection with its investment in the Notes, and (iv) whose investment decisions are not influenced by the investment decisions of such Holder or any other Affiliate of such Holder that is acting in concert with such Holders in connection with its investment in the Notes.
“Senior Indebtedness” means with respect to any Person:
(1) Indebtedness of such Person, whether outstanding on the Issue Date or thereafter incurred; and
(2) all other Obligations of such Person (including interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to such Person whether or not post-filing interest is allowed in such proceeding) in respect of Indebtedness described in clause (1) above,
in the case of both clauses (1) and (2), to the extent permitted to be incurred under the terms of this Indenture, unless, in the case of clauses (1) and (2), in the instrument creating or evidencing the same or pursuant to which the same is outstanding, it is provided that such Indebtedness or other Obligations are subordinated in right of payment to the Notes or the Guarantee of such Person, as the case may be; provided that Senior Indebtedness shall not include:
(1) any obligation of such Person to the Issuer or any Subsidiary of the Issuer;
(2) any liability for federal, state, local or other taxes owed or owing by such Person;
(3) any accounts payable or other liability to trade creditors arising in the ordinary course of business;
(4) any Capital Stock;
(5) any Indebtedness or other Obligation of such Person which is subordinate or junior in any respect to any other Indebtedness or other Obligation of such Person; or
(6) that portion of any Indebtedness which at the time of incurrence is incurred in violation of this Indenture.
“Senior Secured Indebtedness” means Senior Indebtedness that is Secured Indebtedness.
“Short Derivative Instrument” means a Derivative Instrument (i) the value of which generally decreases, and/or the payment or delivery obligations under which generally increase, with positive changes to the Performance References and/or (ii) the value of which generally increases, and/or the payment or delivery obligations under which generally decrease, with negative changes to the Performance References.
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“Significant Subsidiary” means any Restricted Subsidiary that would be a “significant subsidiary” as defined in Article 1, Rule 1-02(w) of Regulation S-X, promulgated pursuant to the Securities Act, as such regulation is in effect on the Issue Date.
“Similar Business” means any business or other activities conducted or proposed to be conducted by the Issuer and its Restricted Subsidiaries on the Issue Date or any business or other activities conducted by any entity that is similar, reasonably related, complementary, incidental or ancillary thereto or a reasonable extension, development or expansion thereof.
“Special Record Date” for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 307.
“Stated Maturity,” when used with respect to any Note or any installment of principal thereof or interest thereon, means the date specified in such Notes as the fixed date on which the principal of such Notes or such installment of principal or interest is due and payable.
“Subordinated Indebtedness” means:
(1) with respect to the Issuer, any Indebtedness of the Issuer which is by its terms subordinated in right of payment to the Notes, and
(2) with respect to any Guarantor, any Indebtedness of such Guarantor which is by its terms subordinated in right of payment to the Guarantee of such Guarantor under this Indenture.
“Subsidiary” means, with respect to any Person,
(1) any corporation, association, or other business entity (other than a partnership, joint venture, limited liability company or similar entity) of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time of determination owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof and
(2) any partnership, joint venture, limited liability company or similar entity of which:
(A) more than 50% of the capital accounts, distribution rights, total equity and voting interests or general or limited partnership interests, as the case may be, are owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof whether in the form of membership, general, special or limited partnership or otherwise, and
(B) such Person or any Restricted Subsidiary of such Person is a controlling general partner or otherwise controls such entity;
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provided that any reference in this Indenture to a “Subsidiary” of the Issuer shall exclude any Person whose financial statements are not consolidated with the financial statements of the Issuer in accordance with GAAP.
“Successor Company” has the meaning specified in Section 801 of this Indenture.
“Suspended Covenants” has the meaning specified in Section 1014(a) of this Indenture.
“Suspension Date” has the meaning specified in Section 1014(a) of this Indenture.
“Suspension Period” has the meaning specified in Section 1014(a) of this Indenture.
“Transactions” has the meaning set forth under “Presentation of Information” in the Offering Document.
“Treasury Rate” means, as of any applicable redemption date, as determined by the Issuer, the weekly average rounded to the nearest 1/100th of a percentage point (for the most recently completed week for which such information is available as of the date that is two business days prior to the applicable redemption date) of the yield to maturity of United States Treasury securities with a constant maturity (as compiled and published in the Federal Reserve Statistical Release H.15 with respect to each applicable day during such week or, if such Statistical Release is no longer published or available, any publicly available source of similar market data selected by the Issuer) most nearly equal to the period from the applicable redemption date to March 1, 2029; provided, however, that if the period from the applicable redemption date to March 1, 2029 is not equal to the constant maturity of a United States Treasury security for which such a yield is given, the Treasury Rate shall be obtained by linear interpolation (calculated to the nearest one twelfth of a year) from the weekly average yields of United States Treasury securities for which such yields are given, except that if the period from the applicable redemption date to March 1, 2029 is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year will be used.
“Trustee” means U.S. Bank Trust Company, National Association until a successor replaces it and, thereafter, means the successor.
“Uniform Commercial Code” means the New York Uniform Commercial Code as in effect from time to time.
“Unrestricted Subsidiary” means:
(1) any Subsidiary of the Issuer which at the time of determination is an Unrestricted Subsidiary (as designated by the Board of Directors of the Issuer, as provided below) and
(2) any Subsidiary of an Unrestricted Subsidiary.
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The Board of Directors of the Issuer may designate any Subsidiary of the Issuer (including any existing Subsidiary and any newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries owns any Equity Interests or Indebtedness of, or owns or holds any Lien on, any property of, the Issuer or any Subsidiary of the Issuer (other than any Subsidiary of the Subsidiary to be so designated); provided that:
(1) any Unrestricted Subsidiary must be an entity of which the Equity Interests entitled to cast at least a majority of the votes that may be cast by all Equity Interests having ordinary voting power for the election of directors or other governing body are owned, directly or indirectly, by the Issuer,
(2) such designation complies with Section 1006, and
(3) each of
(A) the Subsidiary to be so designated and
(B) (its Subsidiaries has not at the time of designation, and does not thereafter, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable with respect to any Indebtedness pursuant to which the lender has recourse to any of the assets of the Issuer or any Restricted Subsidiary.
The Board of Directors of the Issuer may designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that, immediately after giving effect to such designation no Default shall have occurred and be continuing and either:
(1) the Issuer could incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test described under Section 1007(a), or
(2) the Fixed Charge Coverage Ratio for the Issuer and the Restricted Subsidiaries would be equal to or greater than such ratio for the Issuer and the Restricted Subsidiaries immediately prior to such designation,
in each case on a pro forma basis taking into account such designation.
Any such designation by the Board of Directors of the Issuer shall be notified by the Issuer to the Trustee by promptly filing with the Trustee a copy of the Board Resolution giving effect to such designation and an Officer’s Certificate certifying that such designation complied with the foregoing provisions.
“U.S. Person” means a U.S. Person as defined in Rule 902(k) promulgated under the Securities Act.
“Verification Covenant” has the meaning set forth under Section 502(b) of this Indenture.
“Vice President,” when used with respect to the Issuer or the Trustee, means any vice president, whether or not designated by a number or a word or words added before or after the title “vice president.”
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“Voting Stock” of any Person as of any date means the Capital Stock of such Person that is at the time entitled to vote in the election of the Board of Directors of such Person.
“Weighted Average Life to Maturity” means, when applied to any Indebtedness, Disqualified Stock or preferred stock, as the case may be, at any date, the quotient obtained by dividing:
(1) the sum of the products of the number of years from the date of determination to the date of each successive scheduled principal payment of such Indebtedness or redemption or similar payment with respect to such Disqualified Stock or preferred stock multiplied by the amount of such payment,
(2) by the sum of all such payments.
“Wholly-Owned Subsidiary” of any Person means a Subsidiary of such Person, 100% of the outstanding Capital Stock or other ownership interests of which (other than directors’ qualifying shares) shall at the time be owned by such Person or by one or more Wholly-Owned Subsidiaries of such Person.
SECTION 103. Compliance Certificates and Opinions. Upon any application or request by the Issuer to the Trustee to take or refrain from taking any action under this Indenture, the Issuer shall furnish to the Trustee an Officer’s Certificate stating that all conditions precedent, if any, provided for in this Indenture (including any covenant compliance with which constitutes a condition precedent) relating to the proposed action have been complied with and, other than in connection with the addition of a new Guarantor or parent guarantor, an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than pursuant to Section 1004(a)) shall include:
(1) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
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SECTION 104. Form of Documents Delivered to Trustee. In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Issuer may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or opinion may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Issuer stating that the information with respect to such factual matters is in the possession of the Issuer, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
SECTION 105. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agents duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Issuer. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and conclusive in favor of the Trustee and the Issuer, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner that the Trustee deems sufficient.
(c) The principal amount and serial numbers of Notes held by any Person, and the date of holding the same, shall be proved by the Note Register.
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(d) If the Issuer shall solicit from the Holders any request, demand, authorization, direction, notice, consent, waiver or other Act, the Issuer shall fix in advance a record date for the determination of Holders entitled to give such request, demand, authorization, direction, notice, consent, waiver or other Act. Such record date shall be a date not earlier than the date 30 days prior to the first solicitation of Holders generally in connection therewith and not later than the date such solicitation is completed. Upon fixing such record date, such request, demand, authorization, direction, notice, consent, waiver or other Act may be given before or after such record date, but only the Holders of record at the close of business on such record date shall be deemed to be Holders for the purposes of determining whether Holders of the requisite proportion of Outstanding Notes have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other Act, and for that purpose the Outstanding Notes shall be computed as of such record date; provided, that no such authorization, agreement or consent by the Holders on such record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than eleven months after the record date. Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Note shall bind every future Holder of the same Note and the Holder of every Note issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee, the Issuer or any Guarantor in reliance thereon, whether or not notation of such action is made upon such Note.
SECTION 106. Notices, Etc., to Trustee, Issuer, any Guarantor and Agent. Any request, demand, authorization, direction, notice, consent, waiver or other Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Issuer or any Guarantor shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing via facsimile, email in PDF format or mailed, first class postage prepaid, or delivered by recognized overnight courier, to or with the Trustee at the Corporate Trust Office; or
(2) the Issuer or any Guarantor by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if made, given, furnished or delivered in writing via facsimile, or email in PDF or mailed, first class postage prepaid, or delivered by recognized overnight courier, to the Issuer or such Guarantor addressed to Advanced Drainage Systems, Inc., Hilliard, Ohio 43026, or at any other address previously furnished in writing to the Trustee by the Issuer or such Guarantor.
A copy of all notices to any Agent shall be sent to the Trustee at the address show above. Any Person may change its address by giving notice of such change as set forth herein.
SECTION 107. Notice to Holders; Waiver. Where this Indenture provides for notice of any event to Holders by the Issuer or the Trustee, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and delivered electronically or mailed, first class postage prepaid, to each Holder affected by such event, at his address as it appears in the Note Register, not later than the latest date, and not earlier than the earliest date, prescribed
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for the giving of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Notices given by publication shall be deemed given on the first date on which publication is made, notices given by first-class mail, postage prepaid, shall be deemed given five calendar days after mailing; notices sent by overnight delivery service will be deemed given when delivered; and notices given electronically shall be deemed given when sent. Any notices required to be given to the holders of Notes that are in global form will be given to the Depository.
The Trustee agrees to accept and act upon instructions or directions pursuant to this Indenture sent by unsecured e- mail, pdf, facsimile transmission or other similar unsecured electronic methods, provided, however, that the Trustee shall have received an incumbency certificate listing persons designated to give such instructions or directions and containing specimen signatures of such designated persons, which such incumbency certificate shall be amended and replaced whenever a person is to be added or deleted from the listing. If the Issuer elects to give the Trustee e-mail or facsimile instructions (or instructions by a similar electronic method) and the Trustee in its discretion elects to act upon such instructions, the Trustee’s understanding of such instructions shall be deemed controlling. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such instructions notwithstanding such instructions conflict or are inconsistent with a subsequent written instruction. The Issuer agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk or interception and misuse by third parties.
In case by reason of the suspension of or irregularities in regular mail service or by reason of any other cause, it shall be impracticable to mail notice of any event to Holders when such notice is required to be given pursuant to any provision of this Indenture, then any manner of giving such notice as shall be satisfactory to the Trustee shall be deemed to be a sufficient giving of such notice for every purpose hereunder.
Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
SECTION 108. Effect of Headings and Table of Contents. The Article and Section headings herein and the Table of Contents are for convenience of reference only, are not intended to be considered a part hereof and shall not affect the construction hereof.
SECTION 109. Successors and Assigns. All agreements of the Issuer in this Indenture and the Notes will bind its successors. All agreements of the Trustee in this Indenture will bind its successors. All agreements of each Guarantor in this Indenture will bind its successors, except as otherwise provided in Section 1208 hereof.
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SECTION 110. Severability Clause. In case any provision in this Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture. Nothing in this Indenture or in the Notes, express or implied, shall give to any Person, other than the parties hereto, any Paying Agent, any Note Registrar and their successors hereunder and the Holders any benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION 112. Governing Law. This Indenture, the Notes and any Guarantee shall be governed by and construed in accordance with the laws of the State of New York. THE PARTIES HERETO AGREE TO SUBMIT TO THE JURISDICTION OF ANY UNITED STATES FEDERAL OR STATE COURT LOCATED IN THE BOROUGH OF MANHATTAN, IN THE CITY OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE OR THE NOTES.
SECTION 113. Legal Holidays. In any case where any Interest Payment Date, Redemption Date or Stated Maturity or Maturity of any Note shall not be a Business Day, then (notwithstanding any other provision of this Indenture or of the Notes) payment of principal (or premium, if any) or interest need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the Interest Payment Date, Redemption Date, or at the Stated Maturity or Maturity; provided, that no interest shall accrue for purposes of such payment for the period from and after such Interest Payment Date, Redemption Date, Stated Maturity or Maturity, as the case may be.
SECTION 114. No Personal Liability of Directors, Managers, Officers, Employees and Stockholders. No director, manager, officer, employee, incorporator, member or stockholder of the Issuer or any Guarantor or any of their parent companies shall have any liability for any obligations of the Issuer or the Guarantors under the Notes, the Guarantees or this Indenture or for any claim based on, in respect of, or by reason of such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability to the fullest extent permitted by applicable law. The waiver and release are part of the consideration for issuance of the Notes.
SECTION 115. Counterparts. This Indenture may be executed in any number of counterparts, each of which shall be original; but such counterparts shall together constitute but one and the same instrument. One signed copy is enough to prove this Indenture. The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
SECTION 116. USA PATRIOT Act. In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including, without limitation, those relating to the funding of terrorist activities and money laundering, including Section 326 of the USA PATRIOT Act of the United States (“Applicable AML Law”), the Trustee is required to obtain, verify, record and update certain information relating to individuals and entities which maintain a business relationship with the Trustee.
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Accordingly, each of the parties agree to provide to the Trustee, upon its request from time to time such identifying information and documentation as may be available for such party in order to enable the Trustee to comply with Applicable AML Law.
SECTION 117. Waiver of Jury Trial. EACH OF THE ISSUER, ANY GUARANTOR AND THE TRUSTEE AND EACH HOLDER, BY ITS ACCEPTANCE THEREOF, THEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREBY OR HEREBY.
SECTION 118. Force Majeure. In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts that are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
ARTICLE TWO
NOTE FORMS
SECTION 201. Form and Dating. Provisions relating to the Initial Notes are set forth in Annex I attached hereto (the “Appendix”) which is hereby incorporated in, and expressly made part of, this Indenture. The Initial Notes and the Trustee’s certificate of authentication shall be substantially in the form of Exhibit 1 to the Appendix which is hereby incorporated in, and expressly made a part of, this Indenture. The Notes may have notations, legends or endorsements required by law, stock exchange rule, agreements to which the Issuer is subject, if any, or usage (provided that any such notation, legend or endorsement is in a form reasonably acceptable to the Issuer). Each Note shall be dated the date of its authentication. The terms of the Note set forth in the Appendix are part of the terms of this Indenture.
SECTION 202. Execution, Authentication, Delivery and Dating. The Notes shall be executed on behalf of the Issuer by at least one Officer. The signature of any Officer on the Notes may be manual or facsimile signatures of the present or any future such authorized officer and may be imprinted or otherwise reproduced on the Notes.
Notes bearing the manual or facsimile signature of an individual who was at any time the proper officer of the Issuer shall bind the Issuer, notwithstanding that such individual has ceased to hold such office prior to the authentication and delivery of such Notes or did not hold such office at the date of such Notes.
At any time and from time to time after the execution and delivery of this Indenture, the Issuer may deliver Notes executed by the Issuer to the Trustee for authentication, together with an Issuer Order for the authentication and delivery of such Notes, and the Trustee in accordance with such Issuer Order shall authenticate and deliver such Notes.
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On the Issue Date, the Issuer shall deliver the Initial Notes in the aggregate principal amount of $500,000,000 executed by the Issuer to the Trustee for authentication, together with an Issuer Order for the authentication and delivery of such Notes, specifying the principal amount and registered holder of each Note, directing the Trustee to authenticate the Notes and deliver the same to the persons named in such Issuer Order and the Trustee in accordance with such Issuer Order shall authenticate and deliver such Initial Notes. At any time and from time to time after the Issue Date, the Issuer may deliver Additional Notes executed by the Issuer to the Trustee for authentication, together with an Issuer Order for the authentication and delivery of such Additional Notes, specifying the principal amount of and registered holder of each Note, directing the Trustee to authenticate the Additional Notes and deliver the same to the persons in such Issuer Order and the Trustee in accordance with such Issuer Order shall authenticate and deliver such Additional Notes. In each case (other than the issuance of the Initial Notes), the Trustee shall receive an Officer’s Certificate and an Opinion of Counsel of the Issuer that it may reasonably require in connection with such authentication of Notes. Such Issuer Order shall specify the date on which the original issue of Notes is to be authenticated. In authenticating Additional Notes and accepting the additional responsibilities under this Indenture in relation to such Additional Notes, the Trustee shall receive, and be fully protected in relying on (without further investigation or verification):
(a) A copy of the resolution or resolutions of the Board of Directors in or pursuant to which the terms and form of the Notes were established, certified by the Secretary or an Assistant Secretary of the Issuer as having been duly adopted by the Board of Directors and to be in full force and effect as of the date of such certificate, or if the terms and form of such Notes are established by an Officer’s Certificate pursuant to general authorization of the Board of Directors, such Officer’s Certificate;
(b) an executed supplemental indenture, if any;
(c) an Officer’s Certificate delivered in accordance with Section 103; and
(d) an Opinion of Counsel which shall state:
(1) that the form and terms of such Notes have been established in conformity with the other provisions of this Indenture; and
(e) that such Notes, when authenticated and delivered by the Trustee and issued by the Issuer in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Issuer, enforceable in accordance with their terms, subject to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting the enforcement of creditors’ rights and to general equity principles.
Each Note shall be dated the date of its authentication.
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No Note shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Note a certificate of authentication substantially in the form provided for herein duly executed by the Trustee by manual signature of an authorized signatory, and such certificate upon any Note shall be conclusive evidence, and the only evidence, that such Note has been duly authenticated and delivered hereunder and is entitled to the benefits of this Indenture.
In case the Issuer or any Guarantor, pursuant to Article Eight of this Indenture, shall be consolidated or merged with or into any other Person or shall convey, transfer, lease or otherwise dispose of its properties and assets substantially as an entirety to any Person, and the successor Person resulting from such consolidation, or surviving such merger, or into which the Issuer or such Guarantor shall have been merged, or the Person which shall have received a conveyance, transfer, lease or other disposition as aforesaid, shall have executed a supplemental indenture hereto with the Trustee pursuant to Article Eight of this Indenture, any of the Notes authenticated or delivered prior to such consolidation, merger, conveyance, transfer, lease or other disposition may, from time to time, at the request of the successor Person, be exchanged for other Notes executed in the name of the successor Person with such changes in phraseology and form as may be appropriate, but otherwise in substance of like tenor as the Notes surrendered for such exchange and of like principal amount; and the Trustee, upon Issuer Request of the successor Person, shall authenticate and deliver Notes as specified in such request for the purpose of such exchange. If Notes shall at any time be authenticated and delivered in any new name of a successor Person pursuant to this Section in exchange or substitution for or upon registration of transfer of any Notes, such successor Person, at the option of the Holders but without expense to them, shall provide for the exchange of all Notes at the time Outstanding for Notes authenticated and delivered in such new name.
The Trustee may appoint an authenticating agent acceptable to the Issuer to authenticate Notes. An authenticating agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as an Agent to deal with Holders or an affiliate of the Issuer.
ARTICLE THREE
THE NOTES
SECTION 301. Title and Terms. The aggregate principal amount of Notes which may be authenticated and issued under this Indenture is not limited; provided that any Additional Notes issued under this Indenture are issued in accordance with Sections 202, 312 and 1007 hereof, as part of the same series as the Initial Notes.
The terms and provisions contained in the Notes shall constitute, and are hereby expressly made, a part of this Indenture, and the Issuer, the Guarantors and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to the extent any provision of any Note conflicts with the express provisions of this Indenture, the provisions of this Indenture shall govern and be controlling.
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The Notes shall be known and designated as the “5.375% Senior Notes due 2034” of the Issuer. The Stated Maturity of the Notes shall be March 1, 2034, and the Notes shall bear interest at the rate of 5.375% per annum from the Issue Date, or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable on September 1, 2026 and semi-annually thereafter on March 1 and September 1 in each year and at said Stated Maturity, until the principal thereof is paid or duly provided for and to the Person in whose name the Note (or any Predecessor Note) is registered at the close of business on February 15 and August 15 immediately preceding such Interest Payment Date (each, a “Regular Record Date”).
The principal of (and premium, if any) and interest on the Notes shall be payable at the offices or agencies of the Issuer set forth in Section 302, or, at the option of the Issuer, payment of interest may be made by check mailed to the Holders of the Notes at their respective addresses set forth in the Note Register of Holders; provided that all payments of principal, premium, if any, and interest with respect to Notes represented by one or more permanent Global Notes registered in the name of or held by the Depository or its nominee will be made by wire transfer of immediately available funds to the Depository.
Holders shall have the right to require the Issuer to purchase their Notes, in whole or in part, in the event of a Change of Control pursuant to Section 1012. The Notes shall be subject to repurchase pursuant to an Asset Sale Offer as provided in Section 1013.
The Notes shall be redeemable as provided in Article Eleven.
The due and punctual payment of principal of (and premium, if any) and interest on the Notes payable by the Issuer is irrevocably unconditionally guaranteed, to the extent set forth herein, by each of the Guarantors.
SECTION 302. Note Registrar, Transfer Agent and Paying Agent. The Issuer shall maintain one or more paying agents (each, a “Paying Agent”) for the Notes in Cincinnati, Ohio. The Issuer hereby appoints the Trustee as the initial Paying Agent.
The Issuer shall be responsible for making calculations called for under the Notes, including but not limited to determination of redemption price or other amounts payable on the Notes. The Issuer will make the calculations in good faith and, absent manifest error, its calculations will be final and binding on the Holders. The Issuer will provide a schedule of its calculations to the Trustee when requested by the Trustee, and the Trustee is entitled to rely conclusively on the accuracy of the Issuer’s calculations without independent verification. The Trustee shall forward the Issuer’s calculations to any Holder of the Notes upon the written request of such Holder.
The Issuer will also maintain one or more registrars (each, a “Note Registrar”) with offices in Cincinnati, Ohio. The Issuer will also maintain a transfer agent (each, a “Transfer Agent”) in Cincinnati, Ohio. The Issuer hereby appoints the Trustee as the initial Note Registrar and Transfer Agent. The Note Registrar and the Transfer Agent shall keep a register of the Notes and of their transfer and exchange (the register maintained in such office and in any other office or agency designated pursuant to Section 1002 being herein sometimes referred to as the “Note Register”). The Note Register shall be in written form or any other form capable of being
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converted into written form within a reasonable time. At all reasonable times, the Note Register shall be open to inspection by the Trustee. The Issuer may change the Paying Agents, the Note Registrars or the Transfer Agents without prior notice to the Holders. The Issuer may have one or more co- registrars and one or more additional paying agents. The term “Note Registrar” includes any co-registrars.
The Issuer shall enter into an appropriate agency agreement with any Note Registrar or Paying Agent not a party to this Indenture. The agreement shall implement the provisions of this Indenture that relate to such agent. The Issuer shall notify the Trustee in writing of the name and address of any such agent. If the Issuer fails to maintain a Note Registrar or Paying Agent, the Trustee shall act as such and shall be entitled to appropriate compensation therefor pursuant to Section 607. The Issuer or any Affiliate thereof may act as Paying Agent or Note Registrar.
The Issuer acknowledges that neither the Trustee nor any Agent makes any representations as to the interpretation or characterization of the transactions herein undertaken for tax or any other purpose, in any jurisdiction.
SECTION 303. Denominations. The Notes shall be issuable only in registered form without coupons and only in denominations of $2,000 and any integral multiples of $1,000 in excess thereof.
SECTION 304. Temporary Notes. Pending the preparation of definitive Notes, the Issuer may execute, and upon Issuer Order the Trustee shall authenticate and deliver, temporary Notes which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Notes in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Notes may determine, as conclusively evidenced by their execution of such Notes.
If temporary Notes are issued, the Issuer will cause definitive Notes to be prepared without unreasonable delay. After the preparation of definitive Notes, the temporary Notes shall be exchangeable for definitive Notes upon surrender of the temporary Notes at the office or agency of the Issuer designated for such purpose pursuant to Section 1002, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Notes, the Issuer shall execute and the Trustee shall authenticate and deliver in exchange therefor a like principal amount of definitive Notes of authorized denominations. Until so exchanged, the temporary Notes shall in all respects be entitled to the same benefits under this Indenture as definitive Notes.
SECTION 305. Registration of Transfer and Exchange. Upon surrender for registration of transfer of any Note at the office or agency of the Issuer designated pursuant to Section 1002, the Issuer shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Notes of any authorized denomination or denominations of a like aggregate principal amount.
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At the option of the Holder, Notes may be exchanged for other Notes of any authorized denomination and of a like aggregate principal amount, upon surrender of the Notes to be exchanged at such office or agency together with endorsement, instrument of exchange and such other required deliverables in form satisfactory to the Issuer, the Note Registrar and the Trustee. Whenever any Notes are so surrendered for exchange, the Issuer shall execute, and upon receipt of an Issuer Order, the Trustee shall authenticate and deliver in accordance with such Issuer Order, the Notes which the Holder making the exchange is entitled to receive.
All Notes issued upon any registration of transfer or exchange of Notes shall be the valid obligations of the Issuer, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Notes surrendered upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of transfer or for exchange shall (if so required by the Issuer, the Note Registrar or the Trustee) be duly endorsed, or be accompanied by written instruments of transfer, in form satisfactory to the Issuer, the Note Registrar and the Trustee, duly executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange or redemption of Notes, but the Issuer may require payment of a sum sufficient to cover any taxes, fees or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Notes, other than exchanges pursuant to Sections 202, 304, 905, 1012, 1013 or 1108 not involving any transfer.
The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among Depository participants or beneficial owners of interests in any Notes in global form) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Notes. If (1) any mutilated Note is surrendered to the Trustee, or (2) the Issuer and the Trustee receive evidence to their satisfaction of the destruction, loss or theft of any Note, and there is delivered to the Issuer and the Trustee such security and/or indemnity to save each of them harmless from any claim, loss, cost or liability resulting from such lost or stolen Note, then, in the absence of written notice to the Issuer or the Trustee that such Note has been acquired by a Protected Purchaser (as defined in Section 8-303 of the Uniform Commercial Code) (a “Protected Purchaser”), the Issuer shall execute and upon Issuer Order the Trustee shall authenticate and deliver, in exchange for any such mutilated Note or in lieu of any such destroyed, lost or stolen Note, a new Note of like tenor and principal amount, bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Note has become or is about to become due and payable, the Issuer in its discretion may, instead of issuing a new Note, pay such Note.
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Upon the issuance of any new Note under this Section, the Issuer may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Note issued pursuant to this Section in lieu of any mutilated, destroyed, lost or stolen Note shall constitute an original additional contractual obligation of the Issuer and each Guarantor, whether or not the mutilated, destroyed, lost or stolen Note shall be at any time enforceable by anyone, and shall be entitled to all benefits of this Indenture equally and proportionately with any and all other Notes duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 307. Payment of Interest; Interest Rights Preserved.
(a) Interest on any Note which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name such Note (or one or more Predecessor Notes) is registered at the close of business on the Regular Record Date for such interest at the office or agency of the Issuer maintained for such purpose pursuant to Section 1002; provided that, subject to Section 301 hereof, each installment of interest may at the Issuer’s option be paid by (1) mailing a check for such interest, payable to or upon the written order of the Person entitled thereto pursuant to Section 308, to the address of such Person as it appears in the Note Register or (2) transfer to an account maintained by the payee; provided that payment by wire transfer of immediately available funds shall be required with respect to principal of, premium on, if any, and interest on, all Notes in global form and all other Notes the Holders of which shall have provided wire transfer instructions to the Issuer and the Paying Agent. If paying principal, premium, or interest on a global note, not later than 10:00 a.m. (New York City time) on the due date of any principal of or interest on any Notes of a series, or any redemption or purchase price of the Notes, the Issuer will deposit with the Paying Agent (and the Paying Agent shall have received such funds by such time) money in immediately available funds sufficient to pay such amounts, provided that if the Issuer, a Guarantor or any of their Subsidiaries is acting as paying agent, it will, on or before each due date, segregate and hold in a separate trust fund for the benefit of the Holders of the Notes of such series a sum of money sufficient to pay such amounts until paid to such Holders or otherwise disposed of as provided in this Indenture.
(b) Any interest on any Note which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date shall forthwith cease to be payable to the Holder on the Regular Record Date by virtue of having been such Holder, and such defaulted interest and (to the extent lawful) interest on such defaulted interest at the rate borne by the Notes (such defaulted interest and interest thereon herein collectively called “Defaulted Interest”) may be paid by the Issuer, at its election in each case, as provided in clause (1) or (2) below:
(1) the Issuer may elect to make payment of any Defaulted Interest to the Persons in whose names the Notes (or their respective Predecessor Notes) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Issuer shall notify the Trustee
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in writing of the amount of Defaulted Interest proposed to be paid on each Note and the date of the proposed payment, and at the same time the Issuer shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Issuer of such Special Record Date, and in the name and at the expense of the Issuer, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be given in the manner provided for in Section 107, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so given, such Defaulted Interest shall be paid to the Persons in whose names the Notes (or their respective Predecessor Notes) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following clause (2); and
(2) the Issuer may make payment of any Defaulted Interest in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed, and upon such notice as may be required by such exchange, if, after written notice given by the Issuer to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.
(c) Subject to the foregoing provisions of this Section, each Note delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Note shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Note.
SECTION 308. Persons Deemed Owners. Prior to the due presentment of a Note for registration of transfer, the Issuer, any Guarantor, the Trustee and any agent of the Issuer or the Trustee may treat the Person in whose name such Note is registered as the owner of such Note for the purpose of receiving payment of principal of (and premium, if any) and (subject to Sections 305 and 307) interest on such Note and for all other purposes whatsoever, whether or not such Note be overdue, and none of the Issuer, the Trustee or any agent of the Issuer or the Trustee shall be affected by notice to the contrary.
SECTION 309. Cancellation. All Notes surrendered for payment, redemption, registration of transfer or exchange shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be cancelled by the Trustee in accordance with its customary procedures. The Issuer may at any time deliver to the Trustee for cancellation any Notes previously authenticated and delivered hereunder which the Issuer may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Notes previously authenticated hereunder which the Issuer has not issued and sold, and all Notes so delivered shall be cancelled by the Trustee in accordance with its customary procedures. If the Issuer shall so acquire any of the Notes, however, such
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acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by such Notes unless and until the same are surrendered to the Trustee for cancellation. No Notes shall be authenticated in lieu of or in exchange for any Notes cancelled as provided in this Section, except as expressly permitted by this Indenture. All cancelled Notes held by the Trustee shall be disposed of by the Trustee in accordance with its customary procedures. Evidence or confirmation of the cancellation of such Notes shall be delivered to the Company by the Trustee upon the Company’s request. The Note Registrar shall maintain a record of all cancelled Notes in accordance with its customary procedures. The Note Registrar shall provide the Company a list of all Notes that have been cancelled from time to time as requested by the Company.
SECTION 310. Computation of Interest. Interest on the Notes shall be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 311. Transfer and Exchange. The Notes shall be issued in registered form and shall be transferable only upon the surrender of a Note for registration of transfer. When a Note is presented to the Note Registrar or a co-registrar with a request to register a transfer, the Note Registrar shall register the transfer as requested if the requirements of this Indenture and Section 8-401(a) of the Uniform Commercial Code are met. When Notes are presented to the Note Registrar or a co-registrar with a request to exchange them for an equal principal amount of Notes of other denominations, the Note Registrar shall make the exchange as requested if the same requirements are met.
The Issuer shall not be required, and without the prior written consent of the Issuer, the Note Registrar shall not be required, to register the transfer of or exchange of any Note (1) during a period beginning at the opening of business 10 days before provision of a notice of redemption of Notes and ending at the close of business on the day of such provision, (2) selected for redemption in whole or in part, (3) that has been tendered in a Change of Control Offer, Asset Sale Offer or other tender offer and (4) beginning at the opening of business on any record date and ending on the close of business on the related Interest Payment Date.
SECTION 312. CUSIP, ISIN and Common Code Numbers. The Issuer in issuing the Notes may use CUSIP, ISINs and “Common Code” numbers (in each case, if then generally in use) in addition to serial numbers, and, if so, the Trustee shall use such CUSIP, ISINs and “Common Code” numbers in addition to serial numbers in notices of redemption, repurchase or other notices to Holders as a convenience to Holders; provided that the Trustee shall have no liability for any defect in such numbers as they appear on any Note, notice or elsewhere, and provided, further, that any such notice may state that no representation is made as to the correctness of such CUSIP, ISINs and “Common Code” numbers either as printed on the Notes or as contained in any notice of a redemption or repurchase and that reliance may be placed only on the serial or other identification numbers printed on the Notes, and any such redemption or repurchase shall not be affected by any defect in or omission of such numbers. The Issuer will promptly notify the Trustee in writing of any change in the CUSIP, ISINs and “Common Code” numbers applicable to the Notes.
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SECTION 313. Issuance of Additional Notes. The Issuer may, subject to Section 1007 of this Indenture, issue additional Notes having identical terms and conditions to the Initial Notes issued on the Issue Date (the “Additional Notes”). The Initial Notes issued on the Issue Date and any Additional Notes subsequently issued shall be treated as a single class for all purposes under this Indenture; provided, that Additional Notes will not be issued with the same CUSIP, if any, as Initial Notes unless such Additional Notes are fungible with Initial Notes for U.S. Federal income tax purposes.
SECTION 314. Global Securities.
Neither the Trustee nor any Agent shall have any responsibility or liability for any actions taken or not taken by the Depository.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture. This Indenture will be discharged and will cease to be of further effect and the Trustee, at the expense of the Issuer, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture when:
(1) either,
(A) all Notes theretofore authenticated and delivered (other than (i) Notes which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 306 and (ii) Notes for whose payment money has theretofore been deposited in trust with the Trustee or any Paying Agent or segregated and held in trust by the Issuer and thereafter repaid to the Issuer or discharged from such trust, as provided in Section 1003) have been delivered to the Trustee for cancellation; or
(B) all such Notes not theretofore delivered to the Trustee for cancellation,
(i) have become due and payable by reason of the making of a notice of redemption pursuant to Section 1105 or otherwise, or
(ii) will become due and payable at their Stated Maturity within one year, or
(iii) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Issuer,
and the Issuer or any Guarantor, in the case of (i), (ii) or (iii) above, has irrevocably deposited or caused to be deposited with the Trustee in trust solely for the benefit of the Holders of the Notes, cash in U.S. dollars, U.S. dollar-denominated Government Securities, or a combination thereof, in such amounts as will be sufficient without consideration of any reinvestment of interest to pay and discharge the entire indebtedness on such Notes not theretofore delivered to the Trustee for cancellation, for principal, premium, if any, and accrued interest to the Stated Maturity or Redemption Date, as the case may be;
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(2) no Default or Event of Default (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness and, in each case, the granting of Liens in connection therewith) with respect to this Indenture or the Notes issued hereunder shall have occurred and be continuing on the date of such deposit or shall occur as a result of such deposit and such deposit shall not result in a breach or violation of, or constitute a default under the Senior Credit Facility or any other material agreement or instrument (other than this Indenture) to which the Issuer or any Guarantor is a party or by which the Issuer or any Guarantor is bound (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness and, in each case, the granting of Liens in connection therewith);
(3) the Issuer has paid or caused to be paid all sums payable by it under this Indenture;
(4) the Issuer has delivered irrevocable instructions to the Trustee under this Indenture to apply the deposited money toward the payment of such Notes at the Stated Maturity or the Redemption Date, as the case may be; and
(5) the Issuer must deliver an Officer’s Certificate and an Opinion of Counsel to the Trustee stating that all conditions precedent herein to the satisfaction and discharge of this Indenture have been satisfied.
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Issuer to the Trustee under Section 607, the obligations of the Issuer to any Authenticating Agent under Section 612 and, if money or Government Securities shall have been deposited with the Trustee pursuant to subclause (B) of clause (1) of this Section, the obligations of the Trustee under Section 402 and the last paragraph of Section 1003 shall survive such satisfaction and discharge.
SECTION 402. Application of Trust Money. Subject to the provisions of the last paragraph of Section 1003, all money or U.S. dollar-denominated Government Securities deposited with the Trustee pursuant to Section 401 shall be held in trust and applied by it, in accordance with the provisions of the Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Issuer acting as its own Paying Agent) of the principal (and premium, if any) and interest for whose payment such money or U.S. dollar-denominated Government Securities has been deposited with the Trustee; but such money or U.S. dollar-denominated Government Securities need not be segregated from other funds except to the extent required by law.
If the Trustee or Paying Agent is unable to apply any money or U.S. dollar-denominated Government Securities in accordance with Section 401 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Issuer’s and any Guarantor’s obligations under this
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Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 401 until such time as the Trustee or Paying Agent is permitted to apply all such money or U.S. dollar- denominated Government Securities in accordance with Section 401; provided that if the Issuer has made any payment of principal of (and premium, if any) or interest on any Notes because of the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money or U.S. dollar- denominated Government Securities held by the Trustee or Paying Agent.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default. “Event of Default,” wherever used herein, means any one of the following events (whatever the reason for such Event of Default and whether it be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(1) default in payment when due and payable, upon redemption, acceleration or otherwise, of principal of, or premium, if any, on the Notes issued under this Indenture;
(2) default for 30 days or more in the payment when due of interest on or with respect to the Notes issued under this Indenture;
(3) failure by the Issuer for 60 days after the receipt of written notice given by the Trustee or the Holders of not less than 25% in principal amount of the Notes then outstanding (with a copy to the Trustee) to comply, or to cause any Restricted Subsidiary to comply, with any of its obligations, covenants or agreements (other than a default referred to in clauses (1) and (2) above) contained in this Indenture or the Notes;
(4) default under any mortgage, indenture or instrument under which there is issued or by which there is secured or evidenced any Indebtedness for money borrowed by the Issuer or any Restricted Subsidiary or the payment of which is guaranteed by the Issuer or any Restricted Subsidiary, other than Indebtedness owed to the Issuer or any Restricted Subsidiary, whether such Indebtedness or guarantee now exists or is created after the issuance of the Notes, if both:
(A) such default either results from the failure to pay any principal of such Indebtedness at its stated final maturity (after giving effect to any applicable grace periods) or relates to an obligation other than the obligation to pay principal of any such Indebtedness at its stated final maturity and results in the holder or holders of such Indebtedness accelerating the final stated maturity of such Indebtedness, and
(B) the principal amount of such Indebtedness, together with the principal amount of any other such Indebtedness in default for failure to pay principal at stated final maturity (after giving effect to any applicable grace periods), or the maturity of which has been so accelerated, aggregate $100.0 million or more at any one time outstanding;
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(5) failure by the Issuer or any Significant Subsidiary to pay final judgments aggregating in excess of $100.0 million (net of amounts covered by insurance policies issued by reputable insurance companies), which final judgments remain unpaid, undischarged and unstayed for a period of more than 60 days after such judgment becomes final and non-appealable, and in the event such judgment is covered by insurance, an enforcement proceeding has been commenced by any creditor upon such judgment or decree which is not promptly stayed;
(6) any of the following events with respect to the Issuer or any Significant Subsidiary:
(A) the Issuer or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a custodian of it or for any substantial part of its property;
(iv) takes any comparable action under any foreign laws relating to insolvency; or
(B) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(i) is for relief against the Issuer or any Significant Subsidiary in an involuntary case;
(ii) appoints a custodian of the Issuer or any Significant Subsidiary or for any substantial part of its property; or
(iii) orders the winding up or liquidation of the Issuer or any Significant Subsidiary; and
(iv) the order or decree remains unstayed and in effect for 60 days; or
(7) the Guarantee of any Guarantor that is a Significant Subsidiary shall for any reason cease to be in full force (except as contemplated by the terms thereof or hereof) and effect or be declared null and void or any responsible officer of any Guarantor that is a Significant Subsidiary denies that it has any further liability under its Guarantee or gives written notice to such effect, other than by reason of the termination of the related Indenture or the release of any such Guarantee in accordance with this Indenture.
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SECTION 502. Acceleration of Maturity; Rescission and Annulment.
(a) If any Event of Default (other than an Event of Default specified in Section 501(6) above with respect to the Issuer) occurs and is continuing under this Indenture, the Trustee or the Holders of at least 25% in principal amount of the Outstanding Notes issued under this Indenture may declare the principal, premium, if any, interest and any other monetary obligations on all the Outstanding Notes to be due and payable immediately, by a notice to the Issuer (and to the Trustee if given by Holders). The Trustee is not deemed to have any knowledge of the occurrence of, or the cure of, any Event of Default, except, and then only to the extent that, the Trustee has received written notice of a Default or Event of Default from the Issuer or a Holder. The Trustee is under no obligation to investigate or confirm any Default or Event of Default.
(b) Any notice of Default, notice of acceleration or instruction to the Trustee to provide a notice of Default, notice of acceleration or take any other action (a “Noteholder Direction”) provided by any one or more Holders (each a “Directing Holder”) must be accompanied by a written representation from each such Holder delivered to the Issuer and the Trustee that such Holder is (or, in the case such Holder is the Depository or its nominee, that such Holder is being instructed solely by beneficial owners that are) not Net Short (a “Position Representation”), which representation, in the case of a Noteholder Direction relating to the delivery of a notice of Default (a “Default Direction”) shall be deemed a continuing representation until the resulting Event of Default is cured or otherwise ceases to exist or the Notes are accelerated. In addition, each Directing Holder is deemed, at the time of providing a Noteholder Direction, to covenant to provide the Issuer with such other information as the Issuer may reasonably request from time to time in order to verify the accuracy of such Noteholder’s Position Representation within five Business Days of request therefor (a “Verification Covenant”). In any case in which the Holder is the Depository or its nominee, any Position Representation or Verification Covenant required hereunder shall be provided by the beneficial owner of the Notes in lieu of the Depository or its nominee and the Depository shall be entitled to conclusively rely on such Position Representation and Verification Covenant in delivering its direction to the Trustee.
(c) If, following the delivery of a Noteholder Direction, but prior to acceleration of the Notes, the Issuer determines in good faith that there is a reasonable basis to believe a Directing Holder was, at any relevant time, in breach of its Position Representation and provides to the Trustee an Officer’s Certificate stating that the Issuer has initiated litigation in a court of competent jurisdiction seeking a determination that such Directing Holder was, at such time, in breach of its Position Representation, and seeking to invalidate any Event of Default or acceleration (or notice thereof) that resulted from the applicable Noteholder Direction, the cure period with respect to such Event of Default shall be automatically stayed and the cure period with respect to such Event of Default shall be automatically reinstituted and any remedy stayed pending a final and non-appealable determination of a court of competent jurisdiction on such matter. If, following the delivery of a Noteholder Direction, but prior to acceleration of the Notes, the Issuer provides to the Trustee an Officer’s Certificate stating that a Directing Holder failed to
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satisfy its Verification Covenant, the cure period with respect to such Default shall be automatically stayed and the cure period with respect to any Default or Event of Default that resulted from the applicable Noteholder Direction shall be automatically reinstituted and any remedy stayed pending satisfaction of such Verification Covenant. Any breach of the Position Representation shall result in such Holder’s participation in such Noteholder Direction being disregarded; and, if, without the participation of such Holder, the percentage of Notes held by the remaining Holders that provided such Noteholder Direction would have been insufficient to validly provide such Noteholder Direction, such Noteholder Direction shall be void ab initio (other than any indemnity such directing Holder may have offered the Trustee), with the effect that such Event of Default shall be deemed never to have occurred, acceleration voided and the Trustee shall be deemed not to have received such Noteholder Direction or any notice of such Default or Event of Default
(d) Notwithstanding anything in paragraphs (b) and (c) above to the contrary, any Noteholder Direction delivered to the Trustee during the pendency of an Event of Default as the result of a bankruptcy or similar proceeding shall not require compliance with the foregoing paragraphs.
(e) For the avoidance of doubt, the Trustee shall be entitled to conclusively rely on any Noteholder Direction delivered to it in accordance with this Indenture, shall have no duty to inquire as to or investigate the accuracy of any Position Representation, to enforce compliance with any Verification Covenant, to verify any statements in any Officer’s Certificate delivered to it, or otherwise make calculations, investigations or determinations with respect to Derivative Instruments, Net Shorts, Long Derivative Instruments, Short Derivative Instruments or otherwise, or with respect to any determination of whether such Noteholder Direction was insufficient as a result of any breach of the Position Representation. The Trustee shall have no liability to the Issuer, any Holder or any other Person in acting in good faith on a Noteholder Direction.
(f) Upon the effectiveness of a declaration under 502(a), such principal and interest will be due and payable immediately. Notwithstanding the foregoing, in the case of an Event of Default arising under Section 501(6) with respect to the Issuer, all Outstanding Notes will become due and payable without further action or notice. The Trustee may withhold from the Holders notice of any continuing Default or Event of Default, except a Default or Event of Default relating to the payment of principal, premium, if any, or interest if it determines that withholding notice is in the interest of the Holders. In addition, the Trustee shall have no obligation to accelerate the Notes if the Trustee determines acceleration is not in the best interest of the Holders of the Notes.
(g) At any time after a declaration of acceleration has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter provided in this Article, the Holders of a majority in aggregate principal amount of the Outstanding Notes, by notice to the Trustee, may rescind and annul such declaration and its consequences, so long as such rescission and annulment would not conflict with any judgment of a court of competent jurisdiction, if:
(1) the Issuer has paid or deposited with the Trustee a sum sufficient to pay:
(A) all overdue interest on all Outstanding Notes,
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(B) all unpaid principal of (and premium, if any, on) any Outstanding Notes which has become due otherwise than by such declaration of acceleration, and interest on such unpaid principal at the rate borne by the Notes,
(C) to the extent that payment of such interest is lawful, interest on overdue interest at the rate borne by the Notes, and
(D) all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel; and
(2) Events of Default, other than the non-payment of amounts of principal of (or premium, if any, on) or interest on Notes, which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 513,
no such rescission shall affect any subsequent default or impair any right consequent thereon.
(h) Notwithstanding the preceding paragraph, in the event of any Event of Default specified in Section 501(4) above, such Event of Default and all consequences thereof (excluding any resulting payment default, other than as a result of acceleration of the Notes) shall be annulled, waived and rescinded, automatically and without any action by the Trustee or the Holders, if within 20 days after such Event of Default arose,
(1) the Indebtedness or guarantee that is the basis for such Event of Default has been discharged, or
(2) the holders thereof have rescinded or waived the acceleration, notice or action (as the case may be) giving rise to such Event of Default, or
(3) if the default that is the basis for such Event of Default has been cured.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee. The Issuer covenants that if:
(1) default is made in the payment of any installment of interest on any Note when such interest becomes due and payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if any, on) any Note at the Maturity thereof, the Issuer will, upon demand of the Trustee, pay to the Trustee for the benefit of the Holders of such Notes, the whole amount then due and payable on such Notes for principal (and premium, if any) and interest, and interest on any overdue principal (and premium, if any) and, to the extent that payment of such interest shall be legally enforceable, upon any overdue installment of interest, at the rate borne by the Notes, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
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If the Issuer fails to pay such amounts forthwith upon such demand, the Trustee, in its own name as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Issuer, any Guarantor or any other obligor upon the Notes and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Issuer, any Guarantor or any other obligor upon the Notes, wherever situated.
If an Event of Default occurs and is continuing, the Trustee may proceed to protect and enforce its rights and the rights of the Holders under this Indenture and the Guarantees by such appropriate judicial proceedings as the Trustee shall deem necessary to protect and enforce any such rights, including seeking recourse against any Guarantor, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy, including seeking recourse against any Guarantor.
SECTION 504. Trustee May File Proofs of Claim. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Issuer or any other obligor including any Guarantor, upon the Notes or the property of the Issuer or of such other obligor or their creditors, the Trustee (irrespective of whether the principal of the Notes shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Issuer for the payment of overdue principal, premium, if any, or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise,
(1) to file and prove a claim for the whole amount of principal (and premium, if any) and interest owing and unpaid in respect of the Notes and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding, and
(2) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding. The Trustee may, on behalf of the Holders, vote for the election of a trustee in bankruptcy or similar official and be a member of a creditors’ committee or other similar committee.
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SECTION 505. Trustee May Enforce Claims Without Possession of Notes. All rights of action and claims under this Indenture or the Notes may be prosecuted and enforced by the Trustee without the possession of any of the Notes or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name and as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected. Any money or property collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal (or premium, if any) or interest, upon presentation of the Notes and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and its Agents (including any predecessor Trustee) under Section 607;
SECOND: To the payment of the amounts then due and unpaid for principal of (and premium, if any) and interest on the Notes in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Notes for principal (and premium, if any) and interest, respectively; and
THIRD: The balance, if any, to the Issuer or as a court of competent jurisdiction may direct in writing; provided that all sums due and owing to the Holders and the Trustee have been paid in full as required by this Indenture.
The Trustee may fix a record date and payment date for any payment to Holders of Notes pursuant to this Section 506.
SECTION 507. Limitation on Suits. Except to enforce the right to receive payment of principal, premium, if any, or interest when due, no Holder shall pursue any remedy with respect to this Indenture or the Notes, unless:
(1) such Holder has previously given the Trustee notice that an Event of Default is continuing;
(2) Holders of at least 25% in principal amount of the Outstanding Notes have requested the Trustee to pursue the remedy;
(3) such Holders have offered the Trustee security and/or indemnity satisfactory to it against any loss, liability or expense;
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(4) the Trustee has not complied with such request within 60 days after the receipt thereof and the offer of security and/or indemnity satisfactory to it against any loss, liability or expense; and
(5) Holders of a majority in principal amount of the Outstanding Notes have not given the Trustee a direction inconsistent with such request within such 60-day period,
it being understood and intended that no one or more Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture or the Guarantees to affect, disturb or prejudice the rights of any other Holders, or to obtain or to seek to obtain priority or preference over any other Holders or to enforce any right under this Indenture or the Guarantees, except in the manner herein provided and for the equal and ratable benefit of all the Holders (it being further understood that the Trustee does not have an affirmative duty to ascertain whether or not such actions or forbearances are unduly prejudicial to such Holders).
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest. Notwithstanding any other provision in this Indenture, the Holder shall have the right, which is absolute and unconditional, to receive payment, as provided herein (including, if applicable, Article Eleven) and in such Note of the principal of (and premium, if any) and (subject to Section 307) interest on such Note on the respective Stated Maturities expressed in such Note (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment on or after such respective dates, and such rights shall not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies. If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture or the Guarantees and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Issuer, any Guarantor, any other obligor of the Notes, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative. Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes in the last paragraph of Section 306, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver. No delay or omission of the Trustee or of any Holder of any Note to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
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SECTION 512. Control by Holders. The Holders of a majority in principal amount of the Outstanding Notes shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or of exercising any trust or power conferred on the Trustee with respect to the Notes; provided that:
(1) such direction shall not be in conflict with any rule of law or with this Indenture, and such Holders have complied with Section 603(f),
(2) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might involve it in personal liability or be unduly prejudicial to the Holders not consenting (it being understood that the Trustee does not have an affirmative duty to ascertain whether or not such actions or inactions are unduly prejudicial to such Holders).
SECTION 513. Waiver of Past Defaults. Subject to Sections 508 and 902, the Holders of not less than a majority in principal amount of the Outstanding Notes by written notice to the Trustee may on behalf of the Holders of all such Notes waive any existing Default or Event of Default and its consequences hereunder (except (1) a continuing Default or Event of Default in the payment of interest on, premium, if any, or the principal of any such Note held by a non-consenting Holder, or (2) in respect of a covenant or provision hereof or in any Guarantee which under Article Nine cannot be modified or amended without the consent of the Holder of each Outstanding Note affected which shall require the consent of all Holder of the Notes) and rescind any acceleration and its consequences with respect to the Notes; provided such rescission would not conflict with any judgment of a court of competent jurisdiction.
Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture, but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon.
SECTION 514. Waiver of Stay or Extension Laws. Each of the Issuer, the Guarantors and any other obligor on the Notes covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and each of the Issuer, the Guarantors and any other obligor on the Notes (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
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SECTION 515. Undertaking for Costs. In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorney’s fees and expenses, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 515 does not apply to a suit by the Trustee, a suit by a Holder relating to right to payment hereof, or a suit by Holders of more than 10% in principal amount of the then Outstanding Notes.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Duties of the Trustee.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions specifically required by any provision hereof to be provided to it, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture, but not to verify the contents thereof.
(b) If an Event of Default has occurred and is continuing of which a Responsible Officer has actual knowledge or of which written notice of such Event of Default shall have been given to a Responsible Officer by the Issuer, any other obligor of the Notes or by Holders of at least 25% of the aggregate principal amount of the Notes, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs.
(c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that
(1) this paragraph (c) shall not be construed to limit the effect of paragraph (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved in a court of competent jurisdiction that the Trustee was negligent in ascertaining the pertinent facts; and
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(3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of a majority in aggregate principal amount of the Outstanding Notes relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
(d) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 601.
(e) No provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers vested in it by this Indenture, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
SECTION 602. Notice of Defaults. Within 90 days after the earlier of receipt from the Issuer of notice of the occurrence of any Default or Event of Default hereunder or the date when such Default or Event of Default becomes known to the Trustee, the Trustee shall transmit notice of such Default or Event of Default hereunder known to the Trustee, unless such Default or Event of Default shall have been cured or waived; provided that, except in the case of a Default or Event of Default in the payment of the principal of (or premium, if any, on) or interest on any Note, the Trustee shall be protected in withholding such notice if and so long as the Trustee in good faith determines that the withholding of such notice is in the best interest of the Holders.
SECTION 603. Certain Rights of Trustee.
(a) The Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document (whether in original or facsimile form) delivered to it by the Issuer, any Holder, any legal counsel or any third party retained by or acting on behalf of any of the foregoing, believed by it to be genuine and to have been signed or presented by the proper party or parties, without further inquiry. The Trustee will not perform, and has no obligation to perform, calculations or determinations of compliance with respect to any covenants or with respect to the availability of any basket or ratio under this Indenture.
(b) Any request or direction of the Issuer mentioned herein shall be sufficiently evidenced by an Issuer Request or Issuer Order and any resolution of the Board of Directors may be sufficiently evidenced by a certified Board Resolution.
(c) Whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and conclusively rely upon an Officer’s Certificate or Opinion of Counsel.
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(d) The Trustee shall not be charged with knowledge of any fact, Default or Event of Default with respect to the Notes unless either (i) a Responsible Officer shall have actual knowledge of such Default or Event of Default or (ii) written notice of such fact, Default or Event of Default shall have been received by a Responsible Officer and references this Indenture and the Notes. Delivery of reports to the Trustee pursuant to Section 1005 shall not constitute knowledge of, or notice to, the Trustee of the information contained therein.
(e) The Trustee may consult with counsel of its own selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel or Opinion of Counsel.
(f) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders of the Notes pursuant to this Indenture, unless such Holders shall have offered to the Trustee security and/or indemnity satisfactory to it against any loss, liability or expense.
(g) The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, or inquire as to the performance by the Issuer or the Guarantors of any of their covenants in this Indenture or inquire as to the performance by the Issuer or the Guarantors of any of their covenants in this Indenture, but the Trustee, may make such further inquiry or investigation into such facts or matters, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Issuer, personally or by agent or attorney at the expense of the Issuer and shall incur no liability of any kind by reason of such inquiry or investigation.
(h) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder.
(i) The Trustee shall not be liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture.
(j) The rights, privileges, protections, immunities and benefits given to the Trustee, including its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder whether as an Agent or otherwise, and each agent, custodian and other Person employed to act hereunder.
(k) The Trustee may request that the Issuer deliver an Incumbency Certificate substantially in the form of Exhibit B hereto setting forth the names of individuals or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Incumbency Certificate may be signed by any person authorized to sign an Officer’s Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded.
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(l) The Trustee shall not be required to give any note, bond or surety in respect of the execution of the trusts and powers under this Indenture.
(m) In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its reasonable control, including, without limitation, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunction of utilities, third-party communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices to resume performance as soon as practicable under the circumstances.
(n) The permissive right of the Trustee to take actions permitted by this Indenture shall not be construed as an obligation or duty to do so.
(o) In no event shall the Trustee be responsible or liable for special, punitive, indirect, or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.
SECTION 604. Trustee Not Responsible for Recitals or Issuance of Notes. The recitals contained herein and in the Notes, except for the Trustee’s certificates of authentication, shall be taken as the statements of the Issuer, and neither the Trustee nor any Agent assumes responsibility for their correctness. Neither the Trustee nor any Agent makes representations as to the validity or sufficiency of this Indenture or of the Notes, except that the Trustee represents that it is duly authorized to execute and deliver this Indenture, authenticate the Notes and perform its obligations hereunder. Neither the Trustee nor any Agent shall be accountable for the use or application by the Issuer of Notes or the proceeds thereof or the Offering Document or any other documents used in connection with the sale or distribution of the Notes.
SECTION 605. May Hold Notes. The Trustee, any Paying Agent, any Note Registrar or any other agent of the Issuer or of the Trustee, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with the Issuer with the same rights it would have if it were not the Trustee, Paying Agent, Note Registrar or such other agent.
SECTION 606. Money Held in Trust. Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed in writing with the Issuer.
SECTION 607. Compensation and Reimbursement. The Issuer and the Guarantors, jointly and severally, agree:
(1) to pay to the Trustee from time to time such compensation as shall be agreed in writing between the Issuer and the Trustee for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
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(2) except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as shall be determined to have been caused by its own negligence or willful misconduct; and
(3) to indemnify the Trustee and any predecessor Trustee for, and to hold it harmless against, any and all loss, liability, claim, damage or expense, including taxes (other than the taxes based on the income of the Trustee) incurred without negligence or willful misconduct on its part arising out of or in connection with the acceptance or administration of this trust, including the reasonable costs and expenses of defending itself against any claim regardless of whether the claim is asserted by the Issuer, a Guarantor, a Holder or any other Person or liability in connection with the exercise or performance of any of its powers or duties hereunder, including the reasonable costs and expenses of enforcing this Indenture or a Guarantee against the Issuer or a Guarantor (including this Section 607).
The Trustee shall notify the Issuer promptly of any claim asserted against the Trustee or any of its agents for which it may seek indemnity. Failure to provide such notice shall not relieve the Issuer of its obligations in this Section 607 unless the failure to notify the Issuer impairs the Issuer’s ability to defend such claim. The Issuer may, at the request of the Trustee, defend the claim and the Trustee shall cooperate in the defense; provided that the Trustee and its agents subject to the claim may have separate counsel and the Issuer shall pay the reasonable fees and expenses of such counsel; provided however, that the Issuer shall not be required to pay such fees and expenses if the Issuer assumes the Trustee’s defense and there is no conflict of interest between the Issuer and the Trustee and its agents subject to the claim in connection with such defenses, as reasonably determined by the Trustee. The Issuer need not pay for any settlement made without its written consent.
The obligations of the Issuer and the Guarantors under this Section to compensate the Trustee, to pay or reimburse the Trustee for expenses, disbursements and advances and to indemnify and hold harmless the Trustee shall constitute additional indebtedness hereunder and shall survive the satisfaction and discharge of this Indenture and resignation or removal of the Trustee. As security for the performance of such obligations of the Issuer, the Trustee shall have a claim prior to the Notes upon all property and funds held or collected by the Trustee as such, except funds held in trust solely for the benefit of the Holders entitled thereto for the payment of principal of (and premium, if any) or interest on particular Notes.
When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 501(6), the expenses (including the reasonable charges and expenses of its counsel) of and the compensation for such services are intended to constitute expenses of administration under any applicable Bankruptcy Law. “Trustee” for the purposes of this Section 607 shall include any predecessor Trustee and the Trustee in each of its capacities
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hereunder and each agent, custodian and other person employed to act hereunder as permitted by this Indenture; provided, however, that the negligence or willful misconduct of any predecessor Trustee hereunder shall not affect the rights of any other successor Trustee hereunder (other than a successor Trustee that is successor by merger or consolidation to such predecessor Trustee).
The provisions of this Section shall survive the satisfaction and discharge of this Indenture and resignation or removal of the Trustee.
SECTION 608. Corporate Trustee Required; Eligibility. There shall be at all times a Trustee hereunder which shall have a combined capital and surplus of at least $50,000,000. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of federal, State, territorial or District of Columbia supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.
SECTION 609. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 610.
(b) The Trustee may resign at any time by giving written notice thereof to the Issuer. Upon receiving such notice of resignation, the Issuer shall promptly appoint a successor trustee by written instrument, a copy of which shall be delivered to the resigning Trustee and a copy to the successor Trustee. If the instrument of acceptance by a successor Trustee required by Section 610 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition, at the expense of the Issuer, any court of competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by the Act of the Holders of not less than a majority in principal amount of the Outstanding Notes, delivered to the Trustee and to the Issuer. If the instrument of acceptance by a successor Trustee required by Section 610 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition, at the expense of the Issuer, any court of competent jurisdiction for the appointment of a successor Trustee.
(d) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, the Issuer shall promptly appoint a successor Trustee. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee shall be appointed by the Act of the Holders of a majority in principal amount of the Outstanding Notes delivered to the Issuer and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment, become the successor Trustee and supersede the successor Trustee appointed by the Issuer. If no successor Trustee shall have been so appointed by the Issuer or the Holders and accepted appointment in the manner hereinafter provided, any Holder who has been a bona fide Holder for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee.
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(e) The Issuer shall give notice of each resignation and each removal of the Trustee and each appointment of a successor Trustee to the Holders in the manner provided for in Section 107. Each notice shall include the name of the successor Trustee and the address of its Corporate Trust Office.
SECTION 610. Acceptance of Appointment by Successor.
(a) Every successor Trustee appointed hereunder shall execute, acknowledge and deliver to the Issuer and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on request of the Issuer or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder. Upon request of any such successor Trustee, the Issuer shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts.
(b) No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article.
SECTION 611. Merger, Conversion, Consolidation or Succession to Business. Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all of the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder; provided such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Notes shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Notes so authenticated with the same effect as if such successor Trustee had itself authenticated such Notes. In case at that time any of the Notes shall not have been authenticated, any successor Trustee may authenticate such Notes either in the name of any predecessor hereunder or in the name of the successor Trustee. In all such cases such certificates shall have the full force and effect which this Indenture provides for the certificate of authentication of the Trustee shall have; provided that, the right to adopt the certificate of authentication of any predecessor Trustee or to authenticate Notes in the name of any predecessor Trustee shall apply only to its successor or successors by merger, conversion or consolidation.
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SECTION 612. Appointment of Authenticating Agent. At any time when any of the Notes remain Outstanding, the Trustee may appoint one or more agents (each an “Authenticating Agent”) with respect to the Notes which shall be authorized to act on behalf of the Trustee to authenticate Notes and the Trustee shall give written notice of such appointment to all Holders of Notes with respect to which such Authenticating Agent will serve, in the manner provided for in Section 107. Notes so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Any such appointment shall be evidenced by an instrument in writing signed by an authorized signatory of the Trustee, and a copy of such instrument shall be promptly furnished to the Issuer. Wherever reference is made in this Indenture to the authentication and delivery of Notes by the Trustee or the Trustee’s certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the Issuer.
Any corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to all or substantially all the corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent; provided such corporation shall be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and to the Issuer. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Issuer. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Issuer and shall give written notice of such appointment to all Holders of Notes, in the manner provided for in Section 107. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section.
The Issuer agrees to pay to each Authenticating Agent from time to time such compensation for its services under this Section as shall be agreed in writing between the Issuer and such Authenticating Agent.
If an appointment is made pursuant to this Section, the Notes may have endorsed thereon, in addition to the Trustee’s certificate of authentication, an alternate certificate of authentication in the following form:
This is one of the Notes designated therein referred to in the within-mentioned Indenture.
| U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee | ||||||
| Date: _________________ | By: | |||||
| as Authenticating Signatory | ||||||
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ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE AND ISSUER
SECTION 701. Issuer to Furnish Trustee Names and Addresses. The Issuer will furnish or cause to be furnished to the Trustee:
(1) semiannually, not more than 10 days after each Regular Record Date, a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders as of such Regular Record Date; and
(2) at such other times as the Trustee may reasonably request in writing, within 30 days after receipt by the Issuer of any such request, a list of similar form and content to that in clause (1) hereof as of a date not more than 15 days prior to the time such list is furnished;
provided that, if and so long as the Trustee shall be a Note Registrar, no such list need be furnished.
SECTION 702. [Reserved].
ARTICLE EIGHT
MERGER, CONSOLIDATION OR SALE OF
ALL OR SUBSTANTIALLY ALL ASSETS
SECTION 801. Issuer May Consolidate, Etc., Only on Certain Terms.
(a) The Issuer will not consolidate or merge with or into or dissolve (whether or not the Issuer is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to any Person unless:
(1) the Issuer is the surviving Person or the Person formed by or surviving any such consolidation or merger (if other than the Issuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a Person organized or existing under the laws of the United States, any state or territory thereof or the District of Columbia (such Person, as the case may be, being herein called the “Successor Company”);
(2) the Successor Company, if other than the Issuer, expressly assumes all the obligations of the Issuer under this Indenture and the Notes pursuant to a supplemental indenture or other documents or instruments in form reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default exists;
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(4) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the Applicable Measurement Period,
(A) the Successor Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 1007(a) or
(B) the Fixed Charge Coverage Ratio for the Successor Company and the Restricted Subsidiaries would be equal to or greater than the Fixed Charge Coverage Ratio for the Issuer and the Restricted Subsidiaries immediately prior to such transaction;
(5) each Guarantor, unless it is the other party to the transactions described above, in which case Section 802(1)(B) below shall apply, shall have by supplemental indenture confirmed that its Guarantee shall apply to such Person’s obligations under this Indenture and the Notes; and
(6) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indentures, if any, comply with this Indenture.
(b) The Successor Company shall succeed to, and be substituted for, the Issuer under this Indenture and the Notes and the Issuer will automatically be released and discharged from its obligations under this Indenture and the Notes. Notwithstanding clauses (3) and (4) of Section 801(a),
(1) any Restricted Subsidiary may consolidate with, merge into or sell, assign, transfer, lease, convey or otherwise dispose of all or part of its properties and assets to the Issuer or any Restricted Subsidiary; and
(2) the Issuer may merge with an Affiliate of the Issuer solely for the purpose of reincorporating the Issuer in any state of the United States, the District of Columbia, or any territory thereof so long as the amount of Indebtedness of the Issuer and the Restricted Subsidiaries is not increased thereby.
SECTION 802. Guarantors May Consolidate, Etc., Only on Certain Terms. Subject to Section 1208, no Guarantor shall, and the Issuer shall not permit any such Guarantor to, consolidate or merge with or into or dissolve (whether or not such Guarantor is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to any Person unless:
(1) (A) such Guarantor is the surviving Person or the Person formed by or surviving any such consolidation or merger (if other than such Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a Person organized or existing under the laws of the United States, any state, the District of Columbia or any territory thereof (such Guarantor or such Person, as the case may be, being herein called the “Successor Person”);
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(A) the Successor Person, if other than such Guarantor, expressly assumes all the obligations of such Guarantor under this Indenture and such Guarantor’s related Guarantee pursuant to a supplemental indenture or other documents or instruments in form reasonably satisfactory to the Trustee;
(B) immediately after such transaction, no Default exists; and
(C) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indentures, if any, comply with this Indenture; or
(2) the transaction is an Asset Sale that is not prohibited by Section 1013.
Subject to Section 1208, the Successor Person shall succeed to, and be substituted for, such Guarantor under this Indenture and such Guarantor’s Guarantee and such Guarantor will automatically be released and discharged from its obligations under this Indenture and such Guarantor’s Guarantee. Notwithstanding the foregoing, any Guarantor may (i) merge into or transfer all or part of its properties and assets to another Guarantor or the Issuer, (ii) merge with an Affiliate of the Issuer solely for the purpose of reincorporating or reorganizing the Guarantor in the United States, any state thereof, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Issuer and its Restricted Subsidiaries is not increased thereby or (iii) convert into a Person organized or existing under the laws of a jurisdiction in the United States.
SECTION 803. Successor Substituted. Upon any consolidation or merger, or any sale, assignment, conveyance, transfer, lease or disposition of all or substantially all of the assets of the Issuer or any Guarantor in accordance with Sections 801 and 802 hereof, the successor Person formed by such consolidation or into which the Issuer or such Guarantor, as the case may be, is merged or the successor Person to which such sale, assignment, conveyance, transfer, lease or disposition is made, shall succeed to, and be substituted for, and may exercise every right and power of, the Issuer or such Guarantor, as the case may be, under this Indenture or the Guarantees, as the case may be, with the same effect as if such successor Person had been named as the Issuer or such Guarantor, as the case may be, herein or the Guarantees, as the case may be. When a successor Person assumes all obligations of its predecessor hereunder, the Notes or the Guarantees, as the case may be, such predecessor shall be released from all obligations; provided that in the event of a transfer or lease, the predecessor shall not be released from the payment of principal and interest or other obligations on the Notes or the Guarantees, as the case may be.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Amendments or Supplements Without Consent of Holders. Without the consent of any Holder, the Issuer, any Guarantor (with respect to any amendment relating to its Guarantee) and the Trustee may amend or supplement this Indenture, the Notes and any related Guarantee, in form satisfactory to the Trustee, for any of the following purposes:
(1) to cure any ambiguity, omission, mistake, defect or inconsistency;
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(2) to provide for uncertificated Notes in addition to or in place of certificated Notes, provided, that the uncertificated Notes are issued in registered form for purposes of Section 163(f) of the Code;
(3) to comply with Article Eight hereof;
(4) to provide for the assumption of the Issuer’s or any Guarantor’s obligations to Holders;
(5) to make any change that would provide any additional rights or benefits to the Holders or that does not adversely affect the legal rights under this Indenture of any such Holder;
(6) to secure the notes or add covenants for the benefit of the Holders of Notes or to surrender any right or power conferred upon the Issuer or any Guarantor;
(7) to evidence and provide for the acceptance and appointment under this Indenture of a successor Trustee pursuant to the requirements of Sections 609 and 610 hereof;
(8) to provide for the issuance of Additional Notes, in accordance with this Indenture;
(9) to add a Guarantor or a parent guarantor under this Indenture, provided that only the Trustee and the Guarantor or parent guarantor being added need to sign any such supplement or amendment;
(10) to conform the text of this Indenture, Guarantees or the Notes to any provision of the “Description of Notes” section of the Offering Document;
(11) to amend the provisions of this Indenture relating to the transfer and legending of Notes as permitted by this Indenture, including, without limitation, to facilitate the issuance and administration of the Notes; provided that, (A) compliance with this Indenture as so amended would not result in Notes being transferred in violation of the Securities Act or any applicable securities law and (B) such amendment does not materially and adversely affect the rights of Holders to transfer Notes; or
(12) to comply with the rules of any applicable securities depositary.
SECTION 902. Amendments, Supplements or Waivers with Consent of Holders.
(a) With the consent of the Holders of at least a majority in principal amount of the Outstanding Notes, by the Act of said Holders delivered to the Issuer and the Trustee, the Issuer, any Guarantor (with respect to any Guarantee to which it is a party or this Indenture) and the Trustee may amend or supplement this Indenture, any Guarantee or the Notes for the purpose of adding any provisions hereto or thereto, changing in any manner or eliminating any of the
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provisions or of modifying in any manner the rights of the Holders hereunder or thereunder (including consents obtained in connection with a purchase of, or tender offer the Notes) and any existing Default or Event of Default or compliance with any provision of this Indenture or the Notes may be waived with the consent of the Holders of not less than a majority in principal amount of the Outstanding Notes, including consents obtained in connection with a purchase of or tender offer for Notes, other than Notes beneficially owned by the Issuer or its Affiliates; provided that, without consent of the Holder of each Outstanding Note affected thereby, no such amendment, supplement or waiver shall, with respect to any Notes held by a non-consenting Holder:
(1) reduce the principal amount of Notes whose Holders must consent to an amendment, supplement or waiver as confirmed in an Officer’s Certificate to the Trustee,
(2) reduce the principal of or change the Maturity of any such Note or reduce the premium payable upon the redemption of any Note or change the time at which any Note may be redeemed pursuant to Section 1101; provided that any amendment to the notice requirements may be made with the consent of the Holders of a majority in aggregate principal amount of then outstanding Notes,
(3) reduce the rate of or change the time for payment of interest on any Note,
(4) waive a Default or Event of Default in the payment of principal of or premium, if any, or interest on the Notes issued under this Indenture, except a rescission of acceleration of the Notes by the Holders of at least a majority in aggregate principal amount of the Notes and a waiver of the payment default that resulted from such acceleration, or in respect of a covenant or provision contained in this Indenture or any Guarantee which cannot be amended or modified without the consent of all Holders of the Notes,
(5) make any Note payable in money other than that stated in the Notes,
(6) make any change in Section 513 or the rights of Holders of the Notes to receive payments of principal of or premium, if any, or interest on the Notes,
(7) make any change in these amendment and waiver provisions,
(8) impair the right of any Holder to receive payment of principal of, or interest on such Holder’s Notes on or after the due dates therefor or to institute suit for the enforcement of any payment on or with respect to such Holder’s Notes, or
(9) make any change to or modify the ranking of any Note or related Guarantee that would adversely affect the Holders.
For purposes of determining whether any Holder shall be disregarded for purposes of such consent, only Notes which a Responsible Officer of the Trustee actually knows to be beneficially owned by the Issuer or its Affiliates shall be disregarded.
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(b) It shall not be necessary for the consent of Holders under this Section 902 to approve the particular form of any proposed amendment or waiver, and it shall be sufficient if such consent approves the substance thereof.
(c) [Reserved]
(d) Neither the Issuer nor any of its Restricted Subsidiaries may, directly or indirectly, pay or cause to be paid any consideration to or for the benefit of any Holder for or as an inducement to any consent, waiver or amendment of any of the terms or provisions of this Indenture or the Notes unless such consideration is offered to be paid and is paid to all Holders that are “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act, Non-U.S. Persons or IAI, in each case, who, upon request, confirm that they are “qualified institutional buyers” Non-U.S. Persons or IAI and consent, waive or agree to amend in the time frame set forth in solicitation documents relating to such consent, waiver or amendment.
SECTION 903. Execution of Amendments, Supplements or Waivers. In executing, or accepting the additional trusts created by, any amendment, supplement or waiver permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be provided with, and shall be fully protected in relying upon, an Officer’s Certificate and (other than in the case of an amendment or supplement for the purpose of adding a Guarantor or a parent guarantor under this Indenture in accordance with Section 901(9)) Opinion of Counsel stating that the execution of such amendment, supplement or waiver is authorized and permitted by this Indenture, complies with the provisions hereof, and is the legal, valid and binding obligation of the Issuer and Guarantor, enforceable against the Issuer and Guarantor in accordance with its terms. Guarantors may, but shall not be required to, execute supplemental indentures that do not modify such Guarantor’s Guarantee. The Trustee may, but shall not be obligated to, enter into any such amendment, supplement or waiver which affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Amendments, Supplements or Waivers. Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such amendment, supplement or waiver shall form a part of this Indenture for all purposes; and every Holder of Notes theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 905. Reference in Notes to Supplemental Indentures. Notes authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Issuer shall so determine, new Notes so modified as to conform, in the opinion of the Trustee and the Issuer, to any such supplemental indenture may be prepared and executed by the Issuer and authenticated and delivered by the Trustee in exchange for Outstanding Notes.
SECTION 906. Notice of Supplemental Indentures. Promptly after the execution by the Issuer, any Guarantor and the Trustee of any supplemental indenture pursuant to the provisions of Section 902, the Issuer shall give notice thereof to the Holders of each Outstanding Note affected, in the manner provided for in Section 107, setting forth in general terms the substance of such supplemental indenture.
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ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, and Interest. The Issuer covenants and agrees for the benefit of the Holders that it will duly and punctually pay the principal of (and premium on, if any) the Notes in accordance with the terms of the Notes and this Indenture.
The Issuer shall pay interest on overdue principal at the rate specified therefor in the Notes, and it shall pay interest on overdue installments of interest at the same rate to the extent lawful.
SECTION 1002. Maintenance of Office or Agency. The Issuer will maintain in Cincinnati, Ohio an office or agency where Notes may be presented or surrendered for payment, where Notes may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Issuer in respect of the Notes and this Indenture may be served. The designated office of the Trustee shall be such office or agency of the Issuer in Cincinnati, Ohio, unless the Issuer shall designate and maintain some other office or agency for one or more of such purposes. The Issuer will give prompt written notice to the Trustee of any change in the location of such office or agency. If at any time the Issuer shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Issuer hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands with respect to the Notes.
The Issuer may also from time to time designate one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind any such designation; provided, that no such designation or rescission shall in any manner relieve the Issuer of its obligation to maintain an office or agency in Cincinnati, Ohio. The Issuer will give prompt written notice to the Trustee of any such designation or rescission and any change in the location of any such other office or agency.
SECTION 1003. Money for Notes Payments to Be Held in Trust. If the Issuer shall at any time act as its own Paying Agent, it will, on or before each due date of the principal of (or premium, if any) on any of the Notes, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal of (or premium, if any) or interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its action or failure so to act.
Whenever the Issuer shall have one or more Paying Agents for the Notes, it will, on or before each due date of the principal of (or premium, if any) or interest on any Notes in accordance with Section 1001, deposit with a Paying Agent a sum sufficient to pay the principal (and premium, if any) or interest so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal, premium or interest, and (unless such Paying Agent is the Trustee) the Issuer will promptly notify the Trustee in writing of such action or any failure so to act.
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Each Paying Agent agrees:
(1) that it will hold all sums received by it as Paying Agent for the payment of the principal of or interest on any Notes in trust for the benefit of the Holders or of the Trustee;
(2) that it will give the Trustee notice of any failure by the Issuer to make any payment of the principal of or interest on any Notes and any other payments to be made by or on behalf of the Issuer under this Indenture or the Notes when the same shall be due and payable; and
(3) that it will pay any such sums so held in trust by it to the Trustee forthwith upon the Trustee’s written request at any time during the continuance of the failure referred to in clause (2) above.
The Issuer may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Issuer Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Issuer or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Issuer or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such sums.
Any money deposited with the Trustee or any Paying Agent, or then held by the Issuer, in trust for the payment of the principal of (or premium, if any) or interest on any Note and remaining unclaimed for two years after such principal, premium or interest has become due and payable shall be paid to the Issuer on Issuer Request, or (if then held by the Issuer) shall be discharged from such trust; and the Holder of such Note shall thereafter, as an unsecured general creditor, look only to the Issuer for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Issuer as Trustee thereof, shall thereupon cease; provided, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Issuer cause to be published once, in a newspaper published in the English language, customarily published on each Business Day and of general circulation in the Borough of Manhattan, The City of New York, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Issuer.
SECTION 1004. Statement by Officer as to Default.
(a) The Issuer will deliver to the Trustee within 120 days after the end of each fiscal year, an Officer’s Certificate stating that a review of the activities of the Issuer and its Restricted Subsidiaries during the preceding fiscal year has been made under the supervision of the signing officer with a view to determining whether it has kept, observed, performed and fulfilled, and has caused each of its Restricted Subsidiaries to keep, observe, perform and fulfill its obligations
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under this Indenture and further stating that, to the best of his or her knowledge, the Issuer during such preceding fiscal year has kept, observed, performed and fulfilled, and has caused each of its Restricted Subsidiaries to keep, observe, perform and fulfill each and every such covenant contained in this Indenture and no Default or Event of Default occurred during such year and at the date of such certificate there is no Default or Event of Default which has occurred and is continuing or, if such signers do know of such Default or Event of Default, the certificate shall describe its status, with particularity and that, to the best of his or her knowledge, no event has occurred and remains by reason of which payments on the account of the principal of or interest, if any, on the Notes is prohibited or if such event has occurred, a description of the event and what action each is taking or proposes to take with respect thereto. The Officer’s Certificate shall also notify the Trustee should the Issuer elect to change the manner in which it fixes its fiscal year end. For purposes of this Section 1004(a), such compliance shall be determined without regard to any period of grace or requirement of notice under this Indenture.
(b) When any Default or Event of Default has occurred and is continuing under this Indenture, the Issuer shall deliver to the Trustee an Officer’s Certificate specifying such event, notice or other action within ten Business Days of becoming aware of such occurrence.
SECTION 1005. Reports and Other Information.
(a) Whether or not the Issuer is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, so long as any Notes are outstanding, the Issuer will furnish to the Holder, within the time periods specified in the SEC’s rules and regulations (as in effect on the Issue Date):
(1) (x) all annual and quarterly financial statements that would be required to be contained in a filing with the SEC on Forms 10-K and 10-Q (or any successor or comparable forms) of the Issuer, if the Issuer were required to file such forms, plus a “Management’s Discussion and Analysis of Financial Condition and Results of Operations”; and (y) with respect to the annual financial statements only, a report on the annual financial statements by the Issuer’s independent registered public accounting firm; and
(2) all information that would be required to be contained in filings with the SEC on Form 8-K under Items 1.01 (including furnishing any material debt agreements that would be required to be described in such Form 8-K), 1.02, 1.03, 2.01, 2.05, 2.06, 4.01, 4.02, 5.01 and 5.02(b) and (c) (other than with respect to information otherwise required or contemplated by Item 402 of Regulation S-K) as in effect on the Issue Date if the Issuer were required to file such reports; provided, however, that no such current report shall be required to include as an exhibit, or to include a summary of the terms of, any employment or compensatory arrangement agreement, plan or understanding between the Issuer (or any of its Subsidiaries) and any director, manager or executive officer, of the Issuer (or any of its Subsidiaries).
All such annual reports shall be furnished within 90 days after the end of the fiscal year to which they relate, and all such quarterly reports shall be furnished within 45 days after the end of the fiscal quarter to which they relate. All such current reports shall be furnished within the time periods specified in the SEC’s rules and regulations for reporting companies under the Exchange Act.
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The Issuer shall make available such information and such reports (as well as the details regarding the conference call described below) to the Trustee under this Indenture, to any Holder and, upon request, to any beneficial owner of the Notes, in each case, by (i) filing such reports with the SEC (and such reports are publicly available) or (ii) posting such reports on the Issuer’s website and issuing a press release in respect thereof. The Issuer will hold a quarterly conference call for all Holders and securities analysts (to the extent providing analysis of investment in the notes) to discuss such financial information (including a customary Q&A session) no later than five (5) Business Days after distribution of such financial information.
(b) The Issuer shall provide S&P and Moody’s (and their respective successors) with information on a periodic basis as S&P or Moody’s, as the case may be, shall reasonably require in order to maintain public ratings of the Notes. To the extent not satisfied by the foregoing, the Issuer shall also furnish to Holders, securities analysts (to the extent providing analysis of investment in the notes) and prospective investors in the Notes upon request the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act of 1933, as amended (the “Securities Act”), so long as the Notes are not freely transferable under the Securities Act.
(c) If the Issuer has designated any of its Subsidiaries as an Unrestricted Subsidiary and if any such Unrestricted Subsidiary or group of Unrestricted Subsidiaries, if taken together as one Subsidiary, would constitute a Significant Subsidiary of the Issuer, then the annual and quarterly information required by clause (1) of the first paragraph of this covenant shall include a reasonably detailed presentation, either on the face of the financial statements or in the footnotes thereto, of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of such Unrestricted Subsidiaries.
(d) Notwithstanding the foregoing, the financial statements, information and other documents required to be provided as described above, may be those of (i) the Issuer or (ii) any direct or indirect parent of the Issuer rather than those of the Issuer; provided that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to the Issuer and the Restricted Subsidiaries on a standalone basis, on the other hand.
Delivery of reports, information and documents to the Trustee is for informational purposes only and its receipt of such reports shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including our compliance with any of our covenants under this Indenture or the Notes (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates). The Trustee has no obligation to review or confirm any reports, information or documents delivered to or received by the Trustee at any time or from any source, or to notify any person of receipt or failure to receive any reports, information or documents.
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The Trustee shall not be obligated to monitor or confirm, on a continuing basis or otherwise, our compliance with the covenants or with respect to any reports or other documents filed with the SEC under this Indenture.
SECTION 1006. Limitation on Restricted Payments.
(a) The Issuer shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly:
(1) declare or pay any dividend or make any payment or distribution on account of the Issuer’s or any Restricted Subsidiary’s Equity Interests, including any dividend or distribution payable in connection with any merger or consolidation, other than:
(A) dividends or distributions by the Issuer or such Restricted Subsidiary payable in Equity Interests (other than Disqualified Stock) of the Issuer or such Restricted Subsidiary or in options, warrants or other rights to purchase such Equity Interests; or
(B) dividends or distributions by a Restricted Subsidiary so long as, in the case of any dividend or distribution payable on or in respect of any class or series of securities issued by a Restricted Subsidiary other than a Wholly-Owned Subsidiary, the Issuer or a Restricted Subsidiary receives at least its pro rata share of such dividend or distribution in accordance with its Equity Interests in such class or series of securities;
(2) purchase, redeem, defease or otherwise acquire or retire for value any Equity Interests of the Issuer or any direct or indirect parent company of the Issuer, including in connection with any merger or consolidation, in each case held by a Person other than the Issuer or a Restricted Subsidiary;
(3) make any principal payment on, or redeem, repurchase, defease or otherwise acquire or retire for value in each case, prior to any scheduled repayment, sinking fund payment or maturity, any Subordinated Indebtedness of the Issuer or any Restricted Subsidiary, other than:
(A) Indebtedness permitted under clauses (7) and (8) of Section 1007(b); or
(B) the purchase, repurchase or other acquisition of Subordinated Indebtedness purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of purchase, repurchase or acquisition; or
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(4) make any Restricted Investment;
(all such payments and other actions set forth in clauses (1) through (4) above (other than any exception thereto) being collectively referred to as “Restricted Payments”), unless, at the time of such Restricted Payment:
(A) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(B) immediately after giving effect to such transaction on a pro forma basis, the Issuer could incur $1.00 of additional Indebtedness under Section 1007(a); and
(C) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Issuer and the Restricted Subsidiaries after the Issue Date (including Restricted Payments permitted by clauses (1) and (6)(C) of Section 1006(b), but excluding all other Restricted Payments permitted by Section 1006(b)), is less than the sum of (without duplication):
(1) 50% of the Consolidated Net Income of the Issuer for the period (taken as one accounting period) June 9, 2022 to the end of the Issuer’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment, or, in the case such Consolidated Net Income for such period is a deficit, minus 100% of such deficit, plus
(2) 100% of the aggregate net cash proceeds and the Fair Market Value of marketable securities or other property received by the Issuer since immediately after the Issue Date (other than net cash proceeds to the extent such net cash proceeds have been used to incur Indebtedness, Disqualified Stock or preferred stock pursuant to Section 1007(b)(12)(A) from the issue or sale of:
(x) Equity Interests of the Issuer, including Retired Capital Stock (as defined below), but excluding cash proceeds and the Fair Market Value of marketable securities or other property received from the sale of:
(A) Equity Interests to any employee, director, manager or consultant of the Issuer, any direct or indirect parent company of the Issuer and the Issuer’s Subsidiaries after the Issue Date to the extent such amounts have been applied to Restricted Payments made in accordance with Section 1006(b)(4) and
(B) Designated Preferred Stock and to the extent such net cash proceeds are actually contributed to the Issuer, Equity Interests of any direct or indirect parent company of the Issuer (excluding contributions of the proceeds from the sale of Designated Preferred Stock of such companies or contributions to the extent such amounts have been applied to Restricted Payments made in accordance with Section 1006(b)(4)); or
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(y) Indebtedness of the Issuer or a Restricted Subsidiary that has been converted into or exchanged for such Equity Interests of the Issuer or any direct or indirect parent company of the Issuer;
provided that this clause (2) shall not include the proceeds from (a) Refunding Capital Stock (as defined below), (b) Equity Interests (or Indebtedness that has been converted or exchanged for Equity Interests) of the Issuer sold to a Restricted Subsidiary or the Issuer, as the case may be, (c) Disqualified Stock (or Indebtedness that has been converted or exchanged into Disqualified Stock) or (d) Excluded Contributions, plus
(3) 100% of the aggregate amount of cash and the Fair Market Value of marketable securities or other property contributed to the capital of the Issuer or that becomes part of the capital of the Issuer or a Restricted Subsidiary through consolidation or merger following the Issue Date (other than net cash proceeds to the extent such net cash proceeds (i) have been used to incur Indebtedness, Disqualified Stock or preferred stock pursuant to Section 1007(b)(12)(A), (ii) are contributed by a Restricted Subsidiary or (iii) constitute Excluded Contributions), plus
(4) 100% of the aggregate amount received in cash and the Fair Market Value of marketable securities or other property received by means of:
(A) the sale or other disposition (other than to the Issuer or a Restricted Subsidiary) of Restricted Investments made by the Issuer and the Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Issuer and the Restricted Subsidiaries and repayments of loans or advances, and releases of guarantees, which constitute Restricted Investments made by the Issuer or its Restricted Subsidiaries, in each case, after the Issue Date or
(B) the sale (other than to the Issuer or a Restricted Subsidiary) of the stock of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary was made by the Issuer or a Restricted Subsidiary pursuant to clauses (7) or (11) of Section 1006(b) or to the extent such Investment constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary after the Issue Date, plus
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(5) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary after the Issue Date, the Fair Market Value of the Investment in such Unrestricted Subsidiary at the time of the redesignation of such Unrestricted Subsidiary as a Restricted Subsidiary, other than to the extent the Investment in such Unrestricted Subsidiary was made by the Issuer or a Restricted Subsidiary pursuant to clauses (7) or (11) of Section 1006(b) or to the extent such Investment constituted a Permitted Investment.
(b) The foregoing provisions shall not prohibit:
(1) the payment of any dividend or distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration thereof or the giving of such irrevocable notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Indenture;
(2) (A) the redemption, repurchase, retirement or other acquisition of any Equity Interests (“Retired Capital Stock”) or Subordinated Indebtedness of the Issuer or any Restricted Subsidiary, or any Equity Interests of any direct or indirect parent company of the Issuer, in exchange for, or out of the proceeds of a substantially concurrent sale (other than to a Restricted Subsidiary) of, Equity Interests of the Issuer or any direct or indirect parent company of the Issuer to the extent contributed to the Issuer (in each case, other than any Disqualified Stock) (“Refunding Capital Stock”) and
(B) if immediately prior to the retirement of Retired Capital Stock, the declaration and payment of dividends thereon was permitted under clause (6)(A) or (B) of this Section 1006(b), the declaration and payment of dividends on the Refunding Capital Stock (other than Refunding Capital Stock the proceeds of which were used to redeem, repurchase, retire or otherwise acquire any Equity Interests of any direct or indirect parent company of the Issuer) in an aggregate amount per year no greater than the aggregate amount of dividends per annum that was declarable and payable on such Retired Capital Stock immediately prior to such retirement;
(3) the prepayment, exchange, redemption, defeasance, repurchase or other acquisition or retirement for value of (i) Subordinated Indebtedness of the Issuer or a Restricted Subsidiary made in exchange for, or out of the proceeds of a substantially concurrent sale of, new Indebtedness of the Issuer, or a Restricted Subsidiary, or (ii) Disqualified Stock of the Issuer or a Restricted Subsidiary made in exchange for, or out of the proceeds of a substantially concurrent sale of, Disqualified Stock of the Issuer or a Restricted Subsidiary, that, in each case is incurred in compliance with Section 1007 so long as:
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(A) the principal amount (or accreted value, if applicable) of such new Indebtedness or the liquidation preference of such new Disqualified Stock does not exceed the principal amount of (or accreted value, if applicable), plus any accrued and unpaid interest on, the Subordinated Indebtedness or the liquidation preference of, plus any accrued and unpaid dividends on, the Disqualified Stock being so prepaid, exchanged, redeemed, defeased, repurchased, exchanged, acquired or retired for value, plus the amount of any premium (including reasonable tender premiums), defeasance costs and any reasonable fees and expenses incurred in connection with the issuance of such new Indebtedness or Disqualified Stock,
(B) such new Indebtedness is subordinated to the Notes or the applicable Guarantee at least to the same extent as such Subordinated Indebtedness so prepaid, exchanged, redeemed, defeased, repurchased, acquired or retired for value,
(C) such new Indebtedness or Disqualified Stock has a final scheduled maturity date, or mandatory redemption date, as applicable, equal to or later than (x) the final scheduled maturity date, or mandatory redemption date, as applicable, of the Subordinated Indebtedness or Disqualified Stock being so prepaid, exchanged, redeemed, defeased, repurchased, exchanged, acquired or retired or (y) one year after the final stated maturity of the Notes, and
(D) such new Indebtedness or Disqualified Stock has a Weighted Average Life to Maturity equal to or greater than (x) the remaining Weighted Average Life to Maturity of the Subordinated Indebtedness or Disqualified Stock being so redeemed, defeased, repurchased, exchanged, acquired or retired or (y) one year after the final stated maturity of the Notes;
(4) the repurchase, retirement or other acquisition or retirement for value of Equity Interests (other than Disqualified Stock) of the Issuer or any direct or indirect parent company of the Issuer held by any future, present or former employee, director, manager or consultant of the Issuer, any of its Subsidiaries or any direct or indirect parent company of the Issuer or their estates or the beneficiary of such estates, pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement, or any stock subscription or shareholder agreement (including, for the avoidance of doubt, any principal and interest payable on any notes issued by the Issuer or any direct or indirect parent company of the Issuer in connection with such repurchase, retirement or other acquisition); provided, that the aggregate Restricted Payments made under this clause (4) do not exceed in any calendar year the greater of (x) $100.0 million and (y) 2.500% of Consolidated Total Assets (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum of the greater of (i) $200.0 million and (ii) 5.000% of Consolidated Total Assets in any calendar year); provided, further, that such amount in any calendar year may be increased by an amount not to exceed:
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(A) the cash proceeds from the sale of Equity Interests (other than Disqualified Stock) of the Issuer and, to the extent contributed to the Issuer, the cash proceeds from the sale of Equity Interests of any direct or indirect parent company of the Issuer, in each case to any future, present or former employees, directors, managers or consultants of the Issuer, any of its Subsidiaries or any direct or indirect parent company of the Issuer that occurs after the Issue Date, to the extent the cash proceeds from the sale of such Equity Interests have not otherwise been applied to the payment of Restricted Payments by virtue of clause (C) of Section 1006(a); plus
(B) the cash proceeds of key man life insurance policies received by the Issuer and the Restricted Subsidiaries after the Issue Date, less
(C) the amount of any Restricted Payments previously made pursuant to clauses (A) and (B) of this Section 1006(b)(4); provided that the Issuer may elect to apply all or any portion of the aggregate increase contemplated by clauses (A) and (B) of this Section 1006(b)(4) in any calendar year;
and provided, further, that cancellation of Indebtedness owing to the Issuer or any Restricted Subsidiary from any future, present or former employees, directors, managers or consultants of the Issuer (or any permitted transferee thereof), any direct or indirect parent company of the Issuer or any Restricted Subsidiary in connection with a repurchase of Equity Interests of the Issuer or any direct or indirect parent company of the Issuer shall not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Indenture;
(5) the declaration and payment of dividends to holders of any class or series of Disqualified Stock of the Issuer or any Restricted Subsidiary or any class or series of preferred stock of any Restricted Subsidiary, in each case, issued in accordance with the covenant described under Section 1007 to the extent such dividends are included in the definition of Fixed Charges;
(6) (A) the declaration and payment of dividends to holders of any class or series of Designated Preferred Stock (other than Disqualified Stock) issued by the Issuer after the Issue Date;
(B) the declaration and payment of dividends to any direct or indirect parent company of the Issuer, the proceeds of which shall be used to fund the payment of dividends to holders of any class or series of Designated Preferred Stock (other than Disqualified Stock) of such parent company issued after the Issue Date; provided that the amount of dividends paid pursuant to this clause (B) shall not exceed the aggregate amount of cash actually contributed to the Issuer from the sale of such Designated Preferred Stock, or
(C) the declaration and payment of dividends on Refunding Capital Stock in excess of the dividends declarable and payable thereon pursuant to Section 1006(b)(2);
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provided that, in the case of each of (A) and (C) of this clause (6), for the most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date of issuance of such Designated Preferred Stock or the declaration of such dividends on Refunding Capital Stock, after giving effect to such issuance or declaration on a pro forma basis, the Issuer and the Restricted Subsidiaries on a consolidated basis would have had a Fixed Charge Coverage Ratio of at least 2.00 to 1.00;
(7) [reserved]
(8) the purchase, repurchase, redemption, acquisition or retirement for value of any Equity Interest of the Issuer or any Restricted Subsidiary deemed to occur upon (a) the exercise of warrants, stock options or similar rights if such Equity Interests represent a portion of the exercise price thereof, (b) the withholding of Equity Interests in connection with an arrangement to satisfy withholding or similar taxes required by the exercise of warrants, stock options or vesting or settlement of other awards or (c) the cancellation of stock options, warrants or other equity awards;
(9) so long as no Event of Default has occurred and is continuing, additional Restricted Payments in an amount not to exceed the greater of (x) $250.0 million and (y) 6.250% of Consolidated Total Assets in any fiscal year;
(10) Restricted Payments with the amount of Excluded Contributions made since the Issue Date;
(11) other Restricted Payments in an aggregate amount taken together with all other Restricted Payments made pursuant to this clause (11) not to exceed the greater of (x) $125.0 million and (y) 3.125% of Consolidated Total Assets at the time made;
(12) distributions or payments of Receivables Fees;
(13) any Restricted Payment made in connection with the Transactions and the fees and expenses related thereto or used to fund amounts owed to Affiliates (including dividends to any direct or indirect parent company of the Issuer to permit payment by such parent of such amount), to the extent permitted by Section 1009;
(14) the repurchase, redemption, defeasance or other acquisition or retirement for value of any Subordinated Indebtedness in accordance with the provisions similar to those of Section 1012 and Section 1013; provided that all Notes tendered by Holders of the Notes in connection with a Change of Control Offer or an Asset Sale Offer, as the case may be, have been repurchased, redeemed, defeased or acquired or retired for value;
(15) the declaration and payment of dividends by the Issuer to, or the making of loans to, any direct or indirect parent company of the Issuer in amounts required for any direct or indirect parent company to pay:
(A) franchise and excise taxes and other fees and expenses, in each case, required to maintain its organizational existence,
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(B) for any taxable period the Issuer is a member of a group filing a consolidated, combined or unitary income tax return with such parent company, foreign, federal, state and local income taxes (including any interest or penalties related thereto), to the extent such taxes are attributable to the taxable income of the Issuer and the Restricted Subsidiaries and, to the extent of the amount actually received from its Unrestricted Subsidiaries, in amounts required to pay such taxes to the extent attributable to the income of such Unrestricted Subsidiaries; provided that in each case the amount of such payments in any fiscal year does not exceed the amount that the Issuer, its Restricted Subsidiaries and its Unrestricted Subsidiaries (to the extent described above) would be required to pay in respect of such foreign, federal, state and local income taxes for such fiscal year had the Issuer, its Restricted Subsidiaries and its Unrestricted Subsidiaries (to the extent described above) been a stand-alone taxpayer (separate from any such direct or indirect parent company of the Issuer) for all fiscal years ending after the Issue Date taking into account any carryovers and carrybacks of tax attributes (such as net operating losses) and without duplication of any taxes paid directly by the Issuer and the Subsidiaries,
(C) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, employees, directors and managers and consultants of any direct or indirect parent company of the Issuer to the extent such salaries, bonuses, benefits and indemnities are attributable to the ownership or operation of the Issuer and the Restricted Subsidiaries, including the Issuer’s proportionate share of such amount relating to such parent company being a public company,
(D) general corporate or other operating (including, without limitation, expenses related to auditing or other accounting matters) and overhead costs and expenses of any direct or indirect parent company of the Issuer to the extent such costs and expenses are attributable to the ownership or operation of the Issuer and the Restricted Subsidiaries, including the Issuer’s proportionate share of such amount relating to such parent company being a public company,
(E) fees and expenses incurred by any direct or indirect parent company of the Issuer related to the maintenance by such parent entity of its corporate or other entity existence, and
(F) cash payments in lieu of issuing fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of the Issuer or any such direct or indirect parent company of the Issuer;
(16) the repurchase, redemption or other acquisition for value of Equity Interests of the Issuer deemed to occur in connection with, and the payment of, cash in lieu of fractional shares of such Equity Interests in connection with a share dividend, distribution, share split, reverse share split, merger, consolidation, amalgamation or other business combination of the Issuer, in each case, permitted under this Indenture;
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(17) the distribution, by dividend or otherwise, of shares of Capital Stock of, or Indebtedness owed to the Issuer or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are cash and/or Cash Equivalents);
(18) any Restricted Payment; provided that on a pro forma basis after giving effect to such Restricted Payment (x) the Consolidated Total Debt Ratio would be equal to or less than 3.75 to 1.00 and (y) no Event of Default shall have occurred and be continuing or would occur as a consequence thereof; and
(19) payments or distributions to satisfy dissenters’ rights, pursuant to or in connection with a consolidation, merger or transfer of assets that complies with Article Eight; provided that at the time of, and after giving effect to, any Restricted Payment permitted under clauses (11) and (17) of this Section 1006(b), no Event of Default shall have occurred and be continuing or would, with the passage of time, occur as a consequence thereof.
(c) As of the Issue Date, all of the Issuer’s Subsidiaries shall be Restricted Subsidiaries. The Issuer shall not permit any Unrestricted Subsidiary to become a Restricted Subsidiary except pursuant to the last sentence of the definition of “Unrestricted Subsidiary.” For purposes of designating any Restricted Subsidiary as an Unrestricted Subsidiary, all outstanding Investments by the Issuer and the Restricted Subsidiaries (except to the extent repaid) in the Subsidiary so designated shall be deemed to be Restricted Payments or Permitted Investments in an amount determined as set forth in the second to last sentence of the definition of “Investment.” Such designation shall be permitted only if a Restricted Payment or Permitted Investment in such amount would be permitted at such time, whether pursuant to Section 1006(a) or under clauses (9), (10) or (11) of Section 1006(b), or pursuant to the definition of “Permitted Investments,” and if such Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. Unrestricted Subsidiaries shall not be subject to any of the restrictive covenants set forth in this Indenture.
(d) For purposes of determining compliance with this Section 1006, in the event that a proposed Restricted Payment or Investment (or a portion thereof) meets the criteria of clauses (1) through (19) of Section 1006(b) or is entitled to be made pursuant to Section 1006(a) and/or one or more of the exceptions contained in the definition of “Permitted Investments” in Section 102, the Issuer shall be entitled to classify or later reclassify (based on circumstances existing on the date of such reclassification) such Restricted Payment or Investment (or portion thereof) among clauses (1) through (19) of Section 1006(b), Section 1006(a) and/or one or more of the exceptions contained in the definition of “Permitted Investments” in Section 102 in a manner that otherwise complies with this Section 1006.
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SECTION 1007. Limitation on Incurrence of Indebtedness and Issuance of Disqualified Stock.
(a) The Issuer shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to any Indebtedness (including Acquired Indebtedness) and the Issuer shall not issue any shares of Disqualified Stock and shall not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not the Issuer or Guarantors, preferred stock; provided that the Issuer may incur Indebtedness (including Acquired Indebtedness) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness), issue shares of Disqualified Stock and issue shares of preferred stock, if, after giving effect thereto, the Fixed Charge Coverage Ratio of the Issuer and the Restricted Subsidiaries would be at least 2.00 to 1.00.
(b) The foregoing limitations shall not apply to:
(1) Indebtedness incurred pursuant to Credit Facilities by the Issuer or any Restricted Subsidiary; provided that immediately after giving effect to any such incurrence, the then-outstanding aggregate principal amount of all Indebtedness incurred under this clause (1) does not exceed at any one time (x) $2,300.0 million plus (y) an additional amount if, after giving pro forma effect to the incurrence of such additional amount and the application of net proceeds therefrom, the Consolidated Secured Debt Ratio is equal to or less than 4.00:1.00; provided, further, that, for purposes of determining the amount of Indebtedness that may be incurred under clause (1)(y), all Indebtedness incurred under this clause (1) shall be treated as Secured Indebtedness;
(2) Indebtedness represented by the Notes (including any Guarantee thereof, but excluding Indebtedness represented by Additional Notes, if any, or guarantees with respect thereto);
(3) Existing Indebtedness (other than Indebtedness incurred pursuant to clauses (1) and (2) above);
(4) Indebtedness (including Finance Lease Obligations), Disqualified Stock and preferred stock incurred by the Issuer or any Restricted Subsidiary, to finance the purchase, lease, construction, development, installation or improvement of property (real or personal), equipment or other fixed or capital assets that are used or useful in a Similar Business, whether through the direct purchase of assets or the Capital Stock of any Person owning such assets and Indebtedness arising from the conversion of the obligations of the Issuer or any Restricted Subsidiary under or pursuant to any “synthetic lease” transactions to on-balance sheet Indebtedness of the Issuer or such Restricted Subsidiary, in an aggregate principal amount or liquidation preference which, when aggregated with the principal amount of all other Indebtedness, Disqualified Stock and preferred stock then outstanding and incurred pursuant to this clause (4), and all Refinancing Indebtedness incurred to Refinance any other Indebtedness, Disqualified Stock and preferred stock incurred pursuant to this clause (4), does not exceed the greater of (x) $400.0 million and (y) 10.000% of Consolidated Total Assets at the time of incurrence; provided that such Indebtedness that exists at the date of such purchase, lease, construction, installation or improvement or is created within 365 days of the completion thereof incurred by the Issuer or any Restricted Subsidiary pursuant to this clause (4) in connection with a Sale and Lease-Back Transaction shall not be subject to the foregoing limitation so long as the proceeds of such Sale and Lease-Back Transaction are used by the Issuer or such Restricted Subsidiary to permanently repay outstanding Indebtedness of the Issuer and the Restricted Subsidiaries;
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(5) Indebtedness incurred by the Issuer or any Restricted Subsidiary constituting reimbursement obligations with respect to letters of credit, bankers’ acceptances, bank guarantees, warehouse receipts or similar facilities issued or entered into in the ordinary course of business, including letters of credit in respect of workers’ compensation claims, performance, surety, appeal or similar bonds, completion guarantees or supporting indemnity, bid, warranty, health, disability or other employee benefits or property, casualty or liability insurance or self- insurance or other Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, performance or surety bonds, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance;
(6) Indebtedness arising from agreements of the Issuer or a Restricted Subsidiary providing for indemnification, adjustment of purchase price, earn-out or similar obligations, in each case, incurred or assumed in connection with the disposition of any business, assets or a Subsidiary, other than guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such acquisition; provided that such Indebtedness is not reflected as Indebtedness on the balance sheet of the Issuer or any Restricted Subsidiary (contingent obligations referred to in a footnote to financial statements and not otherwise reflected on the balance sheet will not be deemed to be reflected on such balance sheet for purposes of this clause (6));
(7) Indebtedness of the Issuer to a Restricted Subsidiary; provided that any such Indebtedness owing to a Restricted Subsidiary that is not a Guarantor is subordinated in right of payment to the Notes; provided, further, that any subsequent issuance or transfer of any Capital Stock or any other event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of any such Indebtedness (except to the Issuer or another Restricted Subsidiary) shall be deemed, in each case to be an incurrence of such Indebtedness not permitted by this clause (7);
(8) Indebtedness of a Restricted Subsidiary owing to the Issuer or another Restricted Subsidiary; provided that if a Guarantor incurs such Indebtedness owing to a Restricted Subsidiary that is not the Issuer or a Guarantor, such Indebtedness is subordinated in right of payment to the Guarantee of the Notes of such Guarantor; provided, further, that any subsequent transfer of any such Indebtedness (except to the Issuer or another Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness not permitted by this clause (8);
(9) shares of preferred stock of a Restricted Subsidiary issued to the Issuer or another Restricted Subsidiary; provided that any subsequent issuance or transfer of any Capital Stock or any other event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of any such shares of preferred stock (except to the Issuer or another Restricted Subsidiary) shall be deemed in each case to be an issuance of such shares of preferred stock not permitted by this clause (9);
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(10) Hedging Obligations (excluding Hedging Obligations entered into for speculative purposes);
(11) Indebtedness and obligations in respect of (x) self-insurance, performance, bid, appeal and surety bonds and completion guarantees and similar obligations provided by the Issuer or any Restricted Subsidiary or obligations in respect of letters of credit, bank guarantees or similar instruments related thereto, in each case, in the ordinary course of business and (y) deferred compensation or other similar arrangements incurred by the Issuer or any of its Restricted Subsidiaries;
(12)
(A) Indebtedness, Disqualified Stock and preferred stock of the Issuer or any Restricted Subsidiary in an aggregate principal amount or liquidation preference up to 100% of the net cash proceeds received by the Issuer since immediately after the Issue Date from the issue or sale of Equity Interests of the Issuer or cash contributed to the capital of the Issuer (in each case, other than Excluded Contributions or proceeds of Disqualified Stock or sales of Equity Interests to the Issuer or any of its Subsidiaries) as determined in accordance with clauses (C)(2) and (C)(3) of Section 1006(a) to the extent such net cash proceeds or cash have not been applied pursuant to such clauses to make Restricted Payments or to make other Investments, payments or exchanges pursuant to Section 1006(b) or to make Permitted Investments (other than Permitted Investments specified in clauses (1), (2) and (3) of the definition thereof) and
(B) Indebtedness, Disqualified Stock or preferred stock of the Issuer or any Restricted Subsidiary not otherwise permitted hereunder in an aggregate principal amount or liquidation preference, which when aggregated with the principal amount and liquidation preference of all other Indebtedness, Disqualified Stock and preferred stock then outstanding and incurred pursuant to this clause (12)(B), does not at any one time outstanding exceed the greater of (x) $500.0 million and (y) 12.500% of Consolidated Total Assets at the time of incurrence (it being understood that any Indebtedness, Disqualified Stock or preferred stock incurred pursuant to this clause (12) (B) shall cease to be deemed incurred or outstanding for purposes of this clause (12)(B) but shall be deemed incurred for the purposes of Section 1007(a) from and after the first date on which the Issuer or such Restricted Subsidiary could have incurred such Indebtedness, Disqualified Stock or preferred stock under Section 1007(a) without reliance on this clause (12)(B));
(13) the incurrence or issuance by the Issuer or any Restricted Subsidiary of Indebtedness, Disqualified Stock or preferred stock which serves to Refinance any Indebtedness, Disqualified Stock or preferred stock incurred as permitted under Section 1007(a) and clauses (2), (3), 12(A), this clause (13) and clause (14) below or any
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Indebtedness, Disqualified Stock or preferred stock issued to so Refinance such Indebtedness, Disqualified Stock or preferred stock (the “Refinancing Indebtedness”) prior to its respective maturity; provided that such Refinancing Indebtedness:
(A) has a Weighted Average Life to Maturity at the time such Refinancing Indebtedness is incurred which is not less than (x) the remaining Weighted Average Life to Maturity of the Indebtedness, Disqualified Stock or preferred stock being Refinanced or (y) one year after the final stated maturity of the Notes;
(B) to the extent such Refinancing Indebtedness Refinances (i) Indebtedness subordinated to the Notes or any Guarantee of the Notes, such Refinancing Indebtedness is subordinated to the Notes or such Guarantee at least to the same extent as the Indebtedness being Refinanced or (ii) Disqualified Stock or preferred stock, such Refinancing Indebtedness must be Disqualified Stock or preferred stock, respectively;
(C) shall not include Indebtedness, Disqualified Stock or preferred stock of a Subsidiary of the Issuer that is not a Guarantor that Refinances Indebtedness, Disqualified Stock or preferred stock of the Issuer or a Guarantor; and
(D) shall not include Indebtedness, Disqualified Stock or preferred stock of a Restricted Subsidiary that refinances Indebtedness, Disqualified Stock or preferred stock of an Unrestricted Subsidiary;
and provided, further, that subclause (A) above of this clause (13) shall apply to any refunding or refinancing of any Secured Indebtedness outstanding;
(14) Indebtedness, Disqualified Stock or preferred stock of (x) the Issuer or a Restricted Subsidiary incurred or issued to finance an acquisition or (y) Persons that are acquired by the Issuer or any Restricted Subsidiary or merged into or consolidated with the Issuer or a Restricted Subsidiary in accordance with the terms of this Indenture (including designating an Unrestricted Subsidiary a Restricted Subsidiary); provided that after giving effect to such acquisition, merger or consolidation, either:
(A) the Issuer would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 1007(a), or
(B) the Fixed Charge Coverage Ratio of the Issuer and the Restricted Subsidiaries is equal to or greater than immediately prior to such acquisition, merger or consolidation;
(15) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business;
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(16) Indebtedness of the Issuer or any Restricted Subsidiary supported by a letter of credit issued pursuant to any Credit Facility, in a principal amount not in excess of the stated amount of such letter of credit;
(17) (A) any guarantee by the Issuer or a Restricted Subsidiary of Indebtedness or other obligations of any Restricted Subsidiary so long as, in the case of a guarantee by a Restricted Subsidiary that is not a Guarantor, such Indebtedness could have been incurred directly by the Restricted Subsidiary providing such guarantee, or
(A) any guarantee by a Restricted Subsidiary of Indebtedness of the Issuer, provided that such guarantee is incurred in accordance with Section 1011;
(18) Indebtedness of Restricted Subsidiaries that are not Guarantors at any one time outstanding not to exceed, in the aggregate, the greater of (x) $250.0 million and (y) 6.250% of Consolidated Total Assets at the time of incurrence (it being understood that any Indebtedness incurred pursuant to this clause (18) shall cease to be deemed incurred or outstanding for purposes of this clause (18) but shall be deemed incurred for the purposes of Section 1007(a) from and after the first date on which such Restricted Subsidiary could have incurred such Indebtedness under Section 1007(a) without reliance on this clause (18));
(19) Indebtedness of the Issuer or any of its Restricted Subsidiaries consisting of (i) the financing of insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case incurred in the ordinary course of business;
(20) Indebtedness of the Issuer or any of its Restricted Subsidiaries undertaken in connection with cash management and related activities with respect to any Subsidiary or joint venture in the ordinary course of business;
(21) Indebtedness consisting of Indebtedness issued by the Issuer or any of its Restricted Subsidiaries to future, current or former officers, directors, managers and employees thereof, their respective estates, spouses or former spouses, in each case to finance the purchase or redemption of Equity Interests of the Issuer or any direct or indirect parent company of the Issuer to the extent described in Section 1006(b)(4);
(22) Indebtedness of the Issuer (and Guarantees thereof by any Guarantor) to the extent that the net proceeds thereof are promptly deposited to defease, redeem or to satisfy and discharge the notes or repurchase the notes tendered in an offer made pursuant to the terms of this Indenture;
(23) Indebtedness (and any Refinancing of such Indebtedness) incurred by a Foreign Subsidiary which, when aggregated with the principal amount of all other Indebtedness incurred pursuant to this clause (23) and then outstanding, does not exceed the greater of (x) $250.0 million and (y) 6.250% of Consolidated Total Assets at the time such Indebtedness is incurred;
(24) Indebtedness (and any Refinancing of such Indebtedness) incurred on behalf of, or representing Guarantees of Indebtedness of, Unrestricted Subsidiaries not to exceed the greater of (x) $25.0 million and (y) 0.625% of Consolidated Total Assets at the time that such Indebtedness is incurred; and
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(25) Indebtedness in respect of matured or drawn Performance Guarantees, but only so long as such Indebtedness is reimbursed or extinguished within five (5) Business Days of being matured or drawn.
(c) For purposes of determining compliance with this Section 1007,
(1) in the event that an item of Indebtedness, Disqualified Stock or preferred stock (or any portion thereof) meets the criteria of more than one of the categories of permitted Indebtedness, Disqualified Stock or preferred stock described in clauses (1) through (25) of Section 1007(b) or is entitled to be incurred pursuant to Section 1007(a), the Issuer, in its sole discretion, may divide, classify or reclassify such item of Indebtedness, Disqualified Stock or preferred stock (or any portion thereof) and shall only be required to include the amount and type of such Indebtedness, Disqualified Stock or preferred stock in one of the above clauses of this Section 1007(b); provided that all Indebtedness outstanding under the Senior Credit Facility on the Issue Date after giving effect to the Transactions will, as long as such Indebtedness is outstanding, be treated as incurred on the Issue Date under Section 1007(b)(1); and
(2) at the time of incurrence, the Issuer shall be entitled to divide and classify an item of Indebtedness in more than one of the types of Indebtedness described in Sections 1007(a) and (b).
Accrual of interest or dividends, the accretion of accreted value, the accretion or amortization of original issue discount and the payment of interest or dividends in the form of additional Indebtedness, Disqualified Stock or preferred stock shall not be deemed to be an incurrence of Indebtedness, Disqualified Stock or preferred stock for purposes of this Section 1007. Any Refinancing Indebtedness and any Indebtedness incurred to refinance Indebtedness incurred pursuant to clauses (1) and (12) of Section 1007(b) shall be permitted to include additional Indebtedness, Disqualified Stock or preferred stock incurred to pay premiums (including reasonable tender premiums), defeasance costs, accrued and unpaid interest, fees and expenses in connection with such Refinancing.
For purposes of determining compliance with any U.S. dollar-denominated restriction on the incurrence of Indebtedness, the U.S. dollar-equivalent principal amount of Indebtedness denominated in another currency shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred, in the case of term debt, or first committed, in the case of revolving credit debt; provided that if such Indebtedness is incurred to Refinance other Indebtedness denominated in another currency, and such Refinancing would cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such Refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such Refinancing Indebtedness does not exceed (i) the principal amount of such Indebtedness being Refinanced plus (ii) the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses incurred in connection with such Refinancing.
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(d) This Indenture shall not treat (1) unsecured Indebtedness as subordinated or junior to Secured Indebtedness merely because it is unsecured or (2) Senior Indebtedness as subordinated or junior to any other Senior Indebtedness merely because it has a junior priority with respect to the same collateral.
SECTION 1008. Liens. The Issuer shall not, and shall not permit any Guarantor to, directly or indirectly, create, incur, assume or suffer to exist any Lien (except Permitted Liens) that secures obligations under any Indebtedness or any related Guarantee on any asset or property of the Issuer or any Guarantor, or any income or profits therefrom, or assign or convey any right to receive income therefrom, unless the Notes (or the related Guarantee in the case of Liens of a Guarantor) are equally and ratably secured with (or, in the event the Lien relates to Subordinated Indebtedness, are secured on a senior basis to) the obligations so secured. Any Lien created for the benefit of the Holders of the Notes pursuant to this Section 1008 will provide by its terms that such Lien shall be automatically and unconditionally released and discharged upon the release and discharge of the Lien that gave rise to the obligation to secure the Notes.
SECTION 1009. Limitations on Transactions with Affiliates.
(a) The Issuer shall not, and shall not permit any Restricted Subsidiary to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Issuer (each of the foregoing, an “Affiliate Transaction”) involving aggregate payments or consideration in excess of $50.0 million, unless:
(1) such Affiliate Transaction is on terms that are not materially less favorable to the Issuer or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Issuer or such Restricted Subsidiary with an unrelated Person on an arm’s-length basis; and
(2) the Issuer delivers to the Trustee with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate payments or consideration in excess of $150.0 million, a resolution adopted by the majority of the Board of Directors of the Issuer approving such Affiliate Transaction and set forth in an Officer’s Certificate certifying that such Affiliate Transaction complies with clause (1) above.
(b) The foregoing provisions shall not apply to the following:
(1) (i) transactions between or among the Issuer and/or any of its Restricted Subsidiaries or any entity that becomes a Restricted Subsidiary as a result of such transaction and (ii) any merger or consolidation of the Issuer or any direct or indirect parent of the Issuer; provided that such parent company shall have no material liabilities and no material assets other than cash, Cash Equivalents and the Capital Stock of the Issuer and such merger or consolidation is otherwise in compliance with the terms of this Indenture;
(2) any Permitted Investments or Restricted Payments permitted by the provisions of this Indenture;
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(3) transactions pursuant to compensatory, benefit and incentive plans and similar agreements with officers, directors, managers or employees of the Issuer or any of its Restricted Subsidiaries;
(4) the payment of reasonable and customary fees and compensation paid to, and indemnities and reimbursements and employment and severance arrangements provided on behalf of, or for the benefit of, former, current or future officers, directors, managers, employees or consultants of the Issuer, any direct or indirect parent company of the Issuer or any Restricted Subsidiary;
(5) transactions in which the Issuer or any Restricted Subsidiary, as the case may be, delivers to the Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to the Issuer or such Restricted Subsidiary from a financial point of view or stating that the terms are not materially less favorable to the Issuer or its relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Issuer or such Restricted Subsidiary with an unrelated Person on an arm’s-length basis;
(6) any agreement or arrangement in effect as of the Issue Date, or any amendment, modification, or supplement thereto or replacement thereof (so long as any such amendment, modification, supplement or replacement is not disadvantageous in any material respect to the Holders when taken as a whole as compared to the applicable agreement as in effect on the Issue Date) or any transaction or payments contemplated thereby;
(7) the existence of, or the performance by the Issuer or any Restricted Subsidiary of its obligations under the terms of, any stockholders agreement or the equivalent (including any registration rights agreement or purchase agreement related thereto) to which it is a party as of the Issue Date and any similar agreements which it may enter into thereafter; provided that the existence of, or the performance by the Issuer or any Restricted Subsidiary of obligations under any future amendment to any such existing agreement or under any similar agreement entered into after the Issue Date shall only be permitted by this clause (7) to the extent that the terms of any such amendment or new agreement are not otherwise disadvantageous to the Holders in any material respect when taken as a whole;
(8) the Transactions and the payment of all fees and expenses related to the Transactions;
(9) transactions with customers, clients, suppliers, joint venture partners or purchasers or sellers of goods or services, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture which are fair to the Issuer and its Restricted Subsidiaries, in the reasonable determination of the Board of Directors of the Issuer or the senior management thereof, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party;
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(10) the issuance or transfer of Equity Interests (other than Disqualified Stock) of the Issuer and the granting and performance of customary registration rights;
(11) sales of accounts receivable, or participations therein, in connection with any Receivables Facility;
(12) payments, loans, advances or guarantees (or cancellation of loans, advances or guarantees) to future, current or former employees, officers, directors, managers or consultants of the Issuer, any direct or indirect parent company of the Issuer or any Restricted Subsidiary and employment agreements, stock option plans and other similar arrangements with such employees, directors, manager or consultants which, in each case, are approved by the Issuer in good faith;
(13) any transaction in which the only consideration paid by the Issuer or any Restricted Subsidiary consists of Equity Interests (other than Disqualified Stock) of the Issuer;
(14) payments to any future, current or former employee, director, manager, officer, manager or consultant of the Issuer, any of its Subsidiaries or any direct or indirect parent company of the Issuer pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement or any stock subscription or shareholder agreement; and any employment or severance agreements, stock option plans, severance plans and other compensatory arrangements (and any successor plans thereto) and any supplemental executive retirement benefit plans or arrangements with any such employees, directors, officers, managers or consultants that are, in each case, approved by the Issuer in good faith;
(15) any transaction with a Person (other than an Unrestricted Subsidiary) which would constitute an Affiliate Transaction solely because the Issuer or a Restricted Subsidiary owns an Equity Interest in or otherwise controls such Person;
(16) payments by the Issuer with which the Issuer is a member of a group filing a consolidated, combined or unitary income tax return (and any direct or indirect parent company of the Issuer) and its Subsidiaries pursuant to tax sharing agreements among the Issuer (and any direct or indirect parent company of the Issuer described above) and its Subsidiaries; provided that in each case the amount of such payments in any fiscal year does not exceed the amount that the Issuer, its Restricted Subsidiaries and its Unrestricted Subsidiaries (to the extent of the amount received from Unrestricted Subsidiaries) would be required to pay in respect of foreign, federal, state and local taxes for such fiscal year were the Issuer, its Restricted Subsidiaries and its Unrestricted Subsidiaries (to the extent described above, in amounts required to pay such taxes to the extent attributable to the income of such Unrestricted Subsidiaries) to pay such taxes separately from any such direct or indirect parent company of the Issuer, taking into account any carryovers and carrybacks of tax attributes (such as net operating losses) and without duplication of any taxes paid directly by the Issuer and the Subsidiaries; provided, that payments under such tax sharing agreements shall not exceed, and shall not be duplicative of, the amounts described under Section 1006(b)(15)(B);
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(17) any lease entered into between the Issuer or any Restricted Subsidiary and any Affiliate of the Issuer in the ordinary course of business;
(18) intellectual property licenses in the ordinary course of business;
(19) transactions between the Issuer or any of its Restricted Subsidiaries and any Person that would constitute an Affiliate Transaction solely because a director of which is also a director of the Issuer or any other direct or indirect parent of the Issuer; provided, however, that such director abstains from voting as a director of the Issuer or such direct or indirect parent of the Issuer, as the case may be, on any matter involving such other Person;
(20) pledges of Equity Interests of Unrestricted Subsidiaries;
(21) transactions with joint ventures for the purchase or sale of goods, equipment and services entered into in the ordinary course of business; and
(22) any merger, consolidation or reorganization of the Issuer or Restricted Subsidiary with an Affiliate of the Issuer or Restricted Subsidiary solely for the purpose of reincorporating the Issuer or Restricted Subsidiary in a new jurisdiction.
SECTION 1010. Limitations on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. The Issuer shall not, and shall not permit any of its Restricted Subsidiaries that are not Guarantors to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(a) (1) pay dividends or make any other distributions to the Issuer or any Restricted Subsidiary on its Capital Stock or with respect to any other interest or participation in, or measured by, its profits, or (2) pay any Indebtedness owed to the Issuer or any Restricted Subsidiary;
(b) make loans or advances to the Issuer or any Restricted Subsidiary; or
(c) sell, lease or transfer any of its properties or assets to the Issuer or any Restricted Subsidiary, except (in each case) for such encumbrances or restrictions existing under or by reason of:
(1) contractual encumbrances or restrictions in effect on the Issue Date, including, pursuant to the Senior Credit Facility and the related documentation and related Hedging Obligations;
(2) this Indenture, the Notes and the Guarantees;
(3) purchase money obligations for property acquired in the ordinary course of business and Finance Lease Obligations that impose restrictions of the nature discussed in clause (c) above on the property so acquired;
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(4) applicable law or any applicable rule, regulation or order;
(5) any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Issuer or any Restricted Subsidiary, or of an Unrestricted Subsidiary that is designated a Restricted Subsidiary, or that is assumed in connection with the acquisition of assets from such Person, in each case that is in existence at the time of such transaction (but not created in contemplation thereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person and its Subsidiaries, or the property or assets of the Person and its Subsidiaries, so acquired or designated;
(6) contracts for the sale of assets, including customary restrictions with respect to a Subsidiary of the Issuer pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;
(7) Secured Indebtedness otherwise permitted to be incurred pursuant to Sections 1007 and 1008 that limit the right of the debtor to dispose of the collateral securing such Indebtedness;
(8) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(9) other Indebtedness, Disqualified Stock or preferred stock of Restricted Subsidiaries permitted to be incurred subsequent to the Issue Date pursuant to Section 1007;
(10) customary provisions in joint venture agreements or arrangements and other similar agreements or arrangements relating solely to such joint venture and asset sale agreements and Sale and Lease-Back Transaction agreements;
(11) customary provisions contained in leases, sub-leases, licenses, sub-licenses or similar agreements, in each case, entered into in the ordinary course of business;
(12) restrictions created in connection with any Receivables Facility that, in the good faith determination of the Board of Directors of the Issuer, are necessary or advisable to effect such Receivables Facility;
(13) restrictions or conditions contained in any trading, netting, operating, construction, service supply, purchase, sale or other agreement to which the Issuer or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of the Issuer or such Restricted Subsidiary that are the subject of such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Issuer or such Restricted Subsidiary or the assets or property of any other Restricted Subsidiary; and
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(14) any encumbrances or restrictions of the type referred to in clauses (a), (b) and (c) above imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (1) through (13) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Issuer’s Board of Directors, no more restrictive in any material respect with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
(d) For purposes of determining compliance with the covenants set forth in this Section 1010: (i) the priority of any preferred stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock and (ii) the subordination of loans or advances made to the Issuer or a Restricted Subsidiary of the Issuer to other Indebtedness incurred by the Issuer or any such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
SECTION 1011. Limitation on Guarantees of Indebtedness by Restricted Subsidiaries. The Issuer shall not permit any of its Wholly-Owned Subsidiaries that are Restricted Subsidiaries (and non-Wholly-Owned Subsidiaries if such non-Wholly-Owned Subsidiaries guarantee other capital markets debt securities of the Issuer or a Guarantor or the Issuers or a Guarantor’s obligations under the Senior Credit Facility), other than a Guarantor, a Foreign Subsidiary or a Receivables Subsidiary, to guarantee the payment of any Indebtedness of the Issuer or any other Guarantor (other than Indebtedness payable to the Issuer or a Restricted Subsidiary) unless:
(1) such Restricted Subsidiary within 30 days executes and delivers a supplemental indenture to this Indenture providing for a Guarantee by such Restricted Subsidiary the form of which is attached as Exhibit A hereto; provided that, if such Indebtedness is by its express terms subordinated in right of payment to the Notes or such Guarantor’s Guarantee of the Notes, any such guarantee of such Restricted Subsidiary with respect to such Indebtedness shall be subordinated in right of payment to such Restricted Subsidiary’s Guarantee with respect to the Notes substantially to the same extent as such Indebtedness is subordinated to the Notes; and
(2) such Restricted Subsidiary waives and shall not in any manner whatsoever claim or take the benefit or advantage of, any rights of reimbursement, indemnity or subrogation or any other rights against the Issuer or any other Restricted Subsidiary as a result of any payment by such Restricted Subsidiary under its Guarantee;
provided that this Section 1011 shall not be applicable to any guarantee of any Restricted Subsidiary that existed at the time such Person became a Restricted Subsidiary and was not incurred in connection with, or in contemplation of, such Person becoming a Restricted Subsidiary.
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SECTION 1012. Change of Control.
(a) If a Change of Control Triggering Event occurs after the Issue Date, unless the Issuer has, prior to or concurrently with the time the Issuer is required to make a Change of Control Offer (as defined below), delivered electronically or mailed a redemption notice with respect to all the Outstanding Notes pursuant to Section 401 and Section 1105, the Issuer shall make an offer to purchase all of the Notes pursuant to the offer described below (the “Change of Control Offer”) at a price in cash (the “Change of Control Payment”) equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest, if any, to, but excluding the date of purchase, subject to the right of Holders of record on the relevant record date to receive interest due on the relevant Interest Payment Date. No later than 30 days following any Change of Control Triggering Event, the Issuer shall send notice of such Change of Control Offer by first class mail or overnight mail, with a copy to the Trustee sent in the same manner, to each Holder to the address of such Holder appearing in the security register or otherwise in accordance with the procedures of the Depository, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Section 1012 and that all Notes properly tendered pursuant to such Change of Control Offer shall be accepted for payment by the Issuer;
(2) the purchase price and the purchase date, which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”);
(3) that any Note not properly tendered shall remain outstanding and continue to accrue interest;
(4) that, unless the Issuer defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest on the Change of Control Payment Date;
(5) that Holders electing to have any Notes purchased pursuant to a Change of Control Offer shall be required to surrender the Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Notes completed, to the Paying Agent specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment Date;
(6) that Holders shall be entitled to withdraw their tendered Notes and their election to require the Issuer to purchase such Notes; provided that the Paying Agent receives, not later than the expiration time of the Change of Control Offer, electronic transmission (in PDF), facsimile transmission or letter (sent in the same manner provided in the Change of Control Offer) setting forth the name of the Holder of the Notes, the principal amount of Notes tendered for purchase, and a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased;
(7) that if the Issuer is purchasing less than all of the Notes held by any Holder, the Holder will be issued new Notes and such new Notes will be equal in principal amount to the unpurchased portion of the Notes surrendered. The unpurchased portion of the Notes must be equal to $2,000 or an integral multiple of $1,000 in excess thereof;
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(8) if such notice is delivered prior to the occurrence of a Change of Control Triggering Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Triggering Event and if applicable, shall state that, in the Issuer’s discretion, the Change of Control Payment Date may be delayed until such time as the Change of Control Triggering Event shall occur, or that such redemption may not occur and such notice may be rescinded in the event that the Issuer shall determine that such condition will not be satisfied by the Change of Control Payment Date, or by the Change of Control Payment as so delayed; and
(9) the other instructions, as determined by us, consistent with this Section 1012, that a Holder must follow.
(b) While the Notes are in global form and the Issuer makes an offer to purchase all of the Notes pursuant to the Change of Control Offer, a Holder may exercise its option to elect for the purchase of the Notes through the facilities of the Depository, subject to its rules and regulations.
(c) the Issuer shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of the Notes pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Issuer shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations described in this Indenture by virtue thereof.
(d) On the Change of Control Payment Date, the Issuer shall, to the extent permitted by law,
(1) accept for payment all Notes issued by it or portions thereof properly tendered pursuant to the Change of Control Offer,
(2) unless deposited before the Change of Control Payment Date, deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Notes or portions thereof so tendered, and
(3) deliver, or cause to be delivered, to the Trustee for cancellation the Notes so accepted together with an Officer’s Certificate stating that all Notes or portions thereof have been tendered to and purchased by the Issuer.
(e) In the event that the Issuer makes a Change of Control Payment, the Paying Agent shall promptly deliver or mail to each Holder of the Notes the Change of Control Payment received by the Paying Agent for such Notes, and upon receipt of written direction from the Issuer, the Trustee shall promptly authenticate a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. The Issuer shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date.
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(f) The Issuer shall not be required to make a Change of Control Offer following a Change of Control Triggering Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all such Notes validly tendered and not withdrawn under such Change of Control Offer. Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control Triggering Event, if a definitive agreement is in place for the Change of Control Triggering Event at the time of the making of such Change of Control Offer.
(g) The provisions of this Section 1012, including the definition of “Change of Control,” may be waived or modified with the written consent of the Holders of a majority in principal amount of the Notes.
SECTION 1013. Asset Sales.
(a) The Issuer shall not, and shall not permit any Restricted Subsidiary to consummate, directly or indirectly, an Asset Sale, unless:
(1) the Issuer or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value (as determined at the time of contractually agreeing to such Asset Sale) of the assets sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, at least 75% of the consideration from such Asset Sale and all other Asset Sales since the Issue Date, on a cumulative basis received by the Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of:
(A) any liabilities (as reflected on the Issuer’s most recent consolidated balance sheet or in the footnotes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Issuer’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Issuer) of the Issuer, other than liabilities that are by their terms subordinated to the Notes, that are assumed by the transferee of any such assets (or are otherwise extinguished in connection with the transactions relating to such Asset Sale) and for which the Issuer and all such Restricted Subsidiaries have been validly released by all applicable creditors in writing,
(B) any securities, notes or other obligations or assets received by the Issuer or such Restricted Subsidiary from such transferee that are converted by the Issuer or such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within 180 days following the closing of such Asset Sale and
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(C) any Designated Non-cash Consideration received by the Issuer or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (C) that is at that time outstanding, not to exceed the greater of (x) $100.0 million and (y) 2.500% of Consolidated Total Assets at the time of the receipt of such Designated Non-cash Consideration, with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash for purposes of this provision and for no other purpose.
(b) Within 450 days after the Issuer’s or any Restricted Subsidiary’s receipt of the Net Proceeds of any Asset Sale, the Issuer or such Restricted Subsidiary, at its option, may apply the Net Proceeds from such Asset Sale:
(1) to:
(A) reduce revolving Indebtedness outstanding under Credit Facilities (and permanently reduce commitments thereunder) or to permanently reduce other Indebtedness under Credit Facilities to the extent such Indebtedness was incurred under Section 1007(b)(1), and to correspondingly reduce any outstanding commitments with respect thereto;
(B) permanently repay or reduce Obligations under Senior Secured Indebtedness of the Issuer or a Guarantor, and to correspondingly reduce any outstanding commitments with respect thereto;
(C) permanently repay or reduce Obligations under the Notes or any other Senior Indebtedness of the Issuer or any Restricted Subsidiary (and, in the case of other Senior Indebtedness, to correspondingly reduce any outstanding commitments with respect thereto, if applicable); provided that if the Issuer or any Restricted Subsidiary shall so repay any such Senior Indebtedness other than the Notes, the Issuer or such Restricted Subsidiary shall either reduce Obligations under the Notes on a pro rata basis by, at its option, (A) redeeming Notes as described under Section 1101 or (B) purchasing notes through open market purchases, at a price equal to or higher than 100% of the principal amount thereof, in a manner that complies with this Indenture and applicable securities law or make an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders to purchase their Notes on a ratable basis with such other Senior Indebtedness for no less than 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, thereon up to the principal amount of Notes to be repurchased; or
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(D) permanently repay or reduce Indebtedness of a Restricted Subsidiary that is not a Guarantor, other than Indebtedness owed to the Issuer or another Restricted Subsidiary;
(2) to make (a) an Investment in any one or more businesses; provided that such Investment in any business is in the form of the acquisition of Capital Stock and results in the Issuer or a Restricted Subsidiary, as the case may be, owning an amount of the Capital Stock of such business such that it constitutes or continues to constitute a Restricted Subsidiary, (b) capital expenditures or (c) acquisitions of other property or assets, in the case of each of (a), (b) and (c), either (i) used or useful in a Similar Business or (ii) that replace the businesses, properties and/or assets that are the subject of such Asset Sale; provided that the Issuer and its Restricted Subsidiaries shall be deemed to have complied with this clause (2) if and to the extent that, within 450 days after the Asset Sale that generated the Net Proceeds, the Issuer or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement to consummate any such investment described in this clause (2) with the good faith expectation that such Net Proceeds will be applied to satisfy such commitment within 180 days of such commitment (an “Acceptable Commitment”) and, in the event any Acceptable Commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, the Issuer or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided, further, that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then such Net Proceeds shall constitute Excess Proceeds; or
(3) any combination of the foregoing.
(c) Any Net Proceeds from any Asset Sale that are not invested or applied in accordance with Section 1013(b) within the time set forth therein will be deemed to constitute “Excess Proceeds.” Within ten (10) Business Days after the date that the aggregate amount of Excess Proceeds exceeds the greater of (x) $100.0 million and (y) 2.500% of Consolidated Total Assets, the Issuer shall make an offer to all Holders of the Notes, and, if required by the terms of any Indebtedness that is pari passu with the Notes (“Pari Passu Indebtedness”), to the holders of such Pari Passu Indebtedness (an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of Notes and such Pari Passu Indebtedness, and with respect to the Notes only in denominations of $2,000 initial principal amount and multiples of $1,000 thereafter, that may be purchased out of the Excess Proceeds at an offer price, in the case of the Notes, in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, to the date fixed for the closing of such offer, in accordance with the procedures set forth in this Indenture. In the event that the Issuer or a Restricted Subsidiary prepays any Pari Passu Indebtedness that is outstanding under a revolving credit or other committed loan facility pursuant to an Asset Sale Offer, the Issuer or such Restricted Subsidiary shall cause the related loan commitment to be reduced in an amount equal to the principal amount so prepaid.
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The Issuer shall commence an Asset Sale Offer by transmitting electronically or by mailing the notice required pursuant to the terms of this Indenture, with a copy to the Trustee. To the extent that the aggregate amount of Notes and, if applicable, Pari Passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds (or, in the case of an Asset Sale Offer being effected in advance of being required to do so by this Indenture, the amount of Net Proceeds the Issuer is offering to apply in such Asset Sale Offer), the Issuer may use any remaining Excess Proceeds (or such amount offered) in any manner not prohibited by this Indenture. If the aggregate principal amount of Notes and, if applicable, Pari Passu Indebtedness surrendered in an Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased or repaid on a pro rata basis and in accordance with the procedures of the Depository; provided that no Notes of $2,000 or less shall be repurchased in part. Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero, and in the case of an Asset Sale Offer being effected in advance of being required to do so by this Indenture, the amount of Net Proceeds the Issuer is offering to apply in such Asset Sale Offer shall be excluded in subsequent calculations of Excess Proceeds.
(d) Pending the final application of any Net Proceeds pursuant to this Section 1013, the Issuer or the applicable Restricted Subsidiary may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under a revolving credit facility or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture.
(e) The Issuer shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of the Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Issuer shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations described in this Indenture by virtue thereof.
(f) The provisions under this Indenture relating to the Issuer’s obligation to make an offer to repurchase the notes as a result of an Asset Sale may be waived or modified with the written consent of the Holders of a majority in principal amount of the notes.
(g) Notices of purchase or redemption shall be delivered electronically or mailed by first-class mail, postage prepaid, at least 30 but not more than 60 days before the purchase or redemption date to the Trustee and each Holder of Notes at such Holder’s registered address or otherwise in accordance with the procedures of the Depository, except that redemption notices may be mailed more than 60 days prior to a Redemption Date if the notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge of this Indenture. If any Note is to be purchased or redeemed in part only, any notice of purchase or redemption that relates to such Note shall state the portion of the principal amount thereof that has been or is to be purchased or redeemed.
(h) If any Notes are to be purchased or redeemed in part only, the Issuer shall issue a new Note in principal amount equal to the unredeemed portion of the original Note in the name of the Holder thereof upon cancellation of the original Note. Notes called for redemption become due on the date fixed for redemption, unless such redemption is conditioned on the happening of a future event. On and after the Redemption Date, unless the Issuer defaults in payment of the Redemption Price, interest shall cease to accrue on Notes or portions thereof called for redemption, unless such redemption is conditioned on the happening of a future event.
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SECTION 1014. Suspension of Covenants.
(a) During any period of time that: (1) the Notes have Investment Grade Ratings from both Rating Agencies and (2) no Default or Event of Default has occurred and is continuing under this Indenture (the occurrence of the events described in the foregoing clauses (1) and (2) being collectively referred to as a “Covenant Suspension Event”), the Issuer and the Restricted Subsidiaries shall not be subject to the following provisions of this Indenture:
(A) clause (a)(4) of Section 801;
(B) Section 1006;
(C) Section 1007;
(D) Section 1009;
(E) Section 1010;
(F) Section 1011; and
(G) Section 1013;
(collectively, the “Suspended Covenants”). Upon the occurrence of a Covenant Suspension Event (the date of such occurrence, the “Suspension Date”), the amount of Excess Proceeds from Net Proceeds shall be set at zero. In the event that the Issuer and the Restricted Subsidiaries are not subject to the Suspended Covenants for any period of time as a result of the foregoing, and on any subsequent date (the “Reversion Date”) one or both of the Rating Agencies withdraws its Investment Grade Rating or downgrades the rating assigned to the Notes below an Investment Grade Rating, then the Issuer and the Restricted Subsidiaries will thereafter again be subject to the Suspended Covenants with respect to future events. The period of time between the Suspension Date and the Reversion Date is referred to in this description as the “Suspension Period.” Notwithstanding that the Suspended Covenants may be reinstated, no Default, Event of Default or breach of any kind shall be deemed to exist under this Indenture, the Notes or the Guarantees with respect to the Suspended Covenants, and none of the Issuer or any of its Subsidiaries shall bear any liability for any actions taken or events occurring during the Suspension Period, or any actions taken at any time pursuant to any contractual obligation arising prior to the Reversion Date, as a result of a failure to comply with the Suspended Covenants during the Suspension Period (or upon termination of the Suspension Period or after that time based solely on events that occurred during the Suspension Period). The Issuer shall provide an Officer’s Certificate to the Trustee indicating the occurrence of any Suspension Date or Reversion Date. The Trustee shall have no obligation to independently determine or verify if such events have occurred or notify the Holders of any Suspension Date or Reversion Date. The Trustee may provide a copy of such Officer’s Certificate to any Holder upon request.
(b) On the Reversion Date, all Indebtedness incurred, or Disqualified Stock issued, during the Suspension Period shall be deemed to have been outstanding on the Issue Date, so they are classified to have been incurred or issued pursuant to Section 1007(b) (3). On the Reversion Date, all Liens created, incurred or assumed during the Suspension Period in
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compliance with this Indenture will be deemed to have been outstanding on the Issue Date, so that they are classified as permitted under clause (7) of the definition of “Permitted Liens.” Calculations made after the Reversion Date of the amount available to be made as Restricted Payments under Section 1006 shall be made as though Section 1006 had been in effect since the Issue Date and throughout the Suspension Period, but with the actions taken by the Issuer and its Restricted Subsidiaries during the Suspension Period having no effect on such calculation. No Subsidiaries shall be designated as Unrestricted Subsidiaries during any Suspension Period. Any Affiliate Transaction entered into after the Reversion Date pursuant to an agreement entered into during any Suspension Period shall be deemed to be permitted pursuant Section 1009(b)(6). Any encumbrance or restriction on the ability of any Restricted Subsidiary that is not a Guarantor to take any action described in Section 1010(a) through (c) that becomes effective during any Suspension Period shall be deemed to be permitted pursuant to Section 1010(c)(1).
SECTION 1015. Financial Calculations for Limited Condition Transactions.
(a) When calculating the availability under any basket or ratio under this Indenture or compliance with any provision of this Indenture in connection with any Limited Condition Transaction and any actions or transactions related thereto (including acquisitions, distributions, dividends, Investments, the incurrence or creation of Liens and repayments), in each case, at the option of the Issuer (the Issuer’s election to exercise such option, an “LCT Election”), the date of determination for availability under any such basket or ratio and whether any such action or transaction is permitted (or any requirement or condition therefor is complied with or satisfied (including as to the absence of any continuing Default or Event of Default)) under this Indenture shall be deemed to be the date (the “LCT Test Date”) either (a) the definitive agreement for such Limited Condition Transaction is entered into (or, if applicable, the date of delivery of an irrevocable declaration of a Restricted Payment or similar event), or (b) solely in connection with an acquisition to which the United Kingdom City Code on Takeovers and Mergers applies, the date on which a “Rule 2.7 announcement” of a firm intention to make an offer (or equivalent announcement in another jurisdiction) (an “LCT Public Offer”) in respect of a target of a Limited Condition Transaction and, in each case, after giving pro forma effect to the Limited Condition Transaction and any actions or transactions related thereto (including acquisitions, distributions, dividends, Investments, the incurrence or creation of Liens and repayments) and any related pro forma adjustments consistent with the pro forma adjustment provisions set forth in the definition of Fixed Charge Coverage Ratio, the Issuer or any of its Subsidiaries would have been permitted to take such actions or consummate such transactions on the relevant LCT Test Date in compliance with such ratio, test or basket (and any related requirements and conditions), such ratio, test or basket (and any related requirements and conditions) shall be deemed to have been complied with (or satisfied) for all purposes (in the case of Indebtedness, for example, whether such Indebtedness is committed, issued, assumed or incurred at the LCT Test Date or at any time thereafter); provided, that compliance with such ratios, test or baskets (and any related requirements and conditions) shall not be determined or tested at any time after the applicable LCT Test Date for such Limited Condition Transaction and any actions or transaction related thereto (including acquisitions, distributions, dividends, Investments, the incurrence or creation of Liens and repayments).
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(b) For the avoidance of doubt, if the Issuer has made an LCT Election, (1) if any of the ratios, tests or baskets for which compliance was determined or tested as of the LCT Test Date would at any time after the LCT Test Date have been exceeded or otherwise failed to have been complied with as a result of fluctuations in any such ratio, test or basket, including due to fluctuations in EBITDA of the Issuer or the target company, such baskets, tests or ratios will not be deemed to have been exceeded or failed to have been complied with as a result of such fluctuations; (2) if any related requirements and conditions (including as to the absence of any continuing Default or Event of Default) for which compliance or satisfaction was determined or tested as of the LCT Test Date would at any time after the LCT Test Date not have been complied with or satisfied (including due to the occurrence or continuation of a Default or Event of Default), such requirements and conditions will not be deemed to have been failed to be complied with or satisfied (and such Default or Event of Default shall be deemed not to have occurred or be continuing); and (3) in calculating the availability under any ratio, test or basket in connection with any action or transaction unrelated to such Limited Condition Transaction following the relevant LCT Test Date and prior to the earlier of the date on which such Limited Condition Transaction is consummated or the date that the definitive agreement or date for redemption, purchase or repayment specified in an irrevocable notice for such Limited Condition Transaction is terminated, expires or passes (or, if applicable, the irrevocable notice is terminated, expires or passes or, as applicable, the offer in respect of an LCT Public Offer for, such acquisition is terminated), as applicable, without consummation of such Limited Condition Transaction, any such ratio, test or basket shall be determined or tested giving pro forma effect to such Limited Condition Transaction, including any Indebtedness related thereto.
ARTICLE ELEVEN
REDEMPTION OF NOTES
SECTION 1101. Right of Redemption.
(a) At any time prior to March 1, 2029, the Issuer may redeem all or a part of the Notes, upon notice as set forth in Section 1105, at a Redemption Price equal to 100% of the principal amount of Notes redeemed plus the Applicable Premium as of, and accrued and unpaid interest, if any, to, but excluding, the date of redemption (the “Redemption Date”), subject to the rights of Holders of record of Notes on the relevant Regular Record Date to receive interest due on the relevant Interest Payment Date.
(b) On and after March 1, 2029, the Issuer may redeem the Notes, in whole or in part, upon notice as set forth in Section 1105, at the Redemption Prices (expressed as percentages of principal amount of Notes to be redeemed) set forth below, plus accrued and unpaid interest thereon, if any, to, but excluding, the applicable Redemption Date, subject to the right of Holders of record of Notes on the relevant Regular Record Date to receive interest due on the relevant Interest Payment Date, if redeemed during the twelve-month period beginning on March 1 of each of the years indicated below:
| Year | Percentage | |||
| 2029 | 102.688 | % | ||
| 2030 | 101.344 | % | ||
| 2031 and thereafter |
100.000 | % | ||
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(c) In addition, at any time prior to March 1, 2029, the Issuer may, at its option, upon notice as set forth in Section 1105, on one or more occasions redeem up to 40% of the aggregate principal amount of Notes issued under this Indenture at a Redemption Price equal to 105.375% of the aggregate principal amount thereof, plus accrued and unpaid interest thereon, if any, to, but excluding, the applicable Redemption Date, subject to the right of Holders of record of Notes on the relevant Regular Record Date to receive interest due on the relevant Interest Payment Date, with the net cash proceeds of one or more Equity Offerings to the extent such net cash proceeds are received or contributed to the Issuer; provided that at least 50% of the sum of the aggregate principal amount of Notes originally issued under this Indenture (including any Additional Notes issued under this Indenture after the Issue Date) remains outstanding immediately after the occurrence of each such redemption unless all such Notes are redeemed substantially concurrently; provided, further, that each such redemption occurs within 180 days of the date of closing of each such Equity Offering.
(d) Notwithstanding the foregoing, in connection with any tender offer for the Notes, including a Change of Control Offer or Asset Sale Offer, if Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not withdraw such notes in such tender offer and the Issuer, or any third party making such tender offer in lieu of the Issuer, purchases all of the Notes validly tendered and not withdrawn by such Holders, the Issuer or such third party will have the right upon not less than 10 days nor more than 60 days’ prior notice, given not more than 30 days following such purchase date, to redeem all Notes that remain outstanding following such purchase at a redemption price equal to the price offered to each other Holder (excluding any early tender or incentive fee) in such tender offer plus, to the extent not included in the tender offer payment, accrued and unpaid interest, if any, thereon, to, but excluding, the date of such redemption.
SECTION 1102. Applicability of Article. Redemption of Notes at the election of the Issuer or otherwise, as permitted or required by any provision of this Indenture, shall be made in accordance with such provision and this Article.
SECTION 1103. Election to Redeem; Notice to Trustee. In case of any redemption at the election of the Issuer, the Issuer shall, at least three Business Days before notice of redemption is required to be sent to Holders pursuant to Section 1105 hereof (unless a shorter notice shall be satisfactory to the Trustee) but not more than 60 days before a Redemption Date, notify the Trustee of such Redemption Date and of the principal amount of Notes to be redeemed and, if required, shall deliver to the Trustee such documentation and records as shall enable the Trustee to select the Notes to be redeemed pursuant to Section 1104.
SECTION 1104. Selection by Trustee of Notes to Be Redeemed. With respect to any partial redemption or repurchase of Notes made pursuant to this Indenture, if less than all of the Notes are to be redeemed at any given time, selection of such Notes for redemption will be made by the Trustee on a pro rata basis, by lot or by such other method, all in accordance with the procedures of the Depository; provided that no Notes of $2,000 or less shall be redeemed or repurchased in part.
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Notices of purchase or redemption shall be delivered electronically or mailed by first-class mail, postage prepaid, at least 10 but not more than 60 days before the purchase or Redemption Date to the Trustee and each Holder at such Holder’s registered address or otherwise in accordance with the procedures of the Depository, except that redemption notices may be delivered electronically or mailed more than 60 days prior to a Redemption Date if the notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge of this Indenture. If any Note is to be purchased or redeemed in part only, any notice of purchase or redemption that relates to such Note shall state the portion of the principal amount thereof that has been or is to be purchased or redeemed.
If any Notes are to be purchased or redeemed in part only, the Issuer will issue a new Note in principal amount equal to the unredeemed portion of the original Note in the name of the Holder thereof upon cancellation of the original Note. Notes called for redemption become due on the date fixed for redemption, unless such redemption is conditioned on the happening of a future event. On and after the Redemption Date, unless the Issuer defaults in payment of the Redemption Price, interest shall cease to accrue on Notes or portions thereof called for redemption, unless such redemption is conditioned on the happening of a future event.
SECTION 1105. Notice of Redemption. Notice of redemption shall be given in the manner provided for in Section 107 not less than 10 nor more than 60 days prior to the Redemption Date, to each Holder to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price and the amount of accrued interest to the Redemption Date payable as provided in Section 1107, if any,
(3) if less than all Outstanding Notes are to be redeemed, the identification (and, in the case of a partial redemption, the principal amounts) of the particular Notes to be redeemed,
(4) in case any Note is to be redeemed in part only, the notice which relates to such Note shall state that on and after the Redemption Date, upon surrender of such Note, the Holder will receive, without charge, a new Note or Notes of authorized denominations for the principal amount thereof remaining unredeemed,
(5) that on the Redemption Date the Redemption Price (and accrued interest, if any, to the Redemption Date payable as provided in Section 1107) will become due and payable upon each such Note, or the portion thereof, to be redeemed, and that interest thereon will cease to accrue on and after said date,
(6) any condition precedent to the redemption;
(7) the place or places where such Notes are to be surrendered for payment of the Redemption Price and accrued interest, if any,
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(8) the name and address of the Paying Agent,
(9) that Notes called for redemption must be surrendered to the Paying Agent to collect the Redemption Price,
(10) CUSIP, ISIN or “Common Code” number and that no representation is made as to the accuracy or correctness of the CUSIP, ISIN or “Common Code” number, if any, listed in such notice or printed on the Notes, and
(11) the paragraph of the Notes pursuant to which the Notes are to be redeemed.
Notice of redemption of Notes to be redeemed at the election of the Issuer shall be given by the Issuer or, at the Issuer’s request and provision of such notice information two Business Days (unless a shorter notice shall be agreed to by the Trustee) prior to the date notice is to be given, by the Trustee in the name and at the expense of the Issuer.
Any redemption may, at the Issuer’s discretion, be subject to one or more conditions precedent, which shall be set forth in the related notice of redemption, including, but not limited to, completion of an Equity Offering, other offering or other transaction or event. In addition, if such redemption or purchase is subject to satisfaction of one or more conditions precedent, such notice shall describe each such condition, and if applicable, shall state that, in the Issuer’s discretion, the Redemption Date may be delayed until such time as any or all such conditions shall be satisfied, or such redemption or purchase may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied by the Redemption Date, or by the Redemption Date as so delayed.
If any such condition precedent has not been satisfied prior to the Redemption Date, the Issuer shall provide prompt notice to the Trustee. Upon receipt of such notice, the notice of redemption shall either be rescinded and the redemption of the Notes shall not occur or the Redemption Date shall be delayed. Upon receipt, the Trustee shall provide such notice to each Holder of the Notes in the same manner in which the notice of redemption was given.
The Issuer and its Affiliates may acquire the Notes by means other than a redemption pursuant to this Article 11, whether by tender offer, open market purchases, negotiated transactions or otherwise.
SECTION 1106. Deposit of Redemption Price. Prior to any Redemption Date, the Issuer shall deposit with the Trustee or with a Paying Agent (or, if the Issuer is acting as its own Paying Agent, segregate and hold in trust as provided in Section 1003) an amount of money sufficient to pay the Redemption Price of, and accrued interest on, all the Notes which are to be redeemed on that date.
SECTION 1107. Notes Payable on Redemption Date. Notice of redemption having been given as aforesaid, the Notes to be redeemed shall, on the Redemption Date, become due and payable, unless such redemption is conditioned on the happening of a future event, at the Redemption Price therein specified (together with accrued interest to the Redemption Date), and from and after such date (unless the Issuer shall default in the payment of the Redemption Price
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and accrued interest) such Notes shall cease to bear interest. Upon surrender of any such Note for redemption in accordance with said notice, such Note shall be paid by the Issuer at the Redemption Price, together with accrued interest to the Redemption Date and such Notes shall be cancelled by the Trustee; provided, that installments of interest whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Notes, or one or more Predecessor Notes, registered as such at the close of business on the relevant record dates according to their terms and the provisions of Section 307.
If any Note called for redemption shall not be so paid upon surrender thereof for redemption, the principal (and premium, if any) shall, until paid, bear interest from the Redemption Date at the rate borne by the Notes, unless such redemption is conditioned on the happening of a future event.
SECTION 1108. Notes Redeemed in Part. Any Note which is to be redeemed only in part (pursuant to the provisions of this Article) shall be surrendered at an office or agency of the Issuer maintained for such purpose pursuant to Section 1002 (with, if the Issuer or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Issuer and the Trustee duly executed by, the Holder thereof or such Holder’s attorney duly authorized in writing), and the Issuer shall execute, and the Trustee shall authenticate and deliver to the Holder of such Note without service charge, a new Note or Notes, of any authorized denomination as requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Note so surrendered.
SECTION 1109. [Reserved].
SECTION 1110. Mandatory Redemption. The Issuer shall not be required to make any mandatory redemption or sinking fund payments with respect to the Notes.
ARTICLE TWELVE
GUARANTEES
SECTION 1201. Guarantees. The Notes will be guaranteed, on a full, joint and several basis, by the Issuer’s present and future domestic Wholly-Owned Subsidiaries that are obligors under the Senior Credit Facility. Subject to this Article 12, each Guarantor, as primary obligors and not merely as sureties, hereby jointly and severally, unconditionally and irrevocably guarantees, on a senior unsecured basis, the Notes and obligations of the Issuer hereunder and thereunder, and guarantees to each Holder authenticated and delivered by the Trustee, and to the Trustee for itself and on behalf of such Holder, that: (1) the principal of (and premium, if any) and interest on the Notes will be paid in full when due, whether at Stated Maturity, by acceleration or otherwise (including the amount that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Law), together with interest on the overdue principal, if any, and interest on any overdue interest, to the extent lawful, and all other obligations of the Issuer to the Holders or the Trustee hereunder or thereunder will be paid in full or performed, all in accordance with the terms hereof and thereof; and (2) in case of any extension of time of payment or renewal of any Notes or of any such other obligations, the same shall be paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise, subject, however, in the case of clauses (1) and (2) above, to the limitation set forth in Section 1204 hereof.
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Each Guarantor hereby agrees (to the extent permitted by applicable law) that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, any release of any other Guarantor, the recovery of any judgment against the Issuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a Guarantor.
Each Guarantor hereby waives (to the extent permitted by law) the benefits of diligence, presentment, demand for payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuer, any right to require a proceeding first against the Issuer or any other Person, protest, notice and all demands whatsoever and covenants that the Guarantee of such Guarantor shall not be discharged as to any Note except by complete performance of the obligations contained in such Note, this Indenture and such Guarantee. Each Guarantor acknowledges that the Guarantee is a guarantee of payment, performance and compliance when due and not of collection. Each of the Guarantors hereby agrees that, in the event of a default in payment of principal (or premium, if any) or interest on such Note, whether at its Stated Maturity, by acceleration, purchase or otherwise, legal proceedings may be instituted by the Trustee on behalf of, or by, the Holder of such Note, subject to the terms and conditions set forth in this Indenture, directly against each of the Guarantors to enforce such Guarantor’s Guarantee without first proceeding against the Issuer or any other Guarantor. Each Guarantor agrees that if, after the occurrence and during the continuance of an Event of Default, the Trustee or any of the Holders are prevented by applicable law from exercising their respective rights to accelerate the Maturity of the Notes, to collect interest on the Notes, or to enforce or exercise any other right or remedy with respect to the Notes, such Guarantor shall pay to the Trustee for the account of the Holder, upon demand therefor, the amount that would otherwise have been due and payable had such rights and remedies been permitted to be exercised by the Trustee or any of the Holders.
If any Holder or the Trustee is required by any court or otherwise to return to the Issuer or any Guarantor, or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuer or any Guarantor, any amount paid by any of them to the Trustee or such Holder, the Guarantee of each of the Guarantors, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor further agrees that, as between each Guarantor, on the one hand, and the Holders and the Trustee on the other hand, (1) subject to this Article Twelve, the Maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereof for the purposes of the Guarantee of such Guarantor notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (2) in the event of any acceleration of such obligation as provided in Article Five hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by each Guarantor for the purpose of the Guarantee of such Guarantor.
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Each Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Issuer for liquidation, reorganization, should the Issuer become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Issuer’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes, whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as though such payment or performance had not been made. In the event that any payment or any part thereof, is rescinded, reduced, restored or returned, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.
SECTION 1202. Severability. In case any provision of any Guarantee shall be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby to the extent permitted by applicable law.
SECTION 1203. Restricted Subsidiaries. The Issuer shall cause any Restricted Subsidiary required to guarantee payment of the Notes pursuant to the terms and provisions of Section 1011 to execute and deliver to the Trustee any amendment or supplement to this Indenture in accordance with the provisions of Article Nine of this Indenture pursuant to which such Restricted Subsidiary shall guarantee all of the obligations on the Notes, whether for principal, premium, if any, interest (including interest accruing after the filing of, or which would have accrued but for the filing of, a petition by or against the Issuer under any Bankruptcy Law, whether or not such interest is allowed as a claim after such filing in any proceeding under such law) and other amounts due in connection therewith (including any fees, expenses and indemnities), on an unsecured senior basis. Upon the execution of any such amendment or supplement, the obligations of the Guarantors and any such Restricted Subsidiary under their respective Guarantees shall become joint and several and each reference to the “Guarantor” in this Indenture shall, subject to Section 1208, be deemed to refer to all Guarantors, including such Restricted Subsidiary. Such Guarantee shall be released in accordance with Section 803 and Section 1208.
SECTION 1204. Limitation of Guarantors’ Liability. Each Guarantor and by its acceptance hereof each Holder confirms that it is the intention of all such parties that the guarantee by each such Guarantor pursuant to its Guarantee not constitute a fraudulent transfer or conveyance for purposes of the Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law or the provisions of its local law relating to fraudulent transfer or conveyance. To effectuate the foregoing intention, the Holders and each such Guarantor hereby irrevocably agree that the obligations of such Guarantor under its Guarantee shall be limited to the maximum amount that will not, after giving effect to all other contingent and fixed liabilities of such Guarantor and after giving effect to any collections from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under its Guarantee or pursuant to this Section 1204, result in the obligations of such Guarantor under its Guarantee constituting such fraudulent transfer or conveyance.
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SECTION 1205. Contribution. In order to provide for just and equitable contribution among the Guarantors, the Guarantors agree that in the event any payment or distribution is made by any Guarantor (a “Funding Guarantor”) under a Guarantee, such Funding Guarantor shall be entitled to a contribution from all other Guarantors in a pro rata amount based on the Adjusted Net Assets (as defined below) of each Guarantor (including the Funding Guarantor) for all payments, damages and expenses incurred by that Funding Guarantor in discharging the Issuer’s obligations with respect to the Notes or any other Guarantor’s obligations with respect to the Guarantee of such Guarantor. “Adjusted Net Assets” of such Guarantor at any date shall mean the lesser of (1) the amount by which the fair value of the property of such Guarantor exceeds the total amount of liabilities, including contingent liabilities (after giving effect to all other fixed and contingent liabilities incurred or assumed on such date), but excluding liabilities under the Guarantee of such Guarantor at such date and (2) the amount by which the present fair salable value of the assets of such Guarantor at such date exceeds the amount that will be required to pay the probable liability of such Guarantor on its debts (after giving effect to all other fixed and contingent liabilities incurred or assumed on such date), excluding debt in respect of the Guarantee of such Guarantor, as they become absolute and matured.
SECTION 1206. Subrogation. Each Guarantor shall be subrogated to all rights of Holders against the Issuer in respect of any amounts paid by any Guarantor pursuant to the provisions of Section 1201; provided that, if an Event of Default has occurred and is continuing, no Guarantor shall be entitled to enforce or receive any payments arising out of, or based upon, such right of subrogation until all amounts then due and payable by the Issuer under this Indenture or the Notes shall have been paid in full.
SECTION 1207. Reinstatement. Each Guarantor hereby agrees (and each Person who becomes a Guarantor shall agree) that the Guarantee provided for in Section 1201 shall continue to be effective or be reinstated, as the case may be, if at any time, payment, or any part thereof, of any obligations or interest thereon is rescinded or must otherwise be restored by a Holder to the Issuer upon the bankruptcy or insolvency of the Issuer or any Guarantor.
SECTION 1208. Release of a Guarantor. Any Guarantee by a Guarantor of the Notes shall be automatically and unconditionally released and discharged upon:
(1)
(A) any sale, exchange or transfer (by merger or otherwise) of (i) the Capital Stock of such Guarantor (including any sale, exchange or transfer) after which the applicable Guarantor is no longer a Restricted Subsidiary or (ii) all the assets of such Guarantor, which sale, exchange or transfer is not prohibited by the applicable provisions of this Indenture;
(B) the release or discharge of the guarantee by, or direct obligation of, such Guarantor with respect to the Senior Credit Facility or the guarantee or direct obligation which resulted in the creation of such Guarantee, except a discharge or release by or as a result of payment under such guarantee or direct obligation;
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(C) the designation of any Restricted Subsidiary that is a Guarantor as an Unrestricted Subsidiary in compliance with the applicable provisions of this Indenture;
(D) the exercise of the Legal Defeasance of the Notes under Section 1302 hereof, and the Covenant Defeasance of the Notes under Section 1303 hereof, or if the Issuer’s obligations under this Indenture are discharged in accordance with Section 401 of this Indenture;
(E) the merger or consolidation of any Guarantor with and into the Issuer or another Guarantor that is the surviving Person in such merger or consolidation, or upon the liquidation of such Guarantor following the transfer of all of its assets to the Issuer or another Guarantor; or
(F) as described under Section 901 or 902; and
(2) such Guarantor delivering to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to such transaction have been complied with.
SECTION 1209. Benefits Acknowledged. Each Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this Indenture and from its guarantee and waivers pursuant to its Guarantees under this Article Twelve.
ARTICLE THIRTEEN
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. Issuer’s Option to Effect Legal Defeasance or Covenant Defeasance. The Issuer may, at its option, at any time, with respect to the Notes, elect to have either Section 1302 or Section 1303 be applied to all Outstanding Notes upon compliance with the conditions set forth below in this Article Thirteen.
SECTION 1302. Legal Defeasance and Discharge. Upon the Issuer’s exercise under Section 1301 of the option applicable to this Section 1302, each of the Issuer and the Guarantors shall be deemed to have been discharged from its respective obligations with respect to all Outstanding Notes on the date the conditions set forth in Section 1304 are satisfied (hereinafter, “Legal Defeasance”). For this purpose, such Legal Defeasance means that each of the Issuer and the Guarantors shall be deemed to have paid and discharged the entire indebtedness represented by the Outstanding Notes, which shall thereafter be deemed to be “Outstanding” only for the purposes of Section 1305 and the other Sections of this Indenture referred to in (1) and (2) below, and to have satisfied all its other obligations under such Notes and this Indenture insofar as such Notes are concerned (and the Trustee, at the expense of the Issuer, shall execute proper instruments acknowledging the same), except for the following which shall survive until otherwise terminated or discharged hereunder: (1) the rights of Holders of Outstanding Notes to receive payments in respect of the principal of (and premium, if any, on) and interest on such Notes when such payments are due, solely out of the trust described in Section 1304, (2) the
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Issuer’s obligations with respect to such Notes under Sections 304, 305, 306, 1002 and 1003, (3) the rights, powers, trusts, duties and immunities of the Trustee hereunder, and the obligations of each of the Guarantors and the Issuer in connection therewith and (4) this Article Thirteen. Subject to compliance with this Article Thirteen, the Issuer may exercise its option under this Section 1302 notwithstanding the prior exercise of its option under Section 1303 with respect to the Notes.
SECTION 1303. Covenant Defeasance. Upon the Issuer’s exercise under Section 1301 of the option applicable to this Section 1303, each of the Issuer and the Guarantors shall be released from its respective obligations under any covenant contained in Sections 801 and 802 and in Sections 1005 through and including 1015 with respect to the Outstanding Notes on and after the date the conditions set forth below are satisfied (hereinafter, “Covenant Defeasance”), and the Notes shall thereafter be deemed not to be “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance means that, with respect to the Outstanding Notes, the Issuer or any Guarantor, as applicable, may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default under Sections 501(3), 501(4), 501(5), and 501(7) and, with respect to only any Significant Subsidiary and not the Issuer, Section 501(6), but, except as specified above, the remainder of this Indenture and such Notes shall be unaffected thereby.
SECTION 1304. Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to application of either Section 1302 or Section 1303 to the Outstanding Notes:
(1) the Issuer shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 608 who shall agree to comply with the provisions of this Article Thirteen applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to the benefit of the Holders of such Notes; (A) cash in U.S. dollars, or (B) Government Securities, or (C) a combination thereof, in such amounts as will be sufficient, in the written opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, the principal of (and premium, if any) and interest on the Outstanding Notes at the Stated Maturity (or Redemption Date, if applicable and so indicated to the Trustee in writing); provided that the Trustee shall have been irrevocably instructed to apply such cash or the proceeds of such Government Securities or combination thereof to said payments with respect to the Notes. Before such a deposit, the Issuer may give to the Trustee, in accordance with Section 1103 hereof, a notice of its election to redeem all of the Outstanding Notes at a future date in accordance with Article Eleven hereof, which notice shall be irrevocable. Such irrevocable redemption notice, if given, shall be given effect in applying the foregoing;
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(2) in the case of Legal Defeasance, the Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that, subject to customary assumptions and exclusions,
(A) the Issuer has received from, or there has been published by, the United States Internal Revenue Service a ruling, or
(B) since the issuance of the Notes, there has been a change in the applicable U.S. Federal income tax law,
in either case to the effect that, and based thereon such Opinion of Counsel in the United States shall confirm that, subject to customary assumptions and exclusions, the Holders or beneficial owners of the Outstanding Notes will not recognize income, gain or loss for U.S. Federal income tax purposes as a result of such Legal Defeasance and will be subject to U.S. Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasance, the Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that, subject to customary assumptions and exclusions, the Holders or beneficial owners of the Outstanding Notes will not recognize income, gain or loss for U.S. Federal income tax purposes as a result of such Covenant Defeasance and will be subject to U.S. Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) no Default or Event of Default (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness, and, in each case the granting of Liens in connection therewith) with respect to the Notes issued hereunder shall have occurred and be continuing on the date of such deposit;
(5) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under the Senior Credit Facility or any other material agreement or instrument (other than this Indenture) to which, the Issuer or any Guarantor is a party or by which the Issuer or any Guarantor is bound (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness and, in each case, the granting of Liens in connection therewith);
(6) the Issuer shall have delivered to the Trustee an Opinion of Counsel to the effect that, as of the date of such opinion and subject to customary assumptions and exclusions following the deposit, the trust funds will not be subject to the effect of Section 547 of Title 11 of the United States Code;
(7) the Issuer shall have delivered to the Trustee an Officer’s Certificate stating that the deposit was not made by the Issuer with the intent of defeating, hindering, delaying or defrauding any creditors of the Issuer or any Guarantor or others; and
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(8) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance, as the case may be, have been complied with.
SECTION 1305. Deposited Money and Government Securities To Be Held in Trust Other Miscellaneous Provisions. Subject to the provisions of the last paragraph of Section 1003, all cash and Government Securities (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 1305, the “Qualifying Trustee”) pursuant to Section 1304 in respect of the Outstanding Notes shall be held in trust and applied by the Qualifying Trustee, in accordance with the provisions of such Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Issuer acting as its own Paying Agent) as the Qualifying Trustee may determine, to the Holders of such Notes of all sums due and to become due thereon in respect of principal (and premium, if any) and interest, but such money or Government Securities need not be segregated from other funds except to the extent required by law.
The Issuer shall pay and indemnify the Qualifying Trustee against any tax, fee or other charge imposed on or assessed against the Government Securities deposited pursuant to Section 1304 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the Outstanding Notes.
Anything in this Article Thirteen to the contrary notwithstanding, the Qualifying Trustee shall deliver or pay to the Issuer from time to time upon Issuer Request any money or Government Securities held by it as provided in Section 1304 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Qualifying Trustee, are in excess of the amount thereof which would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance, as applicable, in accordance with this Article.
SECTION 1306. Reinstatement. If the Trustee or any Paying Agent is unable to apply any money or Government Securities in accordance with Section 1305 by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Issuer’s and each Guarantor’s obligations under this Indenture and the Outstanding Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 1302 or 1303, as the case may be, until such time as the Trustee or Paying Agent is permitted to apply all such money or Government Securities in accordance with Section 1305; provided that, if the Issuer makes any payment of principal of (or premium, if any) or interest on any Note following the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money or Government Securities held by the Trustee or Paying Agent.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the day and year first above written.
| ADVANCED DRAINAGE SYSTEMS, INC. | ||
| By: | /s/ Dean G. Bruno | |
| Name: Dean G. Bruno | ||
| Title: Vice President and Treasurer | ||
| STORMTECH LLC. | ||
| By: | /s/ Dean G. Bruno | |
| Name: Dean G. Bruno | ||
| Title: Treasurer | ||
| INFILTRATOR WATER TECHNOLOGIES, LLC. | ||
| By: | /s/ Dean G. Bruno | |
| Name: Dean G. Bruno | ||
| Title: Treasurer | ||
| ORENCO SYSTEMS, INC. | ||
| By: | /s/ Dean G. Bruno | |
| Name: Dean G. Bruno | ||
| Title: Treasurer | ||
The undersigned agrees to act as Trustee, Paying Agent, Note Registrar and Transfer Agent:
| U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee | ||
| By: | /s/ Shannon Matthews | |
| Name: |
Shannon Matthews | |
| Title: |
Assistant Vice President |
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Annex 1 - Rule 144A / Regulation S Appendix
PROVISIONS RELATING TO INITIAL NOTES AND ADDITIONAL NOTES
1. Definitions
1.1 Definitions.
For the purposes of this Appendix the following terms shall have the meanings indicated below:
“Applicable Procedures” means, with respect to any transfer or transaction involving a Temporary Regulation S Global Note or beneficial interest therein, the rules and procedures of the Depository for such a Temporary Regulation S Global Note, to the extent applicable to such transaction and as in effect from time to time.
“Depository” means The Depository Trust Company, its nominees and their respective successors.
“Definitive Note” means a certificated Note bearing, if required, the appropriate restricted notes legend set forth in Section 2.3(e).
“Distribution Compliance Period,” with respect to any Notes, means the period of 40 consecutive days beginning on and including the latest of (i) the Issue Date, (ii) with respect to Additional Notes, the original issue date of any Additional Notes and (iii) the date on which any such Notes (or any predecessor of such Notes) were first offered to persons other than distributors (as defined in Rule 902 of Regulation S) in reliance on Regulation S.
“IAI” means an institutional “accredited investor,” as defined in Rule 501(a)(1), (2), (3) and (7) of Regulation D under the Securities Act.
“Initial Purchasers” means (1) with respect to the Notes issued on the Issue Date, J.P. Morgan Securities LLC, BofA Securities, Inc., BMO Capital Markets Corp., HSBC Securities (USA) Inc., Morgan Stanley & Co. LLC, PNC Capital Markets LLC, Citizens JMP Securities, LLC, Goldman Sachs & Co. LLC, Barclays Capital Inc., Deutsche Bank Securities Inc., KeyBanc Capital Markets Inc., RBC Capital Markets, LLC and Stephens Inc. and (2) with respect to each issuance of Additional Notes, the Persons purchasing such Additional Notes under the related Purchase Agreement.
“Notes” means (1) $500,000,000 aggregate principal amount of the Issuer’s 5.375% Senior Notes due 2034 issued on the Issue Date and (2) Additional Notes, if any.
“Notes Custodian” means the custodian with respect to a Global Note (as appointed by the Depository), or any successor Person thereto and shall initially be the Trustee.
“Purchase Agreement” means (1) with respect to the Notes issued on the Issue Date, the Purchase Agreement dated February 12, 2026, among the Issuer, the Guarantors party thereto and the Representative on behalf of the Initial Purchasers, and (2) with respect to each issuance of Additional Notes, the purchase agreement or underwriting agreement among the Issuer, the Guarantors and the Persons purchasing such Additional Notes.
“QIB” means a “qualified institutional buyer” as defined in Rule 144A.
“Representative” means J.P. Morgan Securities LLC, as representative of the Initial Purchasers pursuant to the Purchase Agreement.
“Rule 144A Notes” means all Notes offered and sold to QIBs in reliance on Rule 144A.
“Securities Act” means the Securities Act of 1933, as amended.
“Transfer Restricted Notes” means Notes that bear or are required to bear the legend relating to restrictions on transfer relating to the Securities Act set forth in Section 2.3(e) hereto.
1.2 Other Definitions.
| Term |
Defined in Section: | |
| “Agent Members” |
2.1(b) | |
| “Global Notes” |
2.1(a) | |
| “Regulation S” |
2.1(a) | |
| “Regulation S Global Note” |
2.1(a) | |
| “Rule 144A” |
2.1(a) | |
| “Rule 144A Global Note” |
2.1(a) | |
2. The Notes.
2.1 (a) Form and Dating. The Notes will be offered and sold by the Issuer pursuant to a Purchase Agreement. The Notes will be resold initially only to (i) QIBs in reliance on Rule 144A under the Securities Act (“Rule 144A”) and (ii) Persons other than U.S. Persons (as defined in Regulation S) in reliance on Regulation S under the Securities Act (“Regulation S”). Notes may thereafter be transferred to, among others, QIBs, IAIs and purchasers in reliance on Regulation S, subject to the restrictions on transfer set forth herein. Notes initially resold pursuant to Rule 144A shall be issued initially in the form of one or more permanent global notes in fully registered form (collectively, the “Rule 144A Global Note”); and Notes initially resold pursuant to Regulation S shall be issued initially in the form of one or more global notes in fully registered form (collectively, the “Regulation S Global Note”), in each case without interest coupons and with the global notes legend and the applicable restricted notes legend set forth in Exhibit 1 hereto, which shall be deposited on behalf of the purchasers of the Notes represented thereby with the Notes Custodian and registered in the name of the Depository, duly executed by the Issuer and authenticated by the Trustee as provided in this Indenture. Except as set forth in this Section 2.1(a), beneficial ownership interests in the Regulation S Global Note will not be exchangeable for interests in a Rule 144A Global Note, or any other Note prior to the expiration of the Distribution Compliance Period and then, after the expiration of the Distribution
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Compliance Period, may be exchanged for interests in a Rule 144A Global Note, or a Definitive Note only (i) upon certification in form reasonably satisfactory to the Trustee that beneficial ownership interests in such Regulation S Global Note are owned either by Non-U.S. Persons or U.S. Persons who purchased such interests in a transaction that did not require registration under the Securities Act and (ii) in the case of an exchange for a Definitive Note, in compliance with the requirements of Section 2.4(a) hereof.
Beneficial interests in Regulation S Global Notes may be exchanged for interests in Rule 144A Global Notes if (1) such exchange occurs in connection with a transfer of Notes in compliance with Rule 144A and (2) the transferor of the beneficial interest in the Regulation S Global Note, first delivers to the Trustee a written certificate (in a form satisfactory to the Trustee) to the effect that the beneficial interest in the Regulation S Global Note is being transferred to a Person (a) whom the transferor reasonably believes to be a QIB, (b) purchasing for its own account or the account of a QIB in a transaction meeting the requirements of Rule 144A, and (c) in accordance with all applicable securities laws of the States of the United States and other jurisdictions.
Beneficial interests in a Rule 144A Global Note may be transferred to a Person who takes delivery in the form of an interest in a Regulation S Global Note, whether before or after the expiration of the Distribution Compliance Period, only if the transferor first delivers to the Trustee a written certificate (in the form provided in this Indenture) to the effect that such transfer is being made in accordance with Rule 903 or 904 of Regulation S or Rule 144 (if applicable).
The Rule 144A Global Note and the Regulation S Global Note are collectively referred to herein as “Global Notes.” The aggregate principal amount of the Global Notes may from time to time be increased or decreased by adjustments made on the records of the Trustee and the Depository or its nominee as hereinafter provided.
(b) Book-Entry Provisions. This Section 2.1(b) shall apply only to a Global Note deposited with or on behalf of the Depository.
The Issuer shall execute and the Trustee shall, in accordance with this Section 2.1(b), authenticate and deliver initially one or more Global Notes that (a) shall be registered in the name of the Depository and (b) shall be delivered by the Trustee to such Depository or pursuant to such Depository’s instructions or held by the Trustee as custodian for the Depository.
Members of, or participants in the Depository (“Agent Members”) shall have no rights under this Indenture with respect to any Global Note held on their behalf by the Depository or by the Trustee as the custodian of the Depository or under such Global Note, and the Issuer, the Trustee and any agent of the Issuer or the Trustee shall be entitled to treat the Depository as the absolute owner of such Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Issuer, the Trustee or any agent of the Issuer or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depository or impair as between the Depository and its Agent Members, the operation of customary practices of such Depository governing the exercise of the rights of a holder of a beneficial interest in any Global Note.
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(c) Definitive Notes. Except as provided in this Section 2.1, 2.3 or 2.4, owners of beneficial interests in Global Notes shall not be entitled to receive physical delivery of Definitive Notes.
2.2 Authentication. The Trustee shall authenticate and deliver: (1) on the Issue Date, an aggregate principal amount of $500,000,000 of the Issuer’s 5.375% Senior Notes due 2034 and (2) any Additional Notes for an original issue in an aggregate principal amount specified in the written order of the Issuer pursuant to Section 202 of this Indenture, in each case upon a written order of the Issuer signed by two Officers or by an Officer and either an Assistant Treasurer or an Assistant Secretary of the Issuer. Such order shall specify the amount of the Notes to be authenticated and the date on which the original issue of Notes is to be authenticated and, in the case of any issuance of Additional Notes pursuant to Section 313 of this Indenture, shall certify that such issuance is in compliance with Section 1007 of this Indenture.
2.3 Transfer and Exchange.
(a) Transfer and Exchange of Definitive Notes. When Definitive Notes are presented to the Note Registrar with a request:
(x) to register the transfer of such Definitive Notes; or
(y) to exchange such Definitive Notes for an equal principal amount of Definitive Notes of other authorized denominations,
the Note Registrar shall register the transfer or make the exchange as requested if its reasonable requirements for such transaction are met; provided, however, that the Definitive Notes surrendered for transfer or exchange:
(i) shall be duly endorsed or accompanied by a written instrument of transfer in form reasonably satisfactory to the Issuer and the Note Registrar, duly executed by the Holder thereof or its attorney duly authorized in writing; and
(ii) if such Definitive Notes are required to bear a restricted notes legend, they are being transferred or exchanged pursuant to an effective registration statement under the Securities Act, pursuant to Section 2.3(b) or pursuant to clause (A), (B) or (C) below, and are accompanied by the following additional information and documents, as applicable:
(A) if such Definitive Notes are being delivered to the Note Registrar by a Holder for registration in the name of such Holder, without transfer, a certification from such Holder to that effect; or
(B) if such Definitive Notes are being transferred to the Issuer, a certification to that effect; or
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(C) if such Definitive Notes are being transferred (x) pursuant to an exemption from registration in accordance with Rule 144A, Regulation S or Rule 144 under the Securities Act; or (y) in reliance upon another exemption from the requirements of the Securities Act: (i) a certification to that effect (in the form set forth on the reverse of the Note) and (ii) if the Issuer so requests, an opinion of counsel or other evidence reasonably satisfactory to it as to the compliance with the restrictions set forth in the legend set forth in Section 2.3(d)(i).
(b) Restrictions on Transfer of a Definitive Note for a Beneficial Interest in a Global Note. A Definitive Note may not be exchanged for a beneficial interest in a Rule 144A Global Note or a Regulation S Global Note except upon satisfaction of the requirements set forth below. Upon receipt by the Trustee of a Definitive Note, duly endorsed or accompanied by appropriate instruments of transfer, in form satisfactory to the Trustee, together with:
(i) certification, in the form set forth on the reverse of the Note, that such Definitive Note is either (A) being transferred to a QIB in accordance with Rule 144A or (B) being transferred to an IAI or (C) being transferred after expiration of the Distribution Compliance Period by a Person who initially purchased such Note in reliance on Regulation S to a buyer who elects to hold its interest in such Note in the form of a beneficial interest in the Regulation S Global Note; and
(ii) written instructions directing the Trustee to make, or to direct the Notes Custodian to make, an adjustment on its books and records with respect to such Rule 144A Global Note (in the case of a transfer pursuant to clause (b)(i)(A)) or Regulation S Global Note (in the case of a transfer pursuant to clause (b)(i)(C)) to reflect an increase in the aggregate principal amount of the Notes represented by the Rule 144A Global Note or Regulation S Global Note, as applicable, such instructions to contain information regarding the Agent Member account to be credited with such increase,
then the Trustee shall cancel such Definitive Note and cause, or direct the Notes Custodian to cause, in accordance with the standing instructions and procedures of the Depository and the Notes Custodian, the aggregate principal amount of Notes represented by the Rule 144A Global Note or Regulation S Global Note, as applicable, to be increased by the aggregate principal amount of the Definitive Note to be exchanged and shall credit or cause to be credited to the account of the Person specified in such instructions a beneficial interest in the Rule 144A Global Note or Regulation S Global Note, as applicable, equal to the principal amount of the Definitive Note so cancelled. If no Rule 144A Global Notes or Regulation S Global Notes, as applicable, are then outstanding, the Issuer shall issue and the Trustee shall authenticate, upon written order of the Issuer in the form of an Officer’s Certificate of the Issuer, a new Rule 144A Global Note or Regulation S Global Note, as applicable, in the appropriate principal amount.
(c) Transfer and Exchange of Global Notes.
(i) The transfer and exchange of Global Notes or beneficial interests therein shall be effected through the Depository, in accordance with this Indenture (including applicable restrictions on transfer set forth herein, if any) and the procedures of the Depository therefor. A transferor of a beneficial interest in a Global Note shall deliver to the Note Registrar a written order given in
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accordance with the Depository’s procedures containing information regarding the participant account of the Depository to be credited with a beneficial interest in the Global Note. The Note Registrar shall, in accordance with such instructions instruct the Depository to credit to the account of the Person specified in such instructions a beneficial interest in the Global Note and to debit the account of the Person making the transfer the beneficial interest in the Global Note being transferred.
(ii) If the proposed transfer is a transfer of a beneficial interest in one Global Note to a beneficial interest in another Global Note, the Note Registrar shall reflect on its books and records the date and an increase in the principal amount of the Global Note to which such interest is being transferred in an amount equal to the principal amount of the interest to be so transferred, and the Note Registrar shall reflect on its books and records the date and a corresponding decrease in the principal amount of the Global Note from which such interest is being transferred.
(iii) Notwithstanding any other provisions of this Appendix (other than the provisions set forth in Section 2.4), a Global Note may not be transferred as a whole except by the Depository to a nominee of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to a successor Depository or a nominee of such successor Depository.
(iv) In the event that a Global Note is exchanged for a Definitive Note pursuant to Section 2.4 of this Appendix, such Notes may be exchanged only in accordance with such procedures as are substantially consistent with the provisions of this Section 2.3 (including the certification requirements set forth on the reverse of the Notes intended to ensure that such transfers comply with Rule 144A, Regulation S or another applicable exemption under the Securities Act, as the case may be) and such other procedures as may from time to time be adopted by the Issuer.
(v) During the Distribution Compliance Period, beneficial ownership interests in Regulation S Global Notes may only be sold, pledged or transferred in accordance with the Applicable Procedures and only (i) to the Issuer, (ii) in an offshore transaction in accordance with Regulation S or (iii) pursuant to an effective registration statement under the Securities Act, in each case in accordance with any applicable securities laws of any State of the United States.
(d) Legend.
(i) Except as permitted by the following paragraphs (ii), (iii) and (iv), each Note certificate evidencing the Global Notes (and all Notes issued in exchange therefor or in substitution thereof), in the case of Notes offered otherwise than in reliance on Regulation S shall bear a legend in substantially the following form:
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THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR ANY SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR OTHER JURISDICTION, AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY PERSON EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), OR (B) IT IS NOT A U.S. PERSON, IS NOT ACQUIRING THIS SECURITY FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT UNTIL THE DATE THAT IS [IN THE CASE OF RULE 144A NOTES: ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE OF THE ISSUANCE OF ANY ADDITIONAL NOTES AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY),] [IN THE CASE OF REGULATION S NOTES: 40 DAYS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE OF THE ISSUANCE OF ANY ADDITIONAL NOTES AND THE DATE ON WHICH THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) WAS FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN RULE 902 OF REGULATION S) IN RELIANCE ON REGULATION S] OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE ISSUER OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT) (AN “ACCREDITED INVESTOR”) THAT, PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS FURNISHED ON ITS BEHALF BY A U.S. BROKER DEALER) TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THE NOTES (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM SUCH TRUSTEE), (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT (IF AVAILABLE), (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) (PROVIDED THAT PRIOR TO SUCH TRANSFER, THE ISSUER MAY REQUIRE AN OPINION OF COUNSEL THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT), (F) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
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SECURITIES ACT, (PROVIDED THAT PRIOR TO SUCH TRANSFER THE ISSUER MAY REQUIRE AN OPINION OF COUNSEL THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT) OR (G) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND, IN EACH CASE DESCRIBED IN CLAUSES (A) THROUGH (G), IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAW OF THE UNITED STATES OR ANY OTHER JURISDICTION AND (3) AGREES FOR THE BENEFIT OF THE ISSUER THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. AS USED HEREIN, THE TERMS “OFFSHORE TRANSACTION,” “UNITED STATES” AND “U.S. PERSON” HAVE THE MEANING GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
Each certificate evidencing a Note offered in reliance on Regulation S shall, in addition to the foregoing, bear a legend in substantially the following form:
THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION ORIGINALLY EXEMPT FROM REGISTRATION UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE TRANSFERRED IN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY U.S. PERSON EXCEPT PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND ALL APPLICABLE STATE SECURITIES LAWS. TERMS USED ABOVE HAVE THE MEANING GIVEN TO THEM IN REGULATION S UNDER THE SECURITIES ACT.
Each Definitive Note shall also bear the following additional legend:
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.
(ii) Upon any sale or transfer of a Transfer Restricted Note (including any Transfer Restricted Note represented by a Global Note) pursuant to Rule 144 under the Securities Act, the Note Registrar shall permit the transferee thereof to exchange such Transfer Restricted Note for a certificated Note that does not bear the legend set forth above and rescind any restriction on the transfer of such Transfer Restricted Note, if the transferor thereof certifies in writing to the Note Registrar that such sale or transfer was made in reliance on Rule 144 (such certification to be in the form set forth on the reverse of the Note).
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(e) Cancellation or Adjustment of Global Note. At such time as all beneficial interests in a Global Note have either been exchanged for Definitive Notes, redeemed, purchased or cancelled, such Global Note shall be returned to the Depository for cancellation or retained and cancelled by the Trustee. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for certificated Notes, redeemed, purchased or cancelled, the principal amount of Notes represented by such Global Note shall be reduced and an adjustment shall be made on the books and records of the Trustee (if it is then the Notes Custodian for such Global Note) with respect to such Global Note, by the Trustee or the Notes Custodian, to reflect such reduction.
(f) No Obligation of the Trustee.
(i) The Trustee shall have no responsibility or obligation to any beneficial owner of a Global Note, a member of, or a participant in the Depository or other Person with respect to the accuracy of the records of the Depository or its nominee or of any participant or member thereof, with respect to any ownership interest in the Notes or with respect to the delivery to any participant, member, beneficial owner or other Person (other than the Depository) of any notice (including any notice of redemption) or the payment of any amount, under or with respect to such Notes. All notices and communications to be given to the Holders and all payments to be made to Holders under the Notes shall be given or made only to or upon the order of the registered Holders (which shall be the Depository or its nominee in the case of a Global Note). The rights of beneficial owners in any Global Note shall be exercised only through the Depository subject to the applicable rules and procedures of the Depository. The Trustee may rely and shall be fully protected in relying upon information furnished by the Depository with respect to its members, participants and any beneficial owners.
(ii) The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among the Depository participants, members or beneficial owners in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by, the terms of this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
2.4 Definitive Notes.
(a) A Global Note deposited with the Depository or with the Trustee as Notes Custodian for the Depository pursuant to Section 2.1 shall be transferred to the beneficial owners thereof in the form of Definitive Notes in an aggregate principal amount equal to the principal amount of such Global Note, in exchange for such Global Note, only if such transfer complies with Section 2.3 hereof and (i) the Depository notifies the Issuer that it is unwilling or unable to continue as Depository for such Global Note or if at any time such Depository ceases to be a “clearing agency” registered under the Exchange Act and, in each case, a successor depository is not appointed by the Issuer within 90 days of such notice, or (ii) a Default has occurred and is continuing or (iii) the Issuer, in its sole discretion, notifies the Trustee in writing that it elects to cause the issuance of Definitive Notes under this Indenture.
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(b) Any Global Note that is transferable to the beneficial owners thereof pursuant to this Section 2.4 shall be surrendered by the Depository to the Trustee located at its principal Corporate Trust Office in the Borough of Manhattan, The City of New York, to be so transferred, in whole or from time to time in part, without charge, and the Trustee shall authenticate and deliver, upon such transfer of each portion of such Global Note, an equal aggregate principal amount of Definitive Notes of authorized denominations. Any portion of a Global Note transferred pursuant to this Section 2.4 shall be executed, authenticated and delivered only in denominations of $2,000 principal amount and any integral multiple of $1,000 in excess thereof and registered in such names as the Depository shall direct. Any Definitive Note delivered in exchange for an interest in the Transfer Restricted Note shall, except as otherwise provided by Section 2.3(e) hereof, bear the applicable restricted notes legend and definitive notes legend set forth in Exhibit 1 hereto.
(c) Subject to the provisions of Section 2.4(b) hereof, the registered Holder of a Global Note shall be entitled to grant proxies and otherwise authorize any Person, including Agent Members and Persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under this Indenture or the Notes.
(d) In the event of the occurrence of one of the events specified in Section 2.4(a) hereof, the Issuer shall promptly make available to the Trustee a reasonable supply of Definitive Notes in definitive, fully registered form without interest coupons. In the event that such Definitive Notes are not issued, the Issuer expressly acknowledges, with respect to the right of any Holder to pursue a remedy pursuant to this Indenture, including pursuant to Section 507, the right of any beneficial owner of Notes to pursue such remedy with respect to the portion of the Global Note that represents such beneficial owner’s Notes as if such Definitive Notes had been issued.
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EXHIBIT 1
to Annex 1
[FORM OF FACE OF INITIAL NOTE]
[Global Notes Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”) TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO THE DEPOSITORY, TO NOMINEES OF THE DEPOSITORY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[FOR REGULATION S GLOBAL NOTE ONLY] UNTIL 40 DAYS AFTER THE LATER OF COMMENCEMENT OR COMPLETION OF THE OFFERING, AN OFFER OR SALE OF SECURITIES WITHIN THE UNITED STATES BY A DEALER (AS DEFINED IN THE SECURITIES ACT) MAY VIOLATE THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT IF SUCH OFFER OR SALE IS MADE OTHERWISE THAN IN ACCORDANCE WITH RULE 144A THEREUNDER.
[Restricted Notes Legend]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR ANY SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR OTHER JURISDICTION, AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY PERSON EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS FOR THE BENEFIT OF THE ISSUER THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), OR (B) IT IS NOT A U.S. PERSON, IS NOT ACQUIRING THIS SECURITY FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, (2) AGREES, FOR THE BENEFIT OF THE ISSUER, THAT IT WILL NOT UNTIL THE DATE THAT IS [IN THE CASE OF RULE 144A NOTES: ONE
YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE OF THE ISSUANCE OF ANY ADDITIONAL NOTES AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY),] [IN THE CASE OF REGULATION S NOTES: 40 DAYS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE OF THE ISSUANCE OF ANY ADDITIONAL NOTES AND THE DATE ON WHICH THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) WAS FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN RULE 902 OF REGULATION S) IN RELIANCE ON REGULATION S] OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE ISSUER OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT) (AN “ACCREDITED INVESTOR”) THAT, PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS FURNISHED ON ITS BEHALF BY A U.S. BROKER DEALER) TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THE NOTES (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM SUCH TRUSTEE), (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT (IF AVAILABLE), (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) (PROVIDED THAT PRIOR TO SUCH TRANSFER, THE ISSUER MAY REQUIRE AN OPINION OF COUNSEL THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT), (F) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (PROVIDED THAT PRIOR TO SUCH TRANSFER, THE ISSUER MAY REQUIRE AN OPINION OF COUNSEL THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT), OR (G) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND, IN EACH CASE DESCRIBED IN CLAUSES (A) THROUGH (G), IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF THIS UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION, AND (3) AGREES, FOR THE BENEFIT OF THE ISSUER, THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. AS USED HEREIN, THE TERMS “OFFSHORE TRANSACTION,” “UNITED STATES” AND “U.S. PERSON” HAVE THE MEANING GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
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Each certificate evidencing a Note offered in reliance on Regulation S shall, in addition to the foregoing, bear a legend in substantially the following form:
[Restricted Notes Legend for Notes Offered in Reliance on Regulation S]
THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION ORIGINALLY EXEMPT FROM REGISTRATION UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE TRANSFERRED IN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY U.S. PERSON EXCEPT PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND ALL APPLICABLE STATE SECURITIES LAWS. TERMS USED ABOVE HAVE THE MEANING GIVEN TO THEM IN REGULATION S UNDER THE SECURITIES ACT.
[Definitive Notes Legend]
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.
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| No. | $ |
[CUSIP No.] / [ISIN]
Advanced Drainage Systems, Inc., a Delaware corporation, promises to pay to [ • ], or registered assigns, the principal sum of $[ • ] on March 1, 2034.
Interest Payment Dates: March 1 and September 1.
Regular Record Dates: February 15 and August 15.
Additional provisions of this Note are set forth on the other side of this Note.
| ADVANCED DRAINAGE SYSTEMS, INC. | ||
| By: | ||
| Name: | ||
| Title: | ||
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
Dated:
This is one of the Notes designated therein referred to in the within-mentioned Indenture.
| U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee, | ||
| By: | ||
| Authorized Signatory | ||
| 1. | For Global Notes insert: Cede & Co. |
| 2. | For Global Notes insert: set forth on the Schedule of Increases or Decreases of Global Note attached hereto. |
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[FORM OF REVERSE SIDE OF INITIAL NOTE]
5.375% SENIOR NOTE DUE 2034
1. Principal and Interest.
The Issuer will pay the principal of this Note on March 1, 2034.
The Issuer promises to pay interest on the principal amount of this Note on each Interest Payment Date, as set forth below, at the rate of 5.375% per annum (subject to adjustment as provided below).
Interest will be payable semi-annually (to the Holders of record of the Notes (or any Predecessor Notes) at the close of business on March 1 or September 1 immediately preceding the Interest Payment Date) on each Interest Payment Date, commencing September 1, 2026.
Interest on this Note will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from of February 27, 2026; provided that, if there is no existing default in the payment of interest and if this Note is authenticated between a Regular Record Date referred to on the face hereof and the next succeeding Interest Payment Date, interest shall accrue from such Interest Payment Date. Interest will be computed on the basis of a 360-day year of twelve 30-day months.
The Issuer shall pay interest on overdue principal and premium, if any, and interest on overdue installments of interest, to the extent lawful, at a rate per annum equal to the rate of interest applicable to the Notes.
2. Method of Payment.
The Issuer will pay interest (except Defaulted Interest) on the principal amount of the Notes on each March 1 and September 1 to the Persons who are Holders (as reflected in the Note Register at the close of business on February 15 and August 15 immediately preceding the Interest Payment Date), in each case, even if the Note is cancelled on registration of transfer or registration of exchange after such Regular Record Date; provided that, with respect to the payment of principal, the Issuer will make payment to the Holder that surrenders this Note to any Paying Agent on or after March 1, 2034.
The Issuer will pay principal (and premium, if any) and interest in U.S. dollars. However, the Issuer may pay principal (and premium, if any) and interest by its check payable in such money. The Issuer may pay interest on the Notes either (a) by mailing a check for such interest to a Holder’s registered address (as reflected in the Note Register) or (b) by wire transfer to an account located in the United States maintained by the payee. If a payment date is a date other than a Business Day at a place of payment, payment may be made at that place on the next succeeding day that is a Business Day and no interest shall accrue for the intervening period.
3. Paying Agent and Note Registrar.
The Issuer initially appoints U.S. Bank Trust Company, National Association, in Cincinnati, Ohio as Paying Agent and Note Registrar. The Issuer may change any Paying Agent or Note Registrar upon written notice thereto. The Issuer, any Subsidiary or any Affiliate of any of them may act as Paying Agent, Note Registrar or co-registrar.
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4. Indenture.
The Issuer issued the Notes under an Indenture dated as of February 27, 2026 (the “Indenture”), among the Issuer, the Guarantors and the Trustee. Capitalized terms herein are used as defined in the Indenture unless otherwise indicated. The terms of the Notes include those stated in the Indenture. The Notes are subject to all such terms, and Holders are referred to the Indenture for a statement of all such terms. To the extent permitted by applicable law, in the event of any inconsistency between the terms of this Note and the terms of the Indenture, the terms of the Indenture shall control.
The Notes are unsecured senior obligations of the Issuer. The Indenture does not limit the aggregate principal amount of the Notes.
5. Redemption.
Optional Redemption. At any time prior to March 1, 2029, the Issuer may redeem all or a part of the Notes, upon notice as described in Section 1105 of the Indenture, at a Redemption Price equal to 100% of the principal amount of Notes redeemed plus the Applicable Premium as of, and accrued and unpaid interest, if any, to, but excluding, the Redemption Date, subject to the rights of Holders of record of Notes on the relevant Regular Record Date to receive interest due on the relevant Interest Payment Date.
On and after March 1, 2029, the Issuer may redeem the Notes, in whole or in part, upon notice as described in Section 1105 of the Indenture, at the Redemption Prices (expressed as percentages of principal amount of the Notes to be redeemed) set forth below, plus accrued and unpaid interest, if any, to, but excluding, the applicable Redemption Date, subject to the right of Holders of record of Notes on the relevant Regular Record Date to receive interest due on the relevant Interest Payment Date, if redeemed during the twelve-month period beginning on March 1 of each of the years indicated below:
| Year |
Percentage |
|||
| 2029 |
102.688 | % | ||
| 2030 |
101.344 | % | ||
| 2031 and thereafter |
100.000 | % | ||
In addition, at any time prior to March 1, 2029, the Issuer may, at its option, upon notice as described in Section 1105 of the Indenture, on one or more occasions redeem up to 40% of the aggregate principal amount of Notes issued under the Indenture at a Redemption Price equal to 105.375% of the aggregate principal amount thereof, plus accrued and unpaid interest thereon, if any, to, but excluding, the applicable Redemption Date, subject to the right of Holders of record of notes on the relevant Regular Record Date to receive interest due on the relevant Interest Payment Date, with the net cash proceeds of one or more Equity Offerings to the extent such net
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cash proceeds are received by or contributed to the Issuer; provided that at least 50% of the sum of the aggregate principal amount of Notes issued under the Indenture (including any Additional Notes issued under the Indenture after the Issue Date) remains outstanding immediately after the occurrence of each such redemption unless all such notes are redeemed substantially concurrently; provided, further, that each such redemption occurs within 180 days of the date of closing of each such Equity Offering.
Notwithstanding the foregoing, in connection with any tender offer for the notes, including a Change of Control Offer or Asset Sale Offer, if Holders of not less than 90% in aggregate principal amount of the outstanding notes validly tender and do not withdraw such notes in such tender offer and the Issuer, or any third party making such tender offer in lieu of the Issuer, purchases all of the notes validly tendered and not withdrawn by such Holders, the Issuer or such third party will have the right upon not less than 10 days nor more than 60 days’ prior notice, given not more than 30 days following such purchase date, to redeem all notes that remain outstanding following such purchase at a redemption price equal to the price offered to each other Holder (excluding any early tender or incentive fee) in such tender offer plus, to the extent not included in the tender offer payment, accrued and unpaid interest, if any, thereon, to, but excluding, the date of such redemption.
6. Repurchase upon a Change of Control and Asset Sales.
Upon the occurrence of (a) a Change of Control Triggering Event, the Holders of the Notes will have the right to require that the Issuer purchase such Holder’s outstanding Notes, in whole or in part, at a purchase price of 101% of the principal amount thereof, plus accrued and unpaid interest, if any, to, but excluding, the date of purchase and (b) Asset Sales, the Issuer may be obligated to make offers to purchase Notes and Senior Indebtedness of the Issuer with a portion of the Net Proceeds of such Asset Sales at a Redemption Price of 100% of the principal amount thereof plus accrued and unpaid interest, if any, to, but excluding, the date of purchase.
7. Denominations; Transfer; Exchange.
The Notes are in registered form without coupons in denominations of $2,000 principal amount and integral multiples of $1,000 in excess thereof. A Holder may transfer or exchange Notes in accordance with the Indenture. The Note Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Issuer may require a Holder to pay any taxes and fees required by law or permitted by the Indenture. The Issuer is not required to transfer or exchange any Notes selected for redemption or tendered (and not withdrawn) for repurchase in connection with a Change of Control Offer, an Asset Sale Offer or other tender offer. Also, the Issuer is not required to transfer or exchange any Notes for a period of 10 days before a selection of Notes to be redeemed or within 15 days before an Interest Payment Date.
8. Persons Deemed Owners.
A registered Holder shall be treated as the owner of a Note for all purposes.
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9. Unclaimed Money.
If money for the payment of principal (premium, if any) or interest remains unclaimed for two years, the Trustee and the Paying Agent will pay the money back to the Issuer at its written request. After that, Holders entitled to the money must look to the Issuer for payment, unless an abandoned property law designates another Person, and all liability of the Trustee and such Paying Agent with respect to such money shall cease.
10. Discharge and Defeasance Prior to Redemption or Maturity.
If the Issuer irrevocably deposits, or causes to be deposited, with the Trustee money or Government Securities sufficient to pay the then outstanding principal of (premium, if any) and accrued interest on the Notes (a) to the Redemption Date or Maturity, the Issuer will be discharged from its obligations under the Indenture and the Notes, except in certain circumstances for certain covenants thereof, and (b) to the Stated Maturity, the Issuer will be discharged from certain covenants set forth in the Indenture.
11. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture, the Notes and any related Guarantee may be amended or supplemented with the consent of the Holders of at least a majority in aggregate principal amount of the Outstanding Notes, including consents obtained in connection with a purchase of, or tender offer or exchange offer for the Notes, and any existing Default or Event of Default or compliance with any provision of the Indenture or the Notes may be waived with the consent of the Holders of a majority in aggregate principal amount of the Outstanding Notes, including consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes, other than Notes beneficially owned by the Issuer or its Affiliates. Without notice to or the consent of any Holder, the parties thereto may amend or supplement the Indenture or the Notes to, among other things, cure any ambiguity, omission, mistake, defect or inconsistency and make any change that does not adversely affect the rights of any Holder. For purposes of determining whether any Holder shall be disregarded for purposes of such consent, only notes which a Responsible Officer of the Trustee actually knows to be beneficially owned by the Issuer or its Affiliates shall be disregarded.
12. Restrictive Covenants.
The Indenture contains certain covenants, including covenants with respect to the following matters: (i) Restricted Payments; (ii) incurrence of Indebtedness and Issuance of Disqualified Stock; (iii) Liens; (iv) transactions with Affiliates; (v) dividend and other payment restrictions affecting Restricted Subsidiaries; (vi) guarantees of Indebtedness by Restricted Subsidiaries; (vii) merger and certain transfers of assets; (viii) purchase of Notes upon a Change of Control; and (ix) disposition of proceeds of Asset Sales. Within 120 days (or the successor time period then in effect under the rules and regulations of the Exchange Act) after the end of each fiscal year, the Issuer must report to the Trustee on compliance with such limitations.
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13. Successor Persons.
When a successor Person or other entity assumes all the obligations of its predecessor under the Notes and the Indenture, the predecessor Person will be released from those obligations.
14. Remedies for Events of Default.
If an Event of Default, as defined in the Indenture, occurs and is continuing, the Trustee or the Holders of at least 25% in principal amount of the Outstanding Notes may declare all the Notes to be immediately due and payable. If a bankruptcy or insolvency default with respect to the Issuer occurs and is continuing, the Notes automatically become immediately due and payable. Subject to the provisions of the Indenture relating to the duties of the Trustee, in case an Event of Default occurs and is continuing, the Trustee shall be under no obligation to exercise any rights or powers under the Indenture except at the request or direction of any of the Holders of the Notes and then only if such Holders have offered indemnity or security against any loss, liability or expense satisfactory to the Trustee. Subject to certain restrictions, the Holders of a majority in principal amount of the Outstanding Notes are given the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or of exercising any trust or power conferred on the Trustee. The Trustee, however, may refuse to follow any direction that conflicts with law or the Indenture or that the Trustee determines (without any duty or affirmative obligation to make any such determination) is unduly prejudicial to the rights of any other Holder or that would involve the Trustee in personal liability.
15. Guarantees.
The Issuer’s obligations under the Notes are fully, irrevocably and unconditionally guaranteed on a senior unsecured basis, to the extent set forth in the Indenture, by each of the Guarantors.
16. Trustee Dealings with Issuer.
The Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Notes and may make loans to, accept deposits from, perform services for, and otherwise deal with, the Issuer and its Affiliates as if it were not the Trustee.
17. Authentication.
This Note shall not be valid until the Trustee manually signs the certificate of authentication on the other side of this Note.
18. Abbreviations.
Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian) and U/G/M/A (= Uniform Gifts to Minors Act).
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19. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Issuer has caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers in notices as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice and reliance may be placed only on the other identification numbers placed thereon.
20. Governing Law.
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. THE PARTIES HERETO AGREE TO SUBMIT TO THE JURISDICTION OF ANY UNITED STATES FEDERAL OR STATE COURT LOCATED IN THE BOROUGH OF MANHATTAN, IN THE CITY OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS SECURITY OR THE INDENTURE.
The Issuer will furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to Advanced Drainage Systems, Inc., Hilliard, Ohio 43026.
Capitalized terms used herein but not defined herein shall have the meanings given to such terms in the Indenture.
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Print or type assignee’s name, address and zip code)
(Insert assignee’s soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Note on the books of the Issuer. The agent may substitute another to act for him.
Date: Your Signature:
Sign exactly as your name appears on the other side of this Note.
In connection with any transfer of any of the Notes evidenced by this certificate occurring prior to the date that is one year after the later of the date of original issuance of such Notes and the last date, if any, on which such Notes were owned by the Issuer or any “Affiliate” of the Issuer within the meaning of the Securities Act of 1933, as amended (the “Securities Act”), the undersigned confirms that such Notes are being transferred in accordance with its terms:
CHECK ONE BOX BELOW
☐ to the Issuer; or
(1) ☐ pursuant to an effective registration statement under the Securities Act; or
(2) ☐ inside the United States to a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) that purchases for its own account or for the account of a qualified institutional buyer to whom notice is given that such transfer is being made in reliance on Rule 144A, in each case pursuant to and in compliance with Rule 144A under the Securities Act; or
(3) ☐ outside the United States in an offshore transaction within the meaning of Regulation S under the Securities Act in compliance with Rule 904 under the Securities Act; or
(4) ☐ pursuant to the exemption from registration provided by Rule 144 under the Securities Act; or
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(5) ☐ to an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act) that has furnished to the Trustee a signed letter containing certain representations and agreements relating to the transfer of this Note (the form of which can be obtained from the Trustee) and, if such transfer is in respect of an aggregate principal amount of Notes less than $250,000, an opinion of counsel acceptable to the Issuer that such transfer is in compliance with the Securities Act.
Unless one of the boxes is checked, the Trustee will refuse to register any of the Notes evidenced by this certificate in the name of any person other than the registered holder thereof; provided, that if box (4) is checked, the Trustee shall be entitled to require, prior to registering any such transfer of the Notes, such legal opinions, certifications and other information as the Issuer has reasonably requested to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act, such as the exemption provided by Rule 144 under such Act.
| Signature |
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| Signature Guarantee: |
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| Signature must be guaranteed |
Signature | |||
Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Note Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Note Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Issuer as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.
| Dated: | ||
| Notice: To be executed by an executive officer |
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[TO BE ATTACHED TO GLOBAL NOTES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global Note have been made:
| Date of Exchange |
Amount of decrease in Principal amount of this Global Note |
Amount of increase in Principal amount of this Global Note |
Principal |
Signature of |
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Issuer pursuant to Section 1012 or 1013 of the Indenture, check the box: ☐
| • | If you want to elect to have only part of this Note purchased by the Issuer pursuant to Section 1012 or 1013 of the Indenture, state the amount in principal amount: $ |
| Dated: ____________ |
Your signature: ____________ | |
| (Sign exactly as your name appears on the other side of this Note) | ||
| Signature Guarantee: ____________ |
||
| (Signature must be guaranteed) | ||
Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Note Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Note Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
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EXHIBIT 2
to Annex 1
Form of
Transferee Letter of Representation
Advanced Drainage Systems, Inc.
4640 Trueman Boulevard
Hilliard, Ohio 43026
U.S. Bank Trust Company, National Association
EP-MN-WS3C 60 Livingston Avenue
Saint Paul, MN 55107
Attention: Global Corporate Trust Services
Ladies and Gentlemen:
This certificate is delivered to request a transfer of $______ principal amount of the 5.375% Senior Notes Due 2034 (the “Notes”) of Advanced Drainage Systems, Inc., a Delaware corporation (the “Issuer”).
Upon transfer, the Notes would be registered in the name of the new beneficial owner as follows:
Name: ______
Address: ______
Taxpayer ID Number: ______
The undersigned represents and warrants to you that:
1. We are an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended (the “Securities Act”)), purchasing for our own account or for the account of such an institutional “accredited investor” at least $[250,000] principal amount of the Notes, and we are acquiring the Notes not with a view to, or for offer or sale in connection with, any distribution in violation of the Securities Act. We have such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of our investment in the Notes, and we invest in or purchase securities similar to the Notes in the normal course of our business. We, and any accounts for which we are acting, are each able to bear the economic risk of our or its investment.
2. We understand that the Notes have not been registered under the Securities Act and, unless so registered, may not be sold except as permitted in the following sentence. We agree on our own behalf and on behalf of any investor account for which we are purchasing Notes to offer, sell or otherwise transfer such Notes prior to the date that is two years after the later of the date of original issue and the last date on which the Issuer or any affiliate of the
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Issuer was the owner of such Notes (or any predecessor thereto) (the “Resale Restriction Termination Date”) only (i) to the Issuer or any subsidiary thereof, (ii) in the United States to a person whom the seller reasonably believes is a qualified institutional buyer in a transaction meeting the requirements of Rule 144A, (iii) to an institutional “accredited investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act that is an institutional accredited investor purchasing for its own account or for the account of an institutional accredited investor, in each case in a minimum principal amount of the Notes of $250,000, (iv) outside the United States in a transaction complying with the provisions of Regulation S under the Securities Act, (v) pursuant to an exemption from registration under the Securities Act provided by Rule 144 (if available) or (vi) pursuant to an effective registration statement under the Securities Act, in each of cases (i) through (vi) subject to any requirement of law that the disposition of our property or the property of such investor account or accounts be at all times within our or their control and in compliance with any applicable securities law of any state of the United States or other jurisdiction. The foregoing restrictions on resale will not apply subsequent to the Resale Restriction Termination Date. If any resale or other transfer of the Notes is proposed to be made pursuant to clause (iii) above prior to the Resale Restriction Termination Date, the transferor shall deliver a letter from the transferee substantially in the form of this letter to the Issuer and the Trustee, which shall provide, among other things, that the transferee is an institutional “accredited investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act and that it is acquiring such Notes for investment purposes and not for distribution in violation of the Securities Act. Each purchaser acknowledges that the Issuer and the Trustee reserve the right prior to the offer, sale or other transfer prior to the Resale Restriction Termination Date of the Notes pursuant to clause (iii), (iv) or (v) above to require the delivery of an opinion of counsel, certifications or other information satisfactory to the Issuer and the Trustee.
| TRANSFEREE: ______, | ||
| By: ______ | ||
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FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS
SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of, 20, among Advanced Drainage Systems, Inc. (the “Issuer”), ( ), (the “Guaranteeing Subsidiary”), a subsidiary of the Issuer and U.S. Bank Trust Company, National Association, as trustee under the Indenture referred to below (the “Trustee”).
W I T N E S S E T H
WHEREAS, the Issuer has heretofore executed and delivered to the Trustee an indenture (the “Indenture”), dated as of February 27, 2026 providing for the issuance of 5.375% Senior Notes due 2034 (the “Notes”);
WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally guarantee all of the Issuer’s Obligations under the Notes and the Indenture on the terms and conditions set forth herein (the “Guarantee”); and
WHEREAS, pursuant to Section 901 of the Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. The Guaranteeing Subsidiary hereby agrees to provide an unconditional Guarantee on the terms and subject to the conditions set forth in the Indenture including but not limited to Article 12 thereof.
3. NO RECOURSE AGAINST OTHERS. No past, present or future director, officer, employee, incorporator, stockholder or agent of the Guaranteeing Subsidiary, as such, shall have any liability for any obligations of the Issuer or any Guaranteeing Subsidiary under the Notes, any Guarantees, the Indenture or this Supplemental Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of the Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. Such waiver may not be effective to waive liabilities under the federal securities laws and it is the view of the SEC that such a waiver is against public policy.
4. GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. THE PARTIES HERETO AGREE TO SUBMIT TO THE JURISDICTION OF ANY UNITED STATES FEDERAL OR STATE COURT LOCATED IN THE BOROUGH OF MANHATTAN, IN THE CITY OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL INDENTURE.
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5. COUNTERPARTS. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. The exchange of copies of the Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of the Supplemental Indenture as to the parties hereto and may be used in lieu of the original Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
6. EFFECT OF HEADINGS. The Section headings herein are for convenience or reference only and are not intended to be considered a part hereof and shall not affect the construction hereof.
7. THE TRUSTEE. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Guaranteeing Subsidiary and the Issuer.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed, all as of the date first above written.
| Dated: ____________________, 20__ |
| ADVANCED DRAINAGE SYSTEMS, INC. | ||
| By: | ||
| Name: | ||
| Title: | ||
| [GUARANTEEING SUBSIDIARY] | ||
| By: | ||
| Name: | ||
| Title: | ||
| U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee | ||
| By: | ||
| Name: | ||
| Title: | ||
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INCUMBENCY CERTIFICATE
The undersigned, ___________________________, being the ___________ of (the “Issuer”) does hereby certify that the individuals listed below are qualified and acting officers of the Issuer and the signatures appearing in the right column opposite the name of each such officer is a true specimen of the genuine signature of such officer and such individuals have the authority to execute documents to be delivered to, or upon the request of, U.S. Bank Trust Company, National Association, as Trustee under the Indenture dated as of February 27, 2026, by and among the Issuer, the Guarantors party thereto U.S. Bank Trust Company, National Association.
| Name |
Title: |
Signature | ||
| IN WITNESS WHEREOF, the undersigned has duly executed and delivered this Certificate as of the __day of _______, 20__. | ||
| Name: | ||
| Title: | ||
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Exhibit 10.1
Execution Version
FOURTH AMENDMENT TO CREDIT AGREEMENT
This FOURTH AMENDMENT to the Credit Agreement referred to below, dated as of February 27, 2026 (this “Fourth Amendment”) by and among Advanced Drainage Systems, Inc., a Delaware corporation (the “Borrower”), the Subsidiary Guarantors party hereto, the 2026 Refinancing Lenders, the 2026 Incremental Lenders, the Swingline Lender, the Issuing Lenders party hereto, Bank of America, N.A., as administrative agent for the Term Facility (in such capacity, the “Term Administrative Agent”), PNC Bank, National Association, as Revolving Administrative Agent (as defined below) and Successor Administrative Agent (as defined below) and Barclays Bank PLC, as administrative agent for the Secured Parties (“Barclays”, in such capacity, prior to the Fourth Amendment Effective Date (as defined below), the “Predecessor Administrative Agent”). Capitalized terms not otherwise defined in this Fourth Amendment have the same meanings as specified in the Credit Agreement, as amended by this Fourth Amendment (the “Amended Credit Agreement”).
RECITALS
WHEREAS, the Borrower, the several banks and other financial institutions or entities parties thereto from time to time as Lenders, the Issuing Lenders from time to time parties thereto and the Facilities Administrative Agents entered into that certain Credit Agreement, dated as of July 31, 2019 (as amended by the First Amendment to Credit Agreement, dated as of September 24, 2019, as amended by the Second Amendment to Credit Agreement, dated as of May 26, 2022, as amended by the Third Amendment to Credit Agreement, dated as of November 26, 2025 and as further amended, restated, amended and restated, supplemented or otherwise modified prior to the date hereof, the “Credit Agreement”);
WHEREAS, in accordance with the provisions of Section 4.19 of the Credit Agreement, the Borrower intends (i) to refinance in full the Existing Term Loans (as defined below) and, in connection therewith, the Borrower has requested Refinancing Term Commitments in an amount equal to the aggregate principal amount of Initial Term Loans outstanding on the Fourth Amendment Effective Date prior to giving effect to this Fourth Amendment, on the terms set forth herein and in the Credit Agreement, (ii) to refinance in full the Existing Revolving Commitments (as defined below) and, in connection therewith, the Borrower has requested Refinancing Revolving Commitments in an amount equal to the aggregate principal amount of all Revolving Commitments outstanding on the Fourth Amendment Effective Date prior to giving effect to this Fourth Amendment, on the terms set forth herein and in the Credit Agreement and (iii) to make certain other modifications to the Credit Agreement as more particularly set forth in Exhibit A hereto;
WHEREAS, each Person that executes and delivers this Fourth Amendment in its capacity as a Term Lender (each, a “2026 Refinancing Term Lender”) will, by the fact of such execution and delivery, be deemed (a) to have consented to the terms of this Fourth Amendment, including the amendment of the Credit Agreement and other modifications to the Loan Documents as set forth herein and (b) to have committed to make available Term Commitments in the form of Refinancing Term Commitments (collectively, the “2026 Refinancing Term Commitments” and the loans extended thereunder, the “2026 Refinancing Term Loans”) to the Borrower on the Fourth Amendment Effective Date, in the amount set forth opposite the name of such 2026 Refinancing Term Lender on Schedule I hereto;
WHEREAS, the 2026 Refinancing Term Loans will refinance in full the Initial Term Loans outstanding under the Credit Agreement immediately prior to the Fourth Amendment Effective Date (the “Existing Term Loans” and the Lenders thereof, the “Existing Term Lenders”), together with accrued interest and fees thereon (such refinancing, the “2026 Term Loan Refinancing”);
WHEREAS, each Person that executes and delivers this Fourth Amendment in its capacity as a Revolving Lender (each, in such capacity, a “2026 Refinancing Revolving Lender” and together with each 2026 Refinancing Term Lender, the “2026 Refinancing Lenders”) will, by the fact of such execution and delivery, be deemed (a) to have consented to the terms of this Fourth Amendment, including the amendment of the Credit Agreement and other modifications to the Loan Documents as set forth herein and (b) to have committed to make available Revolving Commitments in the form of Refinancing Revolving Commitments (collectively, the “2026 Refinancing Revolving Commitments” and any loans extended thereunder, the “2026 Refinancing Revolving Loans”) (the 2026 Refinancing Revolving Commitments and 2026 Refinancing Term Commitments, the “2026 Refinancing Commitments”) to the Borrower on the Fourth Amendment Effective Date, in the amount (together with its 2026 Incremental Revolving Commitment as provided below) set forth opposite the name of such Lender on Schedule I hereto;
WHEREAS, the 2026 Refinancing Revolving Commitments will replace in full the Revolving Commitments outstanding under the Credit Agreement immediately prior to the Fourth Amendment Effective Date (the “Existing Revolving Commitments” and the Lenders thereof, the “Existing Revolving Lenders”) together with any accrued fees thereon (such refinancing, the “2026 Revolving Refinancing” and together with the 2026 Term Loan Refinancing, the “2026 Refinancing”);
WHEREAS, pursuant to Section 4.17 of the Credit Agreement, the Borrower may incur Incremental Term Loan Commitments and Incremental Revolving Commitments by entering into an amendment executed by the Loan Parties, the Facilities Administrative Agents, and each lender providing such Incremental Term Loan Commitments and Incremental Revolving Commitments, as applicable, in each case subject to the express terms and conditions of the Credit Agreement;
WHEREAS, (i) the Borrower has requested and the lenders identified on Schedule I hereto as such (each, a “2026 Incremental Term Lender”) have agreed to provide, subject to the terms and conditions set forth herein, incremental term loan commitments denominated in Dollars in an aggregate principal amount of $192,000,000 (the “2026 Incremental Term Commitments” and the loans extended thereunder, the “2026 Incremental Term Loans”) (the 2026 Refinancing Term Loans and 2026 Incremental Term Loans, the “2026 Term Loans”) in accordance with Section 4.17 of the Credit Agreement and (ii) the Borrower has requested and the lenders identified on Schedule I hereto as such (in such capacity, each a “2026 Incremental Revolving Lender” and together with each 2026 Incremental Term Lender, the “2026 Incremental Lenders”; each 2026 Incremental Revolving Lender, together with each 2026 Refinancing Revolving Lender, the “2026 Revolving Lenders”) have agreed to provide, subject to the terms and conditions set forth herein, incremental revolving commitments denominated in Dollars (the “2026 Incremental Revolving Commitments” and the loans extended thereunder, the “2026 Incremental Revolving Loans”) (the
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2026 Refinancing Revolving Commitments and 2026 Incremental Revolving Commitments, the “2026 Revolving Commitments”) (the 2026 Incremental Term Commitments and 2026 Incremental Revolving Commitments, the “2026 Incremental Commitments”) in accordance with Section 4.17 of the Credit Agreement, such that, after giving effect to the 2026 Refinancing Revolving Commitments and the 2026 Incremental Revolving Commitments, the aggregate principal amount of the 2026 Revolving Commitments shall be $750,000,000;
WHEREAS, the Lenders party hereto are willing, on the terms and subject to the conditions set forth herein, to provide the 2026 Refinancing Commitments and the 2026 Incremental Commitments and to consent to such modifications to the Credit Agreement and the other Loan Documents as set forth herein (the transactions described in the foregoing paragraphs, including entry into of this Fourth Amendment, the 2026 Refinancing, the establishment of the 2026 Incremental Commitments and extension of loans thereunder, and the payment of fees and expenses in connection herewith, are collectively referred to as the “Fourth Amendment Transactions”);
WHEREAS, (i) PNC Capital Markets LLC, Bank of America, N.A., JPMorgan Chase Bank, N.A., BMO Capital Markets Corp., Fifth Third Bank, National Association, HSBC Securities (USA) Inc. and Morgan Stanley Senior Funding, Inc. shall act as joint lead arrangers and bookrunners with respect to the 2026 Revolving Commitments provided for hereunder and (ii) Bank of America, N.A., PNC Capital Markets LLC, JPMorgan Chase Bank, N.A., Fifth Third Bank, National Association and Jefferies Finance LLC shall act as joint lead arrangers and bookrunners with respect to the 2026 Term Loans provided for hereunder (each, a “Fourth Amendment Arranger”, and collectively, the “Fourth Amendment Arrangers”).
WHEREAS, (i) the Borrower has requested that the parties hereto consent to the replacement of Barclays as the Administrative Agent under the Amended Credit Agreement and the other Loan Documents with PNC Bank, National Association (“PNC Bank”) pursuant to Article III of this Fourth Amendment (the “Collateral Agency Transfer”) and (ii) Bank of America, N.A. is being designated and appointed as Term Administrative Agent;
WHEREAS, in accordance with Sections 4.17, 4.19 and 11.1 of the Credit Agreement, the Borrower, the Predecessor Administrative Agent, the Facilities Administrative Agents, the Lenders constituting at least the Required Lenders and the Issuing Lenders are willing to effect the amendments set forth herein and agree to the terms of the Amended Credit Agreement, in each case, on the terms and subject to the terms and conditions in this Fourth Amendment; and
WHEREAS, each Loan Party party hereto (collectively, the “Reaffirming Parties”, and each, a “Reaffirming Party”) expects to realize substantial direct and indirect benefits as a result of this Fourth Amendment becoming effective and the consummation of the transactions contemplated hereby and agrees to reaffirm its obligations pursuant to the Guarantee and Collateral Agreement, the Security Documents, and the other Loan Documents to which it is a party.
NOW, THEREFORE, in consideration of the covenants and agreements contained herein, as well as other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
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ARTICLE I
2026 REFINANCING COMMITMENTS
SECTION 1.1 2026 Refinancing Term Commitments. The 2026 Refinancing Term Commitments shall be deemed incorporated into the Amended Credit Agreement mutatis mutandis as a new class of Term Commitments, on the terms and conditions set forth herein and in the Amended Credit Agreement.
SECTION 1.2 Each 2026 Refinancing Term Lender hereby acknowledges and agrees that it has a 2026 Refinancing Term Commitment comprising a portion of a single class of Refinancing Term Commitments as set forth opposite such 2026 Refinancing Term Lender’s name on Schedule I to this Fourth Amendment, and agrees to make 2026 Refinancing Term Loans to the Borrower on the Fourth Amendment Effective Date in accordance with the provisions of the Amended Credit Agreement.
SECTION 1.3 Effective as of the Fourth Amendment Effective Date, upon the satisfaction of the conditions precedent set forth in Article V of this Fourth Amendment, (i) each 2026 Refinancing Term Lender shall be a Term Lender for all purposes under the Amended Credit Agreement and the other Loan Documents, (ii) the 2026 Refinancing Term Commitments shall be Term Commitments for all purposes under the Amended Credit Agreement and the other Loan Documents, (iii) the 2026 Refinancing Term Loans shall be Term Loans for all purposes under the Amended Credit Agreement and the other Loan Documents and (iv) the 2026 Refinancing Term Loans shall automatically refinance and replace in their entirety the Existing Term Loans.
SECTION 1.4 The 2026 Refinancing Term Commitments hereunder will terminate in full on the Fourth Amendment Effective Date upon the making of the 2026 Refinancing Term Loans referred to herein. Once borrowed, amounts repaid in respect of the 2026 Refinancing Term Loans may not be reborrowed.
SECTION 1.5 Each Existing Term Lender shall receive a prepayment of the full principal amount of its Existing Term Loans on the Fourth Amendment Effective Date.
SECTION 1.6 2026 Refinancing Revolving Commitments. The 2026 Refinancing Revolving Commitments shall be deemed incorporated into the Amended Credit Agreement mutatis mutandis as a new class of Revolving Commitments, on the terms and conditions set forth herein and in the Amended Credit Agreement.
SECTION 1.7 Each 2026 Refinancing Revolving Lender hereby acknowledges and agrees that it has a 2026 Refinancing Revolving Commitment comprising a portion of a single class of Revolving Commitments, as set forth (together with its 2026 Incremental Revolving Commitment provided in accordance with Section 2.4 below) opposite such 2026 Refinancing Revolving Lender’s name on Schedule I to this Fourth Amendment, and agrees to make 2026 Refinancing Revolving Loans to the Borrower on and after the Fourth Amendment Effective Date in accordance with the provisions of the Amended Credit Agreement.
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SECTION 1.8 Effective as of the Fourth Amendment Effective Date, upon the satisfaction of the conditions precedent set forth in Article V of this Fourth Amendment, (i) each 2026 Refinancing Revolving Lender shall be a Revolving Lender for all purposes under the Amended Credit Agreement and the other Loan Documents, (ii) the 2026 Refinancing Revolving Commitments shall be Revolving Commitments for all purposes under the Amended Credit Agreement and the other Loan Documents, (iii) the 2026 Refinancing Revolving Loans shall be Revolving Loans for all purposes under the Amended Credit Agreement and the other Loan Documents and (iv) the 2026 Refinancing Revolving Commitments shall automatically replace in their entirety the Existing Revolving Commitments.
SECTION 1.9 This Fourth Amendment shall constitute (i) the notice of prepayment of Loans required pursuant to Section 4.1(a) of the Credit Agreement, (ii) the notice of termination of Revolving Commitments required pursuant to Section 3.6 of the Credit Agreement, (iii) a “Refinancing Amendment” and (iv) a “Loan Document”.
SECTION 1.10 The 2026 Refinancing Term Loans and the 2026 Refinancing Revolving Commitments shall in all respects be subject to the provisions of the Amended Credit Agreement and the other Loan Documents (including as to Loan Parties, Collateral (and ranking) and payment priority).
SECTION 1.11 Each 2026 Refinancing Lender (A) confirms that it has received a copy of the Amended Credit Agreement and the other Loan Documents, together with copies of the financial statements referred to therein, and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Fourth Amendment and to become (or continue to be, as applicable) a Lender under the Amended Credit Agreement, (B) agrees that it will, independently and without reliance upon the Fourth Amendment Arrangers, the Facilities Administrative Agents or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Amended Credit Agreement and the other Loan Documents, (C) acknowledges and agrees that no fiduciary or advisory relationship between the Fourth Amendment Arrangers, the Facilities Administrative Agents and such 2026 Refinancing Lender is intended to be or has been created in respect of any of the transactions contemplated by this Fourth Amendment, (D) acknowledges and agrees that the Fourth Amendment Arrangers and the Facilities Administrative Agents, on the one hand, and such 2026 Refinancing Lender, on the other hand, have an arms-length business relationship that does not directly or indirectly give rise to, and such 2026 Refinancing Lender does not rely on, any fiduciary duty on the part of the Fourth Amendment Arrangers or the Facilities Administrative Agents, (E) acknowledges and agrees that such 2026 Refinancing Lender is capable of evaluating and understanding, and such 2026 Refinancing Lender understands and accepts, the terms, risks and conditions of the transactions contemplated by this Fourth Amendment, (F) appoints and authorizes the Facilities Administrative Agents to take such action as agent on its behalf and to exercise such powers under the Amended Credit Agreement and the other Loan Documents as are delegated to the Facilities Administrative Agents, as the case may be, by the terms thereof, together with such powers as are reasonably incidental thereto and (G) agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Amended Credit Agreement and the other Loan Documents are required to be performed by it as a Lender.
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ARTICLE II
2026 INCREMENTAL COMMITMENTS
SECTION 2.1 2026 Incremental Term Commitments. Subject to the satisfaction or waiver of the conditions set forth in Article V hereof, on the Fourth Amendment Effective Date, each 2026 Incremental Term Lender agrees to make its respective 2026 Incremental Term Commitments available to the Borrower.
SECTION 2.2 The 2026 Incremental Term Commitments hereunder will terminate in full on the Fourth Amendment Effective Date upon the making of the 2026 Incremental Term Loans referred to herein. Once borrowed, amounts repaid in respect of the 2026 Incremental Term Loans may not be reborrowed.
SECTION 2.3 The terms and provisions of the 2026 Incremental Term Commitments shall be identical to those of the 2026 Refinancing Term Commitments. This Fourth Amendment constitutes an “Incremental Commitment Agreement”. Each of the 2026 Incremental Term Lenders constitutes an “Additional Lender” pursuant to Section 4.17(b) of the Credit Agreement and, in such capacity, acknowledges the provisions of Section 4.17 of the Credit Agreement. For the avoidance of doubt, commitments and loans made pursuant to the 2026 Incremental Term Commitment shall be “Term Commitments”, “Term Loans” and “Loans” for all purposes under the Credit Agreement and each other Loan Document and shall be treated as the same class and Facility as the 2026 Refinancing Term Commitments and 2026 Refinancing Term Loans established on the Fourth Amendment Effective Date. The Borrower and the 2026 Incremental Term Lenders hereby authorize the Term Administrative Agent to update the Register to reflect the amount, terms and date of the 2026 Incremental Term Commitments and the identity of the 2026 Incremental Term Lenders.
SECTION 2.4 2026 Incremental Revolving Commitment: Subject to the satisfaction or waiver of the conditions set forth in Article V hereof, on the Fourth Amendment Effective Date, each 2026 Incremental Revolving Lender agrees to make its respective 2026 Incremental Revolving Commitment available to the Borrower.
SECTION 2.5 The terms and provisions of the 2026 Incremental Revolving Commitments shall be identical to those of the 2026 Refinancing Revolving Commitments. This Fourth Amendment constitutes an “Incremental Commitment Agreement” and the 2026 Incremental Revolving Commitment made by each 2026 Incremental Revolving Lender is hereby established as an increase to the Total Revolving Commitment. Each of the 2026 Incremental Revolving Lenders constitutes an “Additional Lender” pursuant to Section 4.17(b) of the Credit Agreement and, in such capacity, acknowledges the provisions of Section 4.17 of the Credit Agreement. For the avoidance of doubt, commitments and loans made pursuant to the 2026 Incremental Revolving Commitment shall be “Revolving Commitments”, “Revolving Loans” and “Loans” for all purposes under the Credit Agreement and each other Loan Document and shall be treated as the same class and Facility as the 2026 Refinancing Revolving Commitments and 2026 Refinancing Revolving Loans established on the Fourth Amendment Effective Date. The Borrower and the 2026 Incremental Revolving Lenders hereby authorize the Revolving Administrative Agent to update the Register to reflect the amount, terms and date of the 2026 Incremental Revolving Commitments and the identity of the 2026 Incremental Revolving Lenders.
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SECTION 2.6 On the Fourth Amendment Effective Date, (i) each Existing Revolving Lender will automatically and without further act be deemed to have assigned to each 2026 Revolving Lender, and each 2026 Revolving Lender will automatically and without further act be deemed to have assumed, a portion of such Existing Revolving Lender’s participations under the Credit Agreement in outstanding Letters of Credit, such that, after giving effect to each deemed assignment and assumption of participations, all of the 2026 Revolving Lenders’ participations under the Credit Agreement in Letters of Credit shall be held on a pro rata basis on the basis of their respective Revolving Commitments (after giving effect to any increase in the Revolving Commitments pursuant hereto), and (ii) if any Revolving Loans are outstanding on such date, the Existing Revolving Lenders shall assign Revolving Loans to the 2026 Revolving Lenders, and the 2026 Revolving Lenders shall purchase such Revolving Loans, in each case to the extent necessary so that all of the 2026 Revolving Lenders participate in each outstanding Revolving Loans pro rata on the basis of their respective Revolving Commitments (after giving effect to any increase in the Revolving Commitments pursuant to this Fourth Amendment); it being understood and agreed that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained in the Credit Agreement shall not apply to the transactions effected pursuant to this Section 2.6. The outstanding Letters of Credit as of the Fourth Amendment Effective Date are described in Schedule V hereto.
ARTICLE III
COLLATERAL AGENCY TRANSFER
SECTION 3.1 (i) The Predecessor Administrative Agent hereby resigns as the Administrative Agent under the Loan Documents, and the Required Lenders and the Borrower hereby accept the resignation of the Predecessor Administrative Agent as the “Administrative Agent” under the Loan Documents, (ii) the Required Lenders hereby appoint PNC Bank to act as the successor Administrative Agent under the Loan Documents (the “Successor Administrative Agent”), (iii) the Borrower hereby consents to and accepts the appointment of PNC Bank as the Successor Administrative Agent under the Loan Documents (in the case of each of clauses (i) through (iii), including, without limitation, with respect to Section 7 of the Guarantee and Collateral Agreement) and (iv) each of the parties hereto waives any applicable notice requirements under the Loan Documents and any inconsistency or conflict with the provisions in Section 10 of the Credit Agreement with respect to the actions described in the immediately preceding clauses (i), (ii) and (iii). Such resignation and appointment shall become effective on the Fourth Amendment Effective Date, and the parties hereto hereby confirm that the Successor Administrative Agent succeeds to the rights and obligations of the Predecessor Administrative Agent under the Amended Credit Agreement and the other Loan Documents and becomes vested with all of the rights, powers, privileges and duties of the collateral agent under each of the Loan Documents (other than any rights to indemnity payments owed to the Predecessor Administrative Agent) and the Predecessor Administrative Agent is discharged from all of its duties and obligations as “Administrative Agent” and collateral agent under the Amended Credit Agreement and the other Loan Documents, in each case, as of the Fourth Amendment Effective Date (although, for the avoidance of doubt, the Predecessor Administrative Agent shall retain its rights under Section 10 and Section 11.5 of the Credit Agreement).
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SECTION 3.2 Each of the parties hereto expressly agrees and acknowledges that the Successor Administrative Agent is not assuming any liability, and shall have no liability, (i) under or related to the Loan Documents prior to the Fourth Amendment Effective Date, (ii) for any claims under or related to the Loan Documents that may have arisen or accrued prior to the Fourth Amendment Effective Date or (iii) for any actions taken or omitted to be taken by the Predecessor Administrative Agent while the Predecessor Administrative Agent served as “Administrative Agent” under the Loan Documents. Each of the parties hereto hereby expressly agrees and acknowledges that (x) neither the Successor Administrative Agent nor the Predecessor Administrative Agent (1) has undertaken any analysis of the Loan Documents or the Collateral, (2) has made any independent investigation as to the completeness or accuracy of the attachments and schedules attached to the Loan Documents and the information contained therein (and each of the Predecessor Administrative Agent and the Successor Administrative Agent may conclusively rely thereon for all purposes under the Credit Agreement, the Amended Credit Agreement and the other Loan Documents) or (3) has made any determination as to (i) the validity, enforceability, effectiveness or priority of any Liens granted or purported to be granted pursuant to the Loan Documents or (ii) the accuracy or sufficiency of the documents, filings, recordings and other actions taken to create, perfect or maintain the existence, perfection or priority of the Liens granted or purported to be granted pursuant to the Loan Documents and (y) each of the Predecessor Administrative Agent and the Successor Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper person. Each of the Predecessor Administrative Agent and the Successor Administrative Agent shall be entitled to assume that, as of the Fourth Amendment Effective Date, all Liens purported to be granted pursuant to the Loan Documents are valid and perfected Liens having the priority intended by the Secured Parties and the Loan Documents. Each of the parties hereto hereby expressly agrees and confirms that, with respect to its applicable indemnification obligations under the Loan Documents, the Predecessor Administrative Agent’s right to indemnification, as set forth in the Loan Documents, shall apply with respect to any and all losses, claims, costs and expenses that the Predecessor Administrative Agent suffers or incurs relating to actions taken or omitted to be taken by any of the parties to this Fourth Amendment (including the Predecessor Administrative Agent, its sub-agents (if any) and their respective Affiliates) on or prior to the Fourth Amendment Effective Date, or after the Fourth Amendment Effective Date in connection with the resignation of the Predecessor Administrative Agent and the appointment of the Successor Administrative Agent as set forth in this Article III and the Collateral Agency Transfer contemplated hereunder, in each case, solely to the extent set forth in the Credit Agreement. Each of the parties hereto expressly agrees that neither Barclays, in its individual capacity or in its capacity as the Predecessor Administrative Agent, nor any of its Affiliates (x) shall bear any responsibility or liability for (i) any actions taken or omitted to be taken by PNC Bank (in its individual capacity or in its capacity as the Successor Administrative Agent) or otherwise in connection with the Collateral Agency Transfer or, on and after the Fourth Amendment Effective Date, under the Credit Agreement, the Amended Credit Agreement or any of the other Loan Documents or (ii) any claims under or related to the Loan Documents (other than any such claims in connection with the Collateral Agency Transfer) to the extent arising or accrued after the Fourth Amendment Effective Date and (y) makes any representation or warranty of any kind with respect to the Collateral Agency Transfer or otherwise.
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SECTION 3.3 The Predecessor Administrative Agent hereby transfers and assigns to the Successor Administrative Agent, effective on and after the Fourth Amendment Effective Date, all right, title and interest of the Predecessor Administrative Agent in and to the Loan Documents and any control agreement or third party acknowledgement, estoppel, waiver, access agreement or other consent, document or agreement entered into by the Predecessor Administrative Agent for the benefit of other Secured Parties in connection with the Loan Documents (the “Ancillary Documents”), including, without limitation, each of the Liens and security interests granted to the Predecessor Administrative Agent under the Loan Documents, and the Successor Administrative Agent hereby assumes all such Liens and security interests, for its benefit and for the ratable benefit of all other Secured Parties under the Loan Documents. Each of the Borrower, the other Loan Parties party hereto and the Predecessor Administrative Agent authorizes the Successor Administrative Agent and its agents and representatives to file any intellectual property, UCC (or equivalent) assignments or amendments with respect to the intellectual property, UCC (or equivalent) financing statements and other filings in respect of the Collateral as the Successor Administrative Agent deems reasonably necessary or desirable to maintain or perfect the Successor Administrative Agent’s security interest in the Collateral. On and after the Fourth Amendment Effective Date, any possessory collateral held by the Predecessor Administrative Agent for the benefit of the Secured Parties shall be deemed to be held by the Predecessor Administrative Agent as agent and bailee for the Successor Administrative Agent for the benefit of the Secured Parties until such time as such possessory collateral has been delivered to the Successor Administrative Agent. Without limiting the generality of the foregoing, (i) any reference to the Predecessor Administrative Agent in any publicly filed document, to the extent such filing relates to the Liens and security interests in the Collateral assigned hereby and until such filing is modified to reflect the interests of the Successor Administrative Agent, shall, with respect to such Liens and security interests, constitute a reference to the Predecessor Administrative Agent as collateral agent and sub-agent of the Successor Administrative Agent, (ii) any reference to the Predecessor Administrative Agent as an insured or additional insured and/or loss payee under any insurance required to be maintained pursuant to the Loan Documents shall, until the Successor Administrative Agent is substituted as an insured or additional insured and/or loss payee thereunder, constitute a reference to the Predecessor Administrative Agent as sub-agent of the Successor Administrative Agent and (iii) any reference to the Predecessor Administrative Agent in any pledge agreement, security agreement, mortgage, hypothec, intellectual property security agreement or other Security Document shall, until the Successor Administrative Agent is substituted thereunder (whether pursuant to this Fourth Amendment, by operation of law or, if required, by subsequent amendment, assignment, filing or other instrument), constitute a reference to the Predecessor Administrative Agent as sub-agent of the Successor Administrative Agent (provided, that in the case of each of clauses (i), (ii) and (iii), the parties hereto agree that the Predecessor Administrative Agent ’s role as such collateral agent and sub-agent shall not extend beyond 60 days following the Fourth Amendment Effective Date without the prior written consent of the Predecessor Administrative Agent, shall impose no duties, obligations or liabilities on the Predecessor Administrative Agent, including, without limitation, any duty to take any type of direction regarding any action to be taken against such Collateral, whether such direction comes from the Successor Administrative Agent, the Required Lenders or otherwise, and the Predecessor Administrative Agent shall have the full benefit of the indemnification provisions of the Loan
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Documents while serving in any such capacity). The Successor Administrative Agent agrees to take possession of any possessory collateral delivered to the Successor Administrative Agent following the Fourth Amendment Effective Date upon tender thereof by the Predecessor Administrative Agent. Each of the Borrower, each Loan Party and the Predecessor Administrative Agent agrees that, following the Fourth Amendment Effective Date, it shall furnish, at the Borrower’s expense, additional releases, amendments or termination statements and such other documents, instruments and agreements as are customary and may reasonably be requested by the Successor Administrative Agent from time to time in order to effect the matters covered hereby and the Predecessor Administrative Agent shall have the full benefit of the indemnification provisions of the Loan Documents in connection with any such action.
SECTION 3.4 The Predecessor Administrative Agent agrees to use commercially reasonable efforts to take all actions reasonably requested by the Successor Administrative Agent or its representatives at the sole cost of the Borrower and subject to and in accordance with the Predecessor Administrative Agent ’s internal policies and contractual obligations and applicable law, to facilitate the transfer of information in its possession with respect to the Loan Documents needed by the Successor Administrative Agent in connection with the Loan Documents and the transactions to be effected pursuant to this Fourth Amendment, and the parties hereto agree that the Predecessor Administrative Agent shall have the full benefit of the indemnification provisions of the Loan Documents in connection with any such action.
SECTION 3.5 In the event that, after the Fourth Amendment Effective Date, the Predecessor Administrative Agent receives any principal, interest or other amount owing by the Borrower or any other Loan Party to any Lender, any Facilities Administrative Agent or the Successor Administrative Agent under the Credit Agreement, the Amended Credit Agreement or any other Loan Document, the Predecessor Administrative Agent agrees that such payment shall be held in trust for the Facilities Administrative Agents, and the Predecessor Administrative Agent shall, at the cost of the Borrower, return such payment to the Applicable Administrative Agent or Successor Administrative Agent, as applicable, for payment to the Person entitled thereto, and the parties hereto agree that the Predecessor Administrative Agent shall have the full benefit of the indemnification provisions of the Loan Documents in connection with any such action. In the event that, after the Fourth Amendment Effective Date, the Successor Administrative Agent receives any principal, interest or other amount owing to the Predecessor Administrative Agent under the Credit Agreement, the Amended Credit Agreement or any other Loan Document, the Successor Administrative Agent agrees that such payment shall be held in trust for the Predecessor Administrative Agent, and the Successor Administrative Agent shall return such payment to the Predecessor Administrative Agent.
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ARTICLE IV
AMENDMENTS TO CREDIT AGREEMENT
SECTION 4.1 Amendment of Existing Credit Agreement. On the Fourth Amendment Effective Date, the Borrower, the Lenders party hereto, the Issuing Lenders, and the Facilities Administrative Agents agree that the Credit Agreement shall be amended by:
(a) deleting
the stricken text (indicated textually in the same manner as the following example: stricken text) and adding the
double-underlined text (indicated textually in the same manner as the following example: double-underlined
text) as set forth in the Amended Credit Agreement attached hereto as Exhibit A,
(b) replacing Schedule 1.1(d) with Schedule II hereto,
(c) replacing Schedule 1.1(e) with Schedule III hereto, and
(d) replacing Schedule 1.1(f) with Schedule IV hereto,
in each case, subject to the satisfaction of the conditions precedent set forth in Article V below.
SECTION 4.2 Real Property Release. Pursuant to Section 11.1 of the Credit Agreement, the Lenders hereby (a) consent to the termination, satisfaction and release of any Lien created by the (i) Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing for Commercial Purposes, dated as of October 29, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the date hereof, the “Kentucky Mortgage”), by and among Infiltrator Water Technologies, LLC and BARCLAYS BANK PLC and (ii) Deed of Trust, Assignment of Leases and Rents, Security Agreement and Fixture Filing for Commercial Purposes, dated as of October 29, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the date hereof, the “Missouri Mortgage”, together with the Kentucky Mortgage, the “Mortgages”), by and among Advanced Drainage Systems, Inc., BARCLAYS BANK PLC, and other parties party thereto, (b) authorize the Administrative Agent to execute and deliver the release with respect to the Mortgages and (c) authorize the filings and/or recording of the release with respect to the Mortgages in the recording offices of the applicable jurisdiction.
ARTICLE V
CONDITIONS TO EFFECTIVENESS
SECTION 5.1 The effectiveness of this Fourth Amendment is subject to the satisfaction (or written waiver) of the following conditions (the date of satisfaction of such conditions being referred to herein as the “Fourth Amendment Effective Date”):
(a) The Facilities Administrative Agents shall have received this Fourth Amendment, executed and delivered by the Borrower, the Subsidiary Guarantors, the Facilities Administrative Agents, each 2026 Refinancing Lender and each 2026 Incremental Lender.
(b) All fees and expenses required to be paid hereunder, pursuant to the Credit Agreement and otherwise in the amounts and on the dates agreed to in writing in connection with the Fourth Amendment shall have been paid in full in cash or will be paid in full in cash on the Fourth Amendment Effective Date, including all reasonable and documented out-of-pocket expenses (including reasonable fees, charges and disbursements of Latham & Watkins LLP) incurred by the Lenders, the Issuing Lenders, the Facilities Administrative Agents and their respective Affiliates in connection with the execution and delivery of this Fourth Amendment.
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(c) No Default or Event of Default has occurred and is continuing on the Fourth Amendment Effective Date both before and after giving effect to the Fourth Amendment Transactions.
(d) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects on and as of the Fourth Amendment Effective Date as if made on and as of the Fourth Amendment Effective Date, except to the extent that such representations and warranties refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; provided that, in each case, such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof.
(e) The Facilities Administrative Agents shall have received (i) a certificate executed on behalf of the Borrower by a Responsible Officer of the Borrower dated as of the Fourth Amendment Effective Date, substantially in the form of Exhibit J to the Credit Agreement, and certifying as to the matters set forth in paragraphs (c) and (d) above and confirming the matters set forth in clause (d) of Article VI below, and (ii) a good standing certificate for the Borrower from its jurisdiction of organization.
(f) The Facilities Administrative Agents shall have received (i) a certificate of each Subsidiary Guarantor, dated the Fourth Amendment Effective Date, substantially in the form of Exhibit C to the Credit Agreement, and (ii) a good standing certificate for each Subsidiary Guarantor from its jurisdiction of organization.
(g) The Facilities Administrative Agents shall have received a customary legal opinion of each of (i) Squire Patton Boggs (US) LLP, as New York counsel to the Loan Parties and (ii) Stoel Rives LLP, as Oregon counsel to the Loan Parties.
(h) The Facilities Administrative Agents shall have received a solvency certificate of the chief financial officer of the Borrower, substantially in the form of Exhibit I of the Credit Agreement, which shall document the solvency of the Borrower and its Subsidiaries, on a consolidated basis, as of the Fourth Amendment Effective Date after giving effect to the Fourth Amendment Transactions.
(i) The Lenders shall have received from the Loan Parties, at least three Business Days prior to the Fourth Amendment Effective Date, (i) to the extent reasonably requested by the Facilities Administrative Agents or any Lender prior to the Fourth Amendment Effective Date, all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the Patriot Act and the Beneficial Ownership Regulation and (ii) if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certificate in relation to the Borrower.
(j) The Term Administrative Agent shall have received a notice of borrowing pursuant to Section 2.2 of the Credit Agreement.
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(k) Substantially concurrently with the borrowing of the 2026 Refinancing Term Loans and the incurrence of the 2026 Refinancing Revolving Commitments, the 2026 Refinancing shall have occurred.
(l) The Term Administrative Agent shall have received a notice of prepayment with respect to the Term Loans outstanding as of the Fourth Amendment Effective Date and the Borrower shall have paid to the Term Administrative Agent, for the account of each Term Lender immediately prior to the Fourth Amendment Effective Date, the principal amount of such Term Loans, together with all accrued and unpaid interest and fees outstanding as of Fourth Amendment Effective Date.
(m) The Revolving Administrative Agent shall have received a notice of prepayment with respect to the Revolving Loans outstanding as of the Fourth Amendment Effective Date and the Borrower shall have paid to the Revolving Administrative Agent, for the account of each Revolving Lender immediately prior to the Fourth Amendment Effective Date, the principal amount of such Revolving Loans, together with all accrued and unpaid interest and fees outstanding as of Fourth Amendment Effective Date.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
To induce the other parties hereto to enter into this Fourth Amendment, the Borrower represents and warrants to each of the Lenders and the Facilities Administrative Agents that, as of the Fourth Amendment Effective Date:
(a) this Fourth Amendment has been duly authorized, executed and delivered by the Borrower and constitutes, and the Amended Credit Agreement constitutes, the legal, valid and binding obligation of the Borrower, enforceable against the Borrower in accordance with its terms, except as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law);
(b) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects on and as of the Fourth Amendment Effective Date as if made on and as of the Fourth Amendment Effective Date, except to the extent that such representations and warranties refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; provided that, in each case, such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof;
(c) no Default or Event of Default shall have occurred and be continuing on the Fourth Amendment Effective Date both before and after giving effect to the Fourth Amendment Transactions;
(d) immediately prior to giving effect to this Fourth Amendment, there are no outstanding Revolving Loans, Swingline Loans or unreimbursed amounts under any Letter of Credit; and
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(e) the 2026 Incremental Commitments are requested, and shall be deemed incurred for all purposes, under the Incremental Amount, pursuant to the terms of the Credit Agreement. The establishment of the 2026 Incremental Commitment complies with the provisions of Section 4.17 of the Credit Agreement.
ARTICLE VII
EFFECTS ON LOAN DOCUMENTS
Except as specifically amended herein or contemplated hereby, all Loan Documents shall continue to be in full force and effect and are hereby in all respects ratified and confirmed. Except as specifically amended herein or contemplated hereby, the execution, delivery and effectiveness of this Fourth Amendment shall not operate as a waiver of any right, power or remedy of any Lender or the Facilities Administrative Agents under any of the Loan Documents, nor constitute a waiver of any provision of the Loan Documents or in any way limit, impair or otherwise affect the rights and remedies of the Lenders or the Facilities Administrative Agents under the Loan Documents. The Borrower acknowledges and agrees that, on and after the Fourth Amendment Effective Date, this Fourth Amendment shall constitute a Loan Document for all purposes of the Amended Credit Agreement. On and after the Fourth Amendment Effective Date, each reference in the Amended Credit Agreement to “this Fourth Amendment”, “hereunder”, “hereof”, “herein” or words of like import referring to the Credit Agreement, and each reference in the other Loan Documents to “Credit Agreement”, “thereunder”, “thereof” or words of like import referring to the Credit Agreement shall mean and be a reference to the Amended Credit Agreement, and this Fourth Amendment and the Amended Credit Agreement shall be read together and construed as a single instrument. Nothing herein shall be deemed to entitle the Borrower to a further consent to, or a further waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Amended Credit Agreement or any other Loan Document in similar or different circumstances.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 Execution by the Facilities Administrative Agents. Each of the Facilities Administrative Agents is entering into, and signing, this Fourth Amendment (x) in respect of the 2026 Refinancing Commitments set forth in Article I hereof, in accordance with Section 4.19 of the Credit Agreement, (y) in respect of the 2026 Incremental Commitments set forth in Article II hereof, in accordance with Section 4.17 of the Credit Agreement, and (z) in respect of the amendments set forth in Article III hereof, as directed by the Required Lenders.
SECTION 8.2 Indemnification. The Borrower hereby confirms that the indemnification provisions set forth in Sections 4.11, 10.7 and 11.5 of the Amended Credit Agreement shall apply to this Fourth Amendment and the transactions contemplated hereby, mutatis mutandis.
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SECTION 8.3 Reaffirmation. Each of the Reaffirming Parties, as party to the Credit Agreement, the Security Documents and the other Loan Documents to which it is a party, in each case as amended, supplemented or otherwise modified from time to time and by this Fourth Amendment, hereby (i) reaffirms (A) each Lien granted by it to the Successor Administrative Agent for the benefit of the Secured Parties and (B) any guaranties made by it pursuant to the Credit Agreement, and (ii) acknowledges and agrees that the grants of security interests by the Loan Parties contained in the Security Documents shall remain in full force and effect after giving effect to the Fourth Amendment. Nothing contained in this Fourth Amendment shall be construed as a substitution or novation of the obligations outstanding under the Credit Agreement or the other Loan Documents, which shall remain in full force and effect, except to any extent modified hereby.
SECTION 8.4 Amendments; Execution in Counterparts; Severability.
(a) This Fourth Amendment may not be amended nor may any provision hereof be waived except pursuant to Section 11.1 of the Amended Credit Agreement; and
(b) Any provision of this Fourth Amendment that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
SECTION 8.5 Governing Law; Waiver of Jury Trial; Jurisdiction. THIS FOURTH AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS FOURTH AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. EACH PARTY HERETO HEREBY IRREVOCABLY ABD UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS FOURTH AMENDMENT, THE AMENDED CREDIT AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN. The provisions of Sections 11.11 and 11.12 of the Amended Credit Agreement are incorporated herein by reference, mutatis mutandis.
SECTION 8.6 Headings. Section headings in this Fourth Amendment are included herein for convenience of reference only, are not part of this Fourth Amendment and are not to affect the construction of, or to be taken into consideration in interpreting, this Fourth Amendment.
SECTION 8.7 Counterparts. This Fourth Amendment may be executed by one or more of the parties to this Fourth Amendment on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Fourth Amendment by facsimile transmission or electronic transmission (e.g., “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Fourth Amendment. Without limitation of the foregoing, the words “execution”, “executed”, “signed”, “signature” and words of like import shall be deemed to include electronic signatures, 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 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 Transaction Act.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Fourth Amendment to be duly executed and delivered by their respective proper and duly authorized officers as of the day and year first above written.
| Borrower: | ||
| ADVANCED DRAINAGE SYSTEMS, INC. | ||
| By: | /s/ Scott A. Cottrill | |
| Name: | Scott A. Cottrill | |
| Title: Executive Vice President, Chief Financial Officer and Secretary | ||
| Guarantors: | ||
| STORMTECH LLC | ||
| By: | /s/ Dean G. Bruno | |
| Name: | Dean G. Bruno | |
| Title: | Treasurer | |
| INFILTRATOR WATER TECHNOLOGIES, LLC | ||
| By: | /s/ Dean G. Bruno | |
| Name: | Dean G. Bruno | |
| Title: | Treasurer | |
| ORENCO SYSTEMS, INC. | ||
| By: | /s/ Dean G. Bruno | |
| Name: | Dean G. Bruno | |
| Title: | Treasurer | |
[Signature Page to Fourth Amendment to Credit Agreement]
| Term Administrative Agent: | ||
| BANK OF AMERICA, N.A., as Term Administrative Agent | ||
| By: | /s/ Denise Jones | |
| Name: Denise Jones | ||
| Title: Vice President | ||
[Signature Page to Fourth Amendment to Credit Agreement]
| Revolving Administrative Agent and Successor Administrative Agent: | ||
| PNC BANK, NATIONAL ASSOCIATION, as Revolving Administrative Agent and Successor Administrative Agent | ||
| By: | /s/ Anthony Irwin | |
| Name: Anthony Irwin | ||
| Title: Senior Vice President | ||
[Signature Page to Fourth Amendment to Credit Agreement]
| Predecessor Administrative Agent: | ||
| BARCLAYS BANK PLC, as Predecessor Administrative Agent | ||
| By: | /s/ Hajro Kalenovic | |
| Name: Hajro Kalenovic | ||
| Title: AVP | ||
[Signature Page to Fourth Amendment to Credit Agreement]
| Lenders: | ||
| BANK OF AMERICA, N.A., as 2026 Refinancing Term Lender, 2026 Incremental Term Lender, 2026 Refinancing Revolving Lender, 2026 Incremental Revolving Lender and Issuing Lender | ||
| By: | /s/ Gregg Bush | |
| Name: Gregg Bush | ||
| Title: Senior Vice President | ||
[Signature Page to Fourth Amendment to Credit Agreement]
| Lenders (cont.): | ||
| PNC BANK, NATIONAL ASSOCIATION, as 2026 Refinancing Revolving Lender, 2026 Incremental Revolving Lender, Swingline Lender and Issuing Lender | ||
| By: | /s/ Anthony Irwin | |
| Name: Anthony Irwin | ||
| Title: Senior Vice President | ||
[Signature Page to Fourth Amendment to Credit Agreement]
| JPMORGAN CHASE BANK, N.A., as 2026 Refinancing Revolving Lender and 2026 Incremental Revolving Lender | ||
| By: | /s/ Richard Barrit | |
| Name: Richard Barritt | ||
| Title: Managing Director | ||
[Signature Page to Fourth Amendment to Credit Agreement]
| MORGAN STANLEY BANK, N.A., as 2026 Refinancing Revolving Lender and 2026 Incremental Revolving Lender | ||
| By: | /s/ Michael King | |
| Name: Michael King | ||
| Title: Authorized Signatory | ||
[Signature Page to Fourth Amendment to Credit Agreement]
| FIFTH THIRD BANK, NATIONAL ASSOCIATION, as 2026 Refinancing Revolving Lender and 2026 Incremental Revolving Lender | ||
| By: | /s/ Ryen Stewart | |
| Name: Ryen Stewart | ||
| Title: VP. Commercial Bank | ||
[Signature Page to Fourth Amendment to Credit Agreement]
| BMO BANK N.A., as 2026 Refinancing Revolving Lender and 2026 Incremental Revolving Lender | ||
| By: | /s/ James Stephens | |
| Name: James Stephens | ||
| Title: Director | ||
[Signature Page to Fourth Amendment to Credit Agreement]
| HSBC BANK USA, N.A., as 2026 Refinancing Revolving Lender and 2026 Incremental Revolving Lender | ||
| By: | /s/ Meghan C. Quinn | |
| Name: Meghan C. Quinn | ||
| Title: Senior Vice President | ||
[Signature Page to Fourth Amendment to Credit Agreement]
| CITIZENS BANK, N.A., as 2026 Refinancing Revolving Lender and 2026 Incremental Revolving Lender | ||
| By: | /s/ Christopher T. McElwain | |
| Name: Christopher T. McElwain | ||
| Title: Vice President | ||
[Signature Page to Fourth Amendment to Credit Agreement]
| NORTHWEST BANK, as 2026 Refinancing Revolving Lender and 2026 Incremental Revolving Lender | ||
| By: | /s/ Jeffrey Dears | |
| Name: Jeffrey Dears | ||
| Title: Senior Vice President | ||
[Signature Page to Fourth Amendment to Credit Agreement]
SCHEDULE I
| 2026 Refinancing Term Lender |
2026 Refinancing Term Commitment | |||
| BANK OF AMERICA, N.A. |
$ | 408,000,000 | ||
| Total |
$ | 408,000,000 | ||
| 2026 Incremental Term Lender |
2026 Incremental Term Commitment | |||
| BANK OF AMERICA, N.A. |
$ | 192,000,000 | ||
| Total |
$ | 192,000,000 | ||
| 2026 Revolving Lenders |
2026 Revolving Commitment | |||
| PNC BANK, NATIONAL ASSOCIATION |
$ | 125,000,000 | ||
| BANK OF AMERICA, N.A. |
$ | 100,000,000 | ||
| JPMORGAN CHASE BANK, N.A. |
$ | 100,000,000 | ||
| MORGAN STANLEY BANK, N.A. |
$ | 80,000,000 | ||
| FIFTH THIRD BANK, NATIONAL ASSOCIATION |
$ | 80,000,000 | ||
| BMO BANK, N.A. |
$ | 80,000,000 | ||
| HSBC BANK USA, N.A. |
$ | 80,000,000 | ||
| CITIZENS BANK, N.A. |
$ | 60,000,000 | ||
| NORTHWEST BANK |
$ | 45,000,000 | ||
| Total |
$ | 750,000,000.00 | ||
SCHEDULE II
Schedule 1.1(d)
Term Loan Allocations
| Lender |
Term Commitments | Applicable Percentage |
||||||
| BANK OF AMERICA, N.A. |
$ | 600,000,000.00 | 100 | % | ||||
| Total |
$ | 600,000,000.00 | 100 | % | ||||
SCHEDULE III
Schedule 1.1(e)
Revolving Commitment Allocations
| Lender |
Revolving Commitments | Applicable Percentage |
||||||
| PNC BANK, NATIONAL ASSOCIATION |
$ | 125,000,000 | 16.66 | % | ||||
| BANK OF AMERICA, N.A. |
$ | 100,000,000 | 13.33 | % | ||||
| JPMORGAN CHASE BANK, N.A. |
$ | 100,000,000 | 13.33 | % | ||||
| MORGAN STANLEY BANK, N.A. |
$ | 80,000,000 | 10.67 | % | ||||
| FIFTH THIRD BANK, NATIONAL ASSOCIATION |
$ | 80,000,000 | 10.67 | % | ||||
| BMO BANK, N.A. |
$ | 80,000,000 | 10.67 | % | ||||
| HSBC BANK USA, N.A. |
$ | 80,000,000 | 10.67 | % | ||||
| CITIZENS BANK, N.A. |
$ | 60,000,000 | 8.0 | % | ||||
| NORTHWEST BANK |
$ | 45,000,000 | 6.0 | % | ||||
| Total |
$ | 750,000,000.00 | 100.0 | % | ||||
SCHEDULE IV
Schedule 1.1(f)
Issuing Lenders and L/C Commitments
| Lender |
L/C Commitments | Applicable Percentage |
||||||
| PNC BANK, NATIONAL ASSOCIATION |
$ | 25,000,000 | 33.33 | % | ||||
| BANK OF AMERICA, N.A. |
$ | 25,000,000 | 33.33 | % | ||||
| JPMORGAN CHASE BANK, N.A. |
$ | 25,000,000 | 33.33 | % | ||||
| Total |
$ | 75,000,000.00 | 100.0 | % | ||||
SCHEDULE V
| Applicant |
Issuer |
Beneficiary |
Amount | |||||
| Advanced Drainage Systems, Inc. |
PNC Bank, National Association | The Travelers Indemnity Company | $ | 1,000,000.00 | ||||
| Infiltrator Water Technologies, LLC |
PNC Bank, National Association | Federal Insurance Company | $ | 24,360.00 | ||||
| Advanced Drainage Systems, Inc. |
PNC Bank, National Association | Liberty Mutual Insurance Company | $ | 9,108,533.00 | ||||
EXHIBIT A
Amended Credit Agreement
[See attached.]
Final Version
CREDIT AGREEMENT
dated as of July 31, 2019,
as
amended as of September 24, 2019, and
as amended as of May 26, 2022,
as amended as of November 26, 2025, and
as amended as of February 27, 2026
among
ADVANCED DRAINAGE SYSTEMS, INC.,
as Borrower
THE LENDERS PARTY HERETO,
and
BARCLAYS BANK PLCOF
AMERICA, N.A.,
as Term Administrative Agent,
and
PNC BANK, NATIONAL ASSOCIATION,
as Revolving Administrative Agent and Administrative Agent,
PNC CAPITAL MARKETS LLC,
BANK OF AMERICA, N.A.,
JPMORGAN CHASE BANK, N.A.,
BMO CAPITAL MARKETS CORP.,
FIFTH THIRD BANK, NATIONAL ASSOCIATION,
HSBC SECURITIES (USA) INC., and
BARCLAYS BANK PLC,
MORGAN STANLEY SENIOR FUNDING, INC.,
as Joint Lead Arrangers and Joint Bookrunners for the Revolving Facility,
BOFA
SECURITIES, INCBANK OF AMERICA,
N.A.,
PNC CAPITAL MARKETS LLC,
BMO
CAPITAL MARKETS CORPJPMORGAN CHASE
BANK, N.A.,
FIFTH THIRD BANK, NATIONAL ASSOCIATION, and
HSBC
SECURITIES (USA) INC.JEFFERIES
FINANCE LLC,
as Joint Lead Arrangers and Joint Bookrunners for the Initial Term Facility
PNC CAPITAL MARKETS LLC,
BARCLAYS
BANK
PLC
OF AMERICA, N.A., and
JPMORGAN CHASE BANK, N.A.,
as Syndication Agents for the Revolving Facility,
BMO CAPITAL MARKETS CORP.,
FIFTH THIRD BANK, NATIONAL ASSOCIATION,
BOFA
HSBC SECURITIES, (USA) INC., and
as Syndication Agents
and
MORGAN STANLEY SENIOR FUNDING, INC.,
FIFTH THIRD BANK, NATIONAL ASSOCIATION,
as Documentation Agents for the Revolving Facility,
and
ROBERT W. BAIRD & CO. INCORPORATED,
BMO
LOOP CAPITAL MARKETS
CORP., and
OPPENHEIMER & CO., and
UBS SECURITIES LLC,
HSBC SECURITIES (USA) INC.
as Documentation Agents for the Initial Term Facility.
TABLE OF CONTENTS
| Page | ||||||
| Section 1. |
DEFINITIONS | |||||
| 1.1 |
Defined Terms | |||||
| 1.2 |
Other Definitional Provisions | |||||
| 1.3 |
Certain Calculations and Tests | |||||
| 1.4 |
Divisions | |||||
| 1.5 |
Interest Rates | |||||
| 1.6 |
Cashless Rollovers | |||||
| 1.7 |
Compliance with Certain Sections | |||||
| 1.8 |
Exchange Rates; Currency Equivalents; Basket Calculations | |||||
| Section 2. |
AMOUNT AND TERMS OF TERM LOANS | |||||
| 2.1 |
Term Loans | |||||
| 2.2 |
Procedure for the Initial Term Loan Borrowing | |||||
| 2.3 |
Repayment of Initial Term Loans | |||||
| Section 3. |
AMOUNT AND TERMS OF REVOLVING COMMITMENTS | |||||
| 3.1 |
Revolving Commitments | |||||
| 3.2 |
Procedure for Revolving Loan Borrowing | |||||
| 3.3 |
Swingline Commitment | |||||
| 3.4 |
Procedure for Swingline Borrowing; Refunding of Swingline Loans; Successor Swingline Lenders | |||||
| 3.5 |
Commitment Fees, etc. | |||||
| 3.6 |
Termination or Reduction of Revolving Commitments | |||||
| 3.7 |
Letter of Credit Commitment | |||||
| 3.8 |
Procedure for Issuance of Letters of Credit | |||||
i
| 3.9 |
Fees and Other Charges | |||||
| 3.10 |
Letter of Credit Participations | |||||
| 3.11 |
Reimbursement Obligation of the Borrower | |||||
| 3.12 |
Obligations Absolute | |||||
| 3.13 |
Letter of Credit Payments | |||||
| Section 4. |
GENERAL PROVISIONS APPLICABLE TO LOANS AND LETTERS OF CREDIT | |||||
| 4.1 |
Optional Prepayments | |||||
| 4.2 |
Mandatory Prepayments | |||||
| 4.3 |
Conversion and Continuation Options | |||||
| 4.4 |
Limitations on Term Benchmark Tranches | |||||
| 4.5 |
Interest Rates and Payment Dates; Administrative Agent Fees; Other Fees | |||||
| 4.6 |
Computation of Interest and Fees | |||||
| 4.7 |
Inability to Determine Interest Rate; Benchmark Replacement | |||||
| 4.8 |
Pro Rata Treatment and Payments | 85 | ||||
| 4.9 |
Requirements of Law | 87 | ||||
| 4.10 |
Taxes | 88 | ||||
| 4.11 |
Indemnity | 92 | ||||
| 4.12 |
Change of Lending Office | 93 | ||||
| 4.13 |
Replacement of Lenders | 93 | ||||
| 4.14 |
Evidence of Debt | 94 | ||||
| 4.15 |
Illegality | 94 | ||||
| 4.16 |
Defaulting Lenders | 95 | ||||
| 4.17 |
Incremental Facilities | 96 | ||||
| 4.18 |
Extension Amendments | 99 | ||||
| 4.19 |
Refinancing Facilities | 102 | ||||
ii
| Section 5. |
REPRESENTATIONS AND WARRANTIES | 104 | ||||
| 5.1 |
Financial Condition | 104 | ||||
| 5.2 |
No Change | 105 | ||||
| 5.3 |
Corporate Existence; Compliance with Law | 105 | ||||
| 5.4 |
Power; Authorization; Enforceable Obligations | 105 | ||||
| 5.5 |
No Legal Bar | 105 | ||||
| 5.6 |
Litigation | 106 | ||||
| 5.7 |
No Default | 106 | ||||
| 5.8 |
Ownership of Property; Liens | 106 | ||||
| 5.9 |
Intellectual Property | 106 | ||||
| 5.10 |
Taxes | 106 | ||||
| 5.11 |
Federal Regulations | |||||
| 5.12 |
Labor Matters | |||||
| 5.13 |
ERISA | 107 | ||||
| 5.14 |
Investment Company Act | 107 | ||||
| 5.15 |
Restricted Subsidiaries | 107 | ||||
| 5.16 |
Use of Proceeds | |||||
| 5.17 |
Environmental Matters | 108 | ||||
| 5.18 |
Accuracy of Information, etc. | |||||
| 5.19 |
Security Documents | 109 | ||||
| 5.20 |
Solvency | 110 | ||||
| 5.21 |
110 | |||||
| 5.22 |
Anti-Terrorism Laws | 110 | ||||
| 5.23 |
Anti-Corruption Laws and Sanctions | 111 | ||||
| 5.24 |
EEA Financial Institutions | |||||
| 5.25 |
Beneficial Ownership Certificate | |||||
|
5.26 |
Outbound Investment Rules | 112 | ||||
iii
| Section 6. |
CONDITIONS PRECEDENT | |||||
| 6.1 |
Conditions to Initial Extension of Credit | |||||
| 6.2 |
Conditions to Each Extension of Credit after the Closing Date | 114 | ||||
| Section 7. |
AFFIRMATIVE COVENANTS | |||||
| 7.1 |
Financial Statements | |||||
| 7.2 |
Certificates; Other Information | |||||
| 7.3 |
Payment of Obligations; Payment of Taxes | 117 | ||||
| 7.4 |
Maintenance of Existence; Compliance | |||||
| 7.5 |
Maintenance of Property; Insurance | 118 | ||||
| 7.6 |
Inspection of Property; Books and Records; Discussions | 118 | ||||
| 7.7 |
Notices | 119 | ||||
| 7.8 |
Environmental Laws | 119 | ||||
| 7.9 |
Additional Collateral, etc. | |||||
| 7.10 |
Use of Proceeds | |||||
| 7.11 |
Further Assurances | |||||
| 7.12 |
Ratings | |||||
| 7.13 |
Post-Closing Items | 124 | ||||
| Section 8. |
NEGATIVE COVENANTS | |||||
| 8.1 |
Financial Condition Covenant | |||||
| 8.2 |
Indebtedness | |||||
| 8.3 |
Liens | |||||
| 8.4 |
Fundamental Changes | |||||
| 8.5 |
Disposition of Property | |||||
iv
| 8.6 |
Restricted Payments | |||||
| 8.7 |
Investments | |||||
| 8.8 |
Optional Payments and Modifications of Certain Debt Instruments; Certain Modifications | |||||
| 8.9 |
Transactions with Affiliates | |||||
| 8.10 |
[Reserved] | |||||
| 8.11 |
Hedge Agreements | |||||
| 8.12 |
Changes in Fiscal Periods | |||||
| 8.13 |
Negative Pledge Clauses | |||||
| 8.14 |
Clauses Restricting Subsidiary Distributions | |||||
| 8.15 |
Lines of Business | |||||
|
8.16 |
Outbound Investment Rules | 144 | ||||
| Section 9. |
EVENTS OF DEFAULT | |||||
| Section 10. |
THE FACILITIES ADMINISTRATIVE AGENTS AND OTHER REPRESENTATIVES | |||||
| 10.1 |
Appointment | |||||
| 10.2 |
Delegation of Duties | 149 | ||||
| 10.3 |
Exculpatory Provisions | |||||
| 10.4 |
Reliance by the Facilities Administrative Agents | |||||
| 10.5 |
Notice of Default | |||||
| 10.6 |
Non-Reliance on Administrative Agent, the Revolving Administrative Agent and Other Lenders | |||||
| 10.7 |
Indemnification | |||||
| 10.8 |
Agent in Its Individual Capacity | |||||
| 10.9 |
Successor Administrative Agent | 153 | ||||
| 10.10 |
Facilities Administrative Agents Generally | |||||
v
| 10.11 |
Other Representatives | |||||
| 10.12 |
Withholding Tax | |||||
| 10.13 |
Facilities Administrative Agents May File Proofs of Claim | |||||
| 10.14 |
Certain ERISA Matters | 156 | ||||
| 10.15 |
Intercreditor Agreements | |||||
| 10.16 |
Erroneous Payment | |||||
| Section 11. |
MISCELLANEOUS | 159 | ||||
| 11.1 |
Amendments and Waivers | 159 | ||||
| 11.2 |
Notices | 161 | ||||
| 11.3 |
No Waiver; Cumulative Remedies | 164 | ||||
| 11.4 |
Survival of Representations and Warranties | |||||
| 11.5 |
Payment of Expenses; Indemnity | |||||
| 11.6 |
Successors and Assigns; Participations and Assignments | |||||
| 11.7 |
Adjustments; Set-off | |||||
| 11.8 |
Counterparts | 175 | ||||
| 11.9 |
Severability | |||||
| 11.10 |
Integration | |||||
| 11.11 |
GOVERNING LAW | |||||
| 11.12 |
Submission To Jurisdiction; Waivers | |||||
| 11.13 |
Acknowledgments | |||||
| 11.14 |
Releases of Guarantees and Liens | |||||
| 11.15 |
Confidentiality | |||||
| 11.16 |
WAIVERS OF JURY TRIAL | 178 | ||||
| 11.17 |
USA PATRIOT Act | |||||
| 11.18 |
Lender Action | |||||
vi
| 11.19 |
Certain Undertakings with Respect to Certain Affiliate Lenders | |||||
| 11.20 |
No Fiduciary Duty | |||||
| 11.21 |
180 | |||||
| 11.22 |
Judgment Currency | |||||
| 11.23 |
Acknowledgment Regarding Any Supported QFCs | 181 | ||||
vii
SCHEDULES:
| 1.1(b) | Closing Date Unrestricted Subsidiaries | |
| 1.1(c) | Existing Letters of Credit | |
| 1.1(d) | Term Loan Allocations | |
| 1.1(e) | Revolving Commitment Allocations | |
| 1.1(f) | Issuing Lenders and L/C Commitments | |
| 5.4 | Consents, Authorizations, Filings and Notices | |
| 5.6 | Litigation | |
| 5.15 | Restricted Subsidiaries | |
| 7.13 | Post-Closing Items | |
| 8.2(d) | Scheduled Existing Indebtedness | |
| 8.3(i) | Scheduled Existing Liens | |
| 8.7(e) | Scheduled Existing Investments | |
| 8.9(i) | Transactions with Affiliates | |
| 8.13(d) | Negative Pledge |
EXHIBITS:
| A | Form of Guarantee and Collateral Agreement | |
| B | Form of Compliance Certificate | |
| C | Form of Closing Certificate of the Guarantors | |
| D | ||
| E-1 | Form of Assignment and Assumption | |
| E-2 | Form of Affiliated Lender Assignment and Assumption | |
| F | Form of Exemption Certificate | |
| G-1 | Form of Term Note | |
| G-2 | Form of Revolving Note | |
| G-3 | Form of Swingline Note | |
| H | [Reserved] | |
| I | Form of Solvency Certificate | |
| J | Form of Closing Certificate of the Borrower | |
| K-1 | Form of Intercreditor Agreement | |
| K-2 | Form of Pari Debt Intercreditor Agreement |
viii
THIS CREDIT AGREEMENT, dated as of July 31, 2019 (as amended by that certain First
Amendment to Credit Agreement, dated as of September 24, 2019, as amended by that certain Second Amendment to Credit Agreement, dated as of May 26, 2022,
as amended by that certain Third Amendment to Credit Agreement, dated as of November 26, 2025, as amended by that certain Fourth Amendment to Credit Agreement, dated as of February 27, 2026, and as
further amended, restated, amended and restated, supplemented or otherwise modified from time to time, this “Agreement”), is by and among Advanced Drainage Systems, Inc., a Delaware corporation (the “Borrower”),
the several banks and other financial institutions or entities from time to time parties hereto (collectively, the “Lenders”), the Issuing Lenders from time to time parties hereto, Barclays Bank
PLC
of America, N.A., as administrative agent for the Term Lenders (in such
capacity, the “Term Administrative Agent”) and
PNC Bank, National Association as administrative agent for the Revolving Lenders (in such capacity, the “Revolving Administrative
Agent”) and as Administrative Agent for the Secured
Parties.
Recitals
WHEREAS, on the Closing Date, substantially simultaneously with the consummation of the Acquisition, (a) the Term Lenders extended Term Loans in an aggregate principal amount of $1,300,000,000, (b) the Revolving Lenders provided Revolving Commitments in an aggregate principal amount of $350,000,000 and (c) the Issuing Lenders agreed to issue Letters of Credit in an aggregate amount available to be drawn not in excess of the Total L/C Commitments;
WHEREAS, on or prior to the First Amendment Effective Date, the
Borrower prepaid outstanding Term Loans in an aggregate principal amount of $600,000,000. The aggregate principal amount of the Initial Term Loans outstanding on the First Amendment Effective Date iswas $700,000,000;
WHEREAS,
on the Second Amendment Effective Date, the Borrower incurred Incremental Revolving Commitments in an aggregate principal amount of
$250,000,000. The aggregate principal amount of Revolving Commitments on the Second Amendment Effective Date was
$600,000,000;
and
WHEREAS, on the Fourth Amendment Effective Date, the Borrower incurred Refinancing Term Loans in an aggregate principal amount of $408,000,000, Incremental Term Loans in an aggregate principal amount of $192,000,000, Refinancing Revolving Commitments in an aggregate principal amount of $600,000,000 and Incremental Revolving Commitments in an aggregate principal amount of $150,000,000. The aggregate principal amount of the Term Loans outstanding on the Fourth Amendment Effective Date is $600,000,000 and the aggregate principal amount of Revolving Commitments on the Fourth Amendment Effective Date is $750,000,000;
WHEREAS, the Lenders and the Issuing Lenders have provided and are willing to provide such extensions of credit, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and to induce the Facilities Administrative AgentAgents, the Lenders and the Issuing Lenders to enter into this Agreement and to
induce the Lenders and the Issuing Lenders to make their respective extensions of credit to the Borrower hereunder, the parties hereto hereby agree as follows:
1
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the terms listed in this Section 1.1 shall have the respective meanings set forth in this Section 1.1.
“2026 Incremental Revolving Commitments”: as defined in the Fourth Amendment.
“2026 Incremental Revolving Tranche”: the Revolving Facility Tranche of 2026 Incremental Revolving Commitments established pursuant to the Fourth Amendment on the Fourth Amendment Effective Date.
“2026 Incremental Term Commitments”: as defined in the Fourth Amendment.
“2026 Incremental Term Lender”: as defined in the Fourth Amendment.
“2026 Incremental Term Loans”: as defined in the Fourth Amendment.
“2026 Refinancing Revolving Commitments”: as defined in the Fourth Amendment. For the avoidance of doubt, the 2026 Incremental Revolving Commitments are 2026 Refinancing Revolving Commitments.
“2026 Refinancing Revolving Tranche”: the Revolving Facility Tranche of 2026 Refinancing Revolving Commitments established pursuant to the Fourth Amendment on the Fourth Amendment Effective Date. For the avoidance of doubt, the 2026 Incremental Revolving Tranche shall constitute a part of the 2026 Refinancing Revolving Tranche.
“2026 Refinancing Term Commitments”: as defined in the Fourth Amendment. For the avoidance of doubt, the 2026 Incremental Term Commitments are 2026 Refinancing Term Commitments.
“2026 Refinancing Term Lender”: as defined in the Fourth Amendment. For the avoidance of doubt, the 2026 Incremental Term Lenders are 2026 Refinancing Term Lenders as of the Fourth Amendment Effective Date.
“2026 Refinancing Term Loans”: as defined in the Fourth Amendment. For the avoidance of doubt, the 2026 Incremental Term Loans funded on the Fourth Amendment Effective Date are 2026 Refinancing Term Loans.
“Acquisition”: the acquisition by the Borrower of 100% of the capital stock of the Target pursuant to the Acquisition Agreement.
2
“Acquisition Agreement”: that certain Agreement and Plan of Merger, dated as of the Closing Date, by and among the Borrower, the Target, Ocean Sub, Inc. and 2461461 Ontario Limited and, together with all exhibits, schedules and disclosure letters thereto.
“Additional Lender”: as defined in Section 4.17(b).
“Administrative Agent”: (a) prior to the Fourth Amendment Effective Date, Barclays Bank PLC and (b) on and after the Fourth Amendment Effective Date, PNC Bank, National Association, as administrative agent for the Secured Parties.
“Adjusted Term SOFR
Rate”:
with respect to any Term Benchmark Loan denominated in Dollars for any Interest Period, an interest rate per
annum equal to (a) the Term SOFR Rate for such Interest Period, plus
(b) the Applicable SOFR Adjustment.
“Administrative
Agent”: as defined in the preamble to this Agreement.
“Affected Financial Institution”: (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate”: as to any Person, any other Person that, directly or indirectly, is in control of, is controlled by, or is under common control with, such Person. For purposes of this definition, “control” of a Person means the power, directly or indirectly, either to (a) vote 10% or more of the securities having ordinary voting power for the election of directors (or persons performing similar functions) of such Person or (b) direct or cause the direction of the management and policies of such Person, whether by contract or otherwise.
“Affiliated Lender Assignment and Assumption”: an Affiliated Lender Assignment and Assumption, substantially in the form of Exhibit E-2.
“Affiliated Lenders”: the Borrower, its Subsidiaries and their respective Affiliates.
“Aggregate Exposure”: with respect to any Lender at any time, an amount equal to (a) until the initial funding thereof on the Closing Date, the aggregate amount of such Lender’s Commitments at such time, (b) thereafter, the sum of (i) the aggregate then unpaid principal amount of such Lender’s Term Loans and (ii) the amount of such Lender’s Revolving Commitment then in effect or, if the Revolving Commitments have been terminated, the amount of such Lender’s Revolving Extensions of Credit then outstanding.
“Aggregate Exposure Percentage”: with respect to any Lender at any time, the ratio (expressed as a percentage) of (a) such Lender’s Aggregate Exposure at such time to (b) the Aggregate Exposure of all Lenders at such time.
“Agreement”: as defined in the preamble to this Agreement.
“Agreement Currency”: as defined in Section 11.22.
3
“All-In Yield”: as to any Indebtedness, the yield thereof, whether in the form of interest rate, margin, original issue discount, upfront fees or Term Benchmark or Base Rate “floor”; provided that original issue discount and upfront fees shall be equated to interest based on assumed four-year life to maturity (or, if less, the stated life to maturity at the time of incurrence of the applicable Indebtedness); provided, further, that “All-In Yield” shall not include customary arrangement or commitment fees payable to any of the Other Representatives (or their respective affiliates) in connection with the Loans or to one or more arrangers (or their respective affiliates) in connection with any Incremental Loans (and any fee payable to any Lender in lieu of any portion of any such fee payable to any such arranger or affiliate thereof).
“Anti-Corruption Laws”: all laws, rules, and regulations of any jurisdiction applicable to the Borrower or its Subsidiaries from time to time concerning or relating to bribery or corruption.
“Applicable Administrative Agent”: depending on context (a) with respect to the Term Loans and Term Commitments, the Term Administrative Agent, (b) in respect of the Revolving Commitments and each extension of credit thereunder, the Revolving Administrative Agent shall act as Administrative Agent for the Revolving Lenders and be the relevant Administrative Agent for all matters related to the Revolving Facility, (c) for all other matters and wherever not specified to be in respect of any particular Facility, except as the context may otherwise require, the Administrative Agent.
“Applicable Margin”: for any day (a) with respect to Revolving Loans and Swingline
Loans, the rate per annum by reference to the grid below which corresponds to the Consolidated Senior Secured Net Leverage Ratio as of the relevant date of determination below the heading “Revolving Loans”, (b) with respect to
Initial Term Loans the rate per annum for Term Benchmark Loans shall be
2.251.625% and the Applicable Margin for Base Rate Loans shall be 1.250.625% and (c) with respect to any Incremental Term Loans, the rate per
annum set forth in the applicable Incremental Commitment Agreement with respect thereto.
| Category |
Consolidated Senior Secured Net Leverage Ratio |
Revolving Loans | ||||||||||||
| Term Benchmark Loans |
Daily RFR Loans |
Base Rate Loans |
||||||||||||
| 1 | 2.25 | % | 2.25 | % | 1.25 | % | ||||||||
| 2 | 2.00 | % | 2.00 | % | 1.00 | % | ||||||||
| 3 | 1.75 | % | 1.75 | % | 0.75 | % | ||||||||
| 4 | Less than 2.25:1.00 and greater than or equal to 1.50:1.00 | 1.50 | % | 1.50 | % | 0.50 | % | |||||||
| 5 | Less than 1.50:1.00 | 1.25 | % | 1.25 | % | 0.25 | % | |||||||
4
Notwithstanding the foregoing, until the date the Borrower shall have delivered the financial statements and certificates required by Section 7.1(a)(ii) and Section 7.2(a), respectively, for the period ended March 31, 2026, the Consolidated Senior Secured Net Leverage Ratio shall be deemed to be in Category 5 for purposes of determining the Applicable Margin. In addition, (a) at any time during which the Borrower has failed to deliver the financial statements and certificates required by Sections 7.1(a)(i) or 7.1(a)(ii) and Section 7.2(a), respectively, or (b) at any time after the occurrence and during the continuance of an Event of Default, the Consolidated Senior Secured Net Leverage Ratio shall be deemed to be in Category 1 for purposes of determining the Applicable Margin.
“Applicable Period”: as defined in Section 4.6(c).
“Applicable SOFR Adjustment”:
for any Interest Period, 0.10%.
“Application”: an application, in a form as the applicable Issuing Lender may reasonably specify from time to time to request such Issuing Lender issue a Letter of Credit.
“Approved Currency”: each of Dollars, Euros, Canadian Dollars and Pesos.
“Approved Fund”: (a) a CLO and (b) with respect to any Lender that is a fund which invests in commercial loans, any other fund that invests in commercial loans and is managed or advised by the same investment advisor as such Lender or by an Affiliate of such investment advisor.
“Asset Sale”: any Disposition of Property or series of related Dispositions of Property (including any issuance or sale of Capital Stock of any Restricted Subsidiary of the Borrower, but excluding any Disposition permitted by Section 8.5 (other than any Dispositions permitted pursuant to Section 8.5(s) thereof) that yields gross proceeds to any Group Member (valued at the initial principal amount thereof in the case of non-cash proceeds consisting of notes or other debt securities and valued at fair market value in the case of other non-cash proceeds) in excess of $5,000,000.
“Asset Swap”: a concurrent purchase and sale or exchange of Property between the Borrower or any of its Restricted Subsidiaries and another Person; provided that (i) the Borrower or such Restricted Subsidiary, as the case may be, receives consideration at least equal to the fair market value (such fair market value to be determined on the date of the contract agreeing to such transaction) as determined in good faith by the Borrower and (ii) such Property is useful to the business of the Borrower or such Restricted Subsidiary.
“Assignee”: as defined in Section 11.6(b)(i).
“Assignment and Assumption”: an Assignment and Assumption, substantially in the form of Exhibit E-1.
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“Available Amount”: at any time, an amount (if a positive number) equal to (without duplication) (a) 50% of Consolidated Net Income of the Borrower and its Restricted Subsidiaries for the period (taken as one accounting period) commencing on July 1, 2019 to the end of the most recently ended fiscal quarter for which financial statements have been delivered to the extent not otherwise applied; plus (b) 100% of the aggregate Net Cash Proceeds received by the Borrower from the sale of Capital Stock (excluding Disqualified Capital Stock) of the Borrower or from any capital contributions to the Borrower made in cash or Cash Equivalents (excluding Disqualified Capital Stock) to the extent such Net Cash Proceeds have not been otherwise applied to build the Available Amount or any other basket for the incurrence of Indebtedness or the making of any Investment or Restricted Payment; plus (c) 100% of the aggregate Net Cash Proceeds received by the Borrower from third-party Indebtedness and Disqualified Capital Stock of the Borrower and its Restricted Subsidiaries, in each case, issued after the Closing Date, which have been exchanged or converted into Capital Stock (excluding Disqualified Capital Stock) of the Borrower to the extent such Net Cash Proceeds have not been otherwise applied to build the Available Amount or any other basket for the incurrence of Indebtedness or the making of any Investment or Restricted Payment; plus (d) 100% of the aggregate Net Cash Proceeds and the fair market value of marketable securities or other property received by the Borrower and its Restricted Subsidiaries since the Closing Date from Dispositions of Investments made using the Available Amount; plus (e) 100% of the returns, profits, distributions and similar amounts received in cash or Cash Equivalents by the Borrower and its Restricted Subsidiaries on Investments made using the Available Amount (including Investments in Unrestricted Subsidiaries); plus (f) 100% of the Investments of the Borrower and its Restricted Subsidiaries made using the Available Amount in any Unrestricted Subsidiary that has been re-designated as a Restricted Subsidiary or that has been merged or consolidated with or into the Borrower or any of its Restricted Subsidiaries (up to the fair market value of the Investments of the Borrower and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time of such re-designation or merger or consolidation), in each case, after the Closing Date; plus (g) Declined Amounts; minus (h) without duplication, an amount equal to the sum of (i) redemptions, repurchases, defeasances or other prepayments of Junior Debt pursuant to Section 8.8(a)(i), (ii) Restricted Payments made pursuant to Section 8.6(e)(i) and (iii) Investments made pursuant to Section 8.7(bb)(i)(z), in each case, after the Closing Date and prior to such time or contemporaneously therewith.
“Available Revolving Commitment”: as to any Revolving Lender at any time, an amount equal to the excess, if any, of (a) such Lender’s Revolving Commitment then in effect over (b) such Lender’s Revolving Extensions of Credit then outstanding; provided, that, in calculating any Lender’s Revolving Extensions of Credit for the purpose of determining such Lender’s Available Revolving Commitment pursuant to Section 3.5, the aggregate principal amount of Swingline Loans then outstanding shall be deemed to be zero.
“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark for any Currency, as applicable, if such Benchmark for such Currency is a term rate, any tenor for such Benchmark (or component thereof) that is or may be used for determining the length of an interest period pursuant to this Agreement as of such date and not including, for the avoidance of doubt, any tenor of such Benchmark that is then-removed from the definition of “Interest Period” pursuant to clause (f) of Section 4.7.
“Backstop L/C”: as defined in Section 3.7(a).
“Bail-In Action”: the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
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“Bail-In Legislation”: (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“Base Rate”: for any day, a fluctuating rate per annum equal to the highest of (a) the Federal
Funds Effective Rate in effect for such day plus 0.50%, (b) the Prime Rate in effect on such day and
(c)
Adjustedthe
Term SOFR Rate for a one-month Interest Period in effect on
such day (or if such day is not a Business Day, the immediately preceding Business Day), plus 1.00%. Any change in such rate due to a change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted Term SOFR Rate shall be effective from and including the effective date of such change in the Prime Rate, the
Federal Funds Effective Rate or the Adjusted Term SOFR Rate, as the case may be.
“Base Rate Loans”: Loans the rate of interest applicable to which is based upon the Base Rate.
“Benchmark” : initially, with respect to Obligations, interest, fees, commissions, or other amounts denominated in, or calculated with respect to, (a) Dollars, SOFR and Term SOFR, (b) Euros, the EURIBOR Rate, (c) Canadian Dollars, the Term CORRA Reference Rate or (d) Pesos, the Daily Simple RFR; provided that if a Benchmark Transition Event has occurred with respect to the then-current Benchmark, then “Benchmark ” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 4.7.
“Benchmark Replacement” means the sum of:
(a: with respect to any Benchmark Transition Event, the first applicable alternative set forth in the order below that can be determined by the
Applicable Administrative Agent for the applicable Benchmark Replacement Date: (1) where the Benchmark is Term SOFR, Daily Simple SOFR, (2) where the Benchmark is EURIBOR Rate, the sum of:
(A) Daily Simple RFR for Euros
(€STR) and
(B) the related Benchmark Replacement Adjustment, (3) where the Benchmark is the Term CORRA Reference Rate, the sum of: (A) the Daily Simple RFR for Canadian Dollars (CORRA) and (B) the related Benchmark Replacement Adjustment and
(4) the sum of (A) the alternate benchmark rate (which may include Term SOFR) that has been selected by the
Applicable Administrative Agent and the
Borrower, giving due consideration to
(ix
) any selection or recommendation of a replacement benchmark rate or the mechanism for
determining such a rate by the Relevant Governmental Body or (iiy) any evolving or then-prevailing market convention for determining a benchmark rate of interest
as a replacement to LIBO Rate for U.S. dollar-denominatedthe then-current Benchmark for syndicated credit facilities denominated in the applicable Currency at such time and
(bB
) the related Benchmark Replacement Adjustment; provided, that, if the Benchmark Replacement as so determined pursuant to the foregoing would be less than
zerothe
Floor, the Benchmark Replacement will be deemed to be zerothe Floor for the purposes of this
Agreement and the other Loan
Documents; and provided further, that any Benchmark Replacement shall be administratively feasible as determined by
the Applicable Administrative Agent in its sole discretion.
7
“Benchmark Replacement Adjustment”
means,: with respect to any replacement of
LIBO
Ratethe then-current Benchmark with an
Unadjusted Benchmark Replacement for each applicable Interest Period, the spread adjustment, or method
for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the
Applicable Administrative Agent and the
Borrower, giving due consideration to
(iA
) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of LIBO
Ratesuch Benchmark with the applicable
Unadjusted Benchmark Replacement by the Relevant Governmental Body or (iiB) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or
determining such spread adjustment, for the replacement of LIBO Ratesuch Benchmark with the applicable Unadjusted Benchmark Replacement for U.S. dollar-denominated syndicated credit facilities
denominated in the applicable Currency at such time.
“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition
of “Base Rate,” the definition of “Interest Period,” timing
and frequency of determining rates and making payments of interest and other administrative matters) that the Administrative Agent decides may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the
administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the
Administrative Agent determines that no market practice for the administration of the Benchmark Replacement exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the
administration of this Agreement).
“Benchmark Replacement Date”: the
earlier a date and time determined by the Applicable
Administrative Agent, which date shall be no later than the earliest to occur of the following events with respect to LIBO Ratethe then-current Benchmark for any Currency:
(1) in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (aA
) the date of the public statement or publication of information referenced therein and (bB) the date on which the administrator of LIBO
Ratesuch Benchmark (or the published component used in the
calculation thereof) permanently or indefinitely ceases to provide LIBO Ratesuch Benchmark (or such component thereof) or, if such Benchmark is a term rate or is based on a term rate, all Available Tenors of such
Benchmark (or such component thereof); or
(2) in the case of clause (3) of the definition of “Benchmark Transition Event,” the date determined by the Applicable Administrative Agent, which date shall promptly follow the date of the public statement or publication of information referenced therein.
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For the avoidance of doubt, if such Benchmark is a term rate or is based on a term rate, the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Event”: the occurrence of one or more of the following events with respect to LIBO
Ratethe then-current Benchmark for any Currency:
(1) a public statement or publication of information by or on behalf of the administrator of LIBO
Ratesuch Benchmark (or the published component used in the
calculation thereof) announcing that such administrator has ceased or will cease to provide LIBO Ratesuch Benchmark (or such component thereof) or, if such Benchmark is a term rate or is based on a
term rate, all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide
LIBO
Rateany Available Tenor of such Benchmark (or such component
thereof);
(2) a public statement or publication of information by thean
Official Body having jurisdiction over the Applicable Administrative Agent, the regulatory supervisor for the administrator of LIBO Rate, the
U.S.such Benchmark (or the published component used in the
calculation thereof), the Federal Reserve SystemBoard, the Federal Reserve Bank of New York, the central bank for the Currency applicable to such Benchmark, an insolvency
official with jurisdiction over the administrator for LIBO Ratesuch Benchmark (or such component), a resolution authority with jurisdiction over the administrator for LIBO
Ratesuch Benchmark (or such component) or a
court or an entity with similar insolvency or resolution authority over the administrator for LIBO
Ratesuch Benchmark (or such component), which
states that the administrator of LIBO
Ratesuch Benchmark (or such component) has
ceased or will cease to provide LIBO
Ratesuch Benchmark (or such component thereof) or, if such
Benchmark is a term rate or is based on a term rate, all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor
administrator that will continue to provide LIBO Ratesuch Benchmark (or such component thereof) or, if such Benchmark is a term rate or is based on a term rate, any Available Tenor of such
Benchmark (or such component thereof); or
(3) a public
statement or publication of information by the regulatory supervisor for the administrator of LIBO
Ratesuch Benchmark (or the published component used in the
calculation thereof) or an Official Body having jurisdiction over the Applicable Administrative Agent announcing that LIBO Rate is no longer
representative.
such “Benchmark Transition Start
Date”: (a)
in the case of a Benchmark Transition Event, the earlier of (i) the applicable Benchmark Replacement Date and
(ii)(or such component thereof) or,
if such Benchmark
Transition Event is a public statement or publication of information of a prospective event, the 90th day prior to the expected date of such event as of such public statement
or publication of information (or if the expected date of such prospective event is fewer than 90 days after such statement or publication, the date
9
of such statement or publication) and
(b)
in the
case of an Early Opt-in Election, the date specified by the Administrative Agent or the Required Lenders, as applicable, by notice to the Borrower, the Administrative Agent (in the case of such notice by the Required Lenders) and the
Lenders.is a term rate or is
based on a term rate, all Available Tenors of such Benchmark (or such component thereof) are not, or as of a specified future date will not be, representative.
For the avoidance of doubt, if such Benchmark is a term rate or is based on a term rate, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Unavailability Period”: if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to LIBO Rate and solely to the extent that LIBO Rate has not been replaced with a
Benchmark Replacement, the period (if
any) (x) beginning at the time that
sucha
Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced LIBO Ratethe then-current Benchmark for any given Currency for all purposes hereunder and under any Loan Document in accordance with Section 4.7 and (y) ending at the time that a Benchmark Replacement
has replaced LIBO
Ratethe then-current Benchmark for such Currency
for all purposes hereunder pursuant
toand under any Loan Document in accordance with
Section 4.7.
“Beneficial Ownership Certificate”: a certification regarding beneficial ownership required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation”: 31 C.F.R. § 1010.230.
“Benefit Plan”: 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”.
“Benefited Lender”: as defined in Section 11.7(a).
“Blocked Person”: as defined in Section 5.22(b).
“Board”: the Board of Governors of the Federal Reserve System of the United States (or any successor).
“Borrower”: as defined in the preamble to this Agreement.
“Borrower Historical Financial Statements”: as defined in Section 5.1(a).
“Borrowing Date”: any Business Day specified by the Borrower as a date on which the Borrower requests the relevant Lenders to make Loans hereunder.
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“Business”: as defined in Section 5.17(b).
“Business Day”: any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed; provided, however, that (i) when used in connection with Term Benchmark Loans denominated in Dollars, the term “Business Day” shall mean any such day that is also a U.S. Government Securities Business Day, (ii) when used in connection with a Term Benchmark Loans denominated in Euros, such day shall also be a TARGET Day, (iii) when used in connection with a Loan denominated in Canadian Dollars, the term “Business Day” shall also exclude any day on which banks are closed for general business in the provinces of British Columbia and Ontario and (iv) when used in connection with a Loan denominated in Pesos, any day on which banks are open for business in Mexico.
“Canadian Dollars” and “CAD $”: the lawful money of Canada.
“Capital Expenditures”: for any period, without duplication, with respect to any Person, (a) any expenditure or commitment to expend money for any purchase or other acquisition of any asset, including capitalized leasehold improvements, which would be classified as a fixed or capital asset on a consolidated balance sheet of such Person prepared in accordance with GAAP and (b) Capital Lease Obligations; provided that, in any event, “Capital Expenditures” shall exclude any Permitted Acquisition and any other Investment permitted hereunder.
“Capital Lease Obligations”: as to any Person, the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as finance leases in accordance with Accounting Standard Codification 842, “Leases”.
“Capital Stock”: 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, but excluding Indebtedness convertible or exchangeable into any such capital stock to the extent not yet converted into capital stock.
“Cash Collateral”: as defined in Section 3.7(a).
“Cash Collateralize”: as defined in Section 3.7(a).
“Cash Equivalents”: (a) marketable direct obligations issued by, or unconditionally guaranteed by, the United States government or issued by any agency thereof and backed by the full faith and credit of the United States, in each case maturing within one year from the date of acquisition; (b) certificates of deposit, time deposits, eurodollar time deposits or overnight bank deposits having maturities of six months or less from the date of acquisition issued by any Lender or by any commercial bank organized under the laws of the United States or any state thereof having combined capital and surplus of not less than $500,000,000; provided, however, that time deposits (including eurodollar time deposits), certificates of deposit (including eurodollar certificates of deposit) and bankers’ acceptances in an aggregate amount not to exceed $2,000,000
11
may be maintained at any commercial bank of recognized standing organized under the laws of the United States (or any State or territory thereof) that does not satisfy the capital and surplus requirements and rating requirements set forth in this clause (b); (c) commercial paper of an issuer rated at least A-2 by S&P or P-2 by Moody’s or carrying an equivalent rating by a nationally recognized rating agency, if both of the two named rating agencies cease publishing ratings of commercial paper issuers generally, and maturing within six months from the date of acquisition; (d) repurchase obligations of any Lender or of any commercial bank satisfying the requirements of clause (b) of this definition, having a term of not more than 30 days, with respect to securities issued or fully guaranteed or insured by the United States government; (e) securities with maturities of one year or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States, by any political subdivision or taxing authority of any such state, commonwealth or territory or by any foreign government, the securities of which state, commonwealth, territory, political subdivision, taxing authority or foreign government (as the case may be) are rated at least AA by S&P or AA by Moody’s; (f) securities with maturities of six months or less from the date of acquisition backed by standby letters of credit issued by any Lender or any commercial bank satisfying the requirements of clause (b) of this definition; or (g) shares of money market mutual or similar funds which invest exclusively in assets satisfying the requirements of clauses (a) through (f) of this definition or money market funds that (i) comply with the criteria set forth in SEC Rule 2a-7 under the Investment Company Act of 1940, as amended, (ii) are rated AAA by S&P and Aaa by Moody’s and (iii) have portfolio assets of at least $5,000,000,000. In the case of Investments by any Foreign Subsidiary that is a Restricted Subsidiary or Investments made in a country outside the U.S., Cash Equivalents shall also include investments of the type and maturity described in clauses (a) through (g) above of foreign obligors, which Investments or obligors (or the parents of such obligors) have ratings described in such clauses or equivalent ratings from comparable foreign rating agencies.
“Change of Control”: if any Person, entity, or “group” (within the meaning of Section 13(d) or 14(d) of the Securities Exchange Act) shall at any time have acquired direct or indirect beneficial ownership of a percentage of the voting power of the outstanding Capital Stock of the Borrower (which is at the time entitled to vote in the election of the Board of Directors of the Borrower) that exceeds 35% thereof. For purposes of this definition, (x) “beneficial ownership” shall be as defined in Rules 13(d)-3 and 13(d)-5 under the Securities Exchange Act and (y) the phrase Person or “group” is within the meaning of Section 13(d) or 14(d) of the Securities Exchange Act, but excluding any Permitted Investors and any employee benefit plan or Benefit Plan (including the ESOP) of such Person or “group” and its subsidiaries and any Person acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan.
“CLO”: any entity (whether a corporation, partnership, trust or otherwise) that is engaged in making, purchasing, holding or otherwise investing in bank loans and similar extensions of credit in the ordinary course of its business and is administered or managed by a Lender or an affiliate of such Lender.
“Closing Date”: the first date on which the conditions precedents set forth in Section 6.1 have been satisfied (or waived) and the initial funding hereunder shall have occurred, which date is July 31, 2019.
“Code”: the Internal Revenue Code of 1986, as amended from time to time.
12
“Collateral”: all property of the Loan Parties, now owned or hereafter acquired, upon which a Lien is purported to be created by any Security Document, except to the extent constituting Excluded Collateral (as defined in the Guarantee and Collateral Agreement).
“Commitment”: as to any Lender, the Revolving Commitment of such Lender.
“Commitment Fee Rate”: the applicable rate per annum by reference to the following which corresponds to the Consolidated Senior Secured Net Leverage Ratio as of the relevant date of determination:
| Category |
Consolidated Senior Secured Net Leverage Ratio |
Commitment Fee Rate | ||
| 1 | 0.25% | |||
| 2 | 0.20% | |||
| 3 | Less than 3.00:1.00 and greater than or equal to 2.25:1.00 | 0.175% | ||
| 0.15% | ||||
| 5 | Less than 1.50:1.00 | 0.15% |
Notwithstanding the foregoing, until the date the Borrower shall have delivered the financial statements and certificates required by Section 7.1(a)(ii) and Section 7.2(a), respectively, for the period ended March 31, 2026, the Consolidated Senior Secured Net Leverage Ratio shall be deemed to be in Category 5 for purposes of determining the Commitment Fee Rate. In addition, (a) at any time during which the Borrower has failed to deliver the financial statements and certificates required by Sections 7.1(a)(i) or 7.1(a)(ii) and Section 7.2(a), respectively, or (b) at any time after the occurrence and during the continuance of an Event of Default, the Consolidated Senior Secured Net Leverage Ratio shall be deemed to be in Category 1 for purposes of determining the Commitment Fee Rate.
“Commonly Controlled Entity”: any trade or business, whether or not incorporated, that is under common control with the Borrower within the meaning of Section 4001 of ERISA or (solely for purposes of Section 302 of ERISA and Section 412 of the Code) is part of a group that includes the Borrower and that is treated as a single employer under Section 414 of the Code.
“Compliance Certificate”: a certificate duly executed by a Responsible Officer on behalf of the Borrower substantially in the form of Exhibit B.
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“Conforming Changes”: means, with respect to the Term Benchmark and Daily Simple RFR or any Benchmark Replacement in relation thereto, any technical, administrative or operational changes (including changes to the definition of “Base Rate,” the definition of “Business Day,” the definition of “Interest Period,” the definition of “U.S. Government Securities Business Day,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Applicable Administrative Agent decides may be appropriate to reflect the adoption and implementation of the Term Benchmark or Daily Simple RFR or any Benchmark Replacement and/or to permit the administration thereof by the Applicable Administrative Agent in a manner substantially consistent with market practice (or, if the Applicable Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Applicable Administrative Agent determines that no market practice for the administration of the Term Benchmark or Daily Simple RFR or a Benchmark Replacement exists, in such other manner of administration as the Applicable Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
“Consolidated Coverage Ratio”: as of any date of determination, the ratio of (a) the aggregate amount of Consolidated EBITDA for the period of four consecutive fiscal quarters ended on the most recent Test Date to (b) Consolidated Interest Expense for such four fiscal quarters.
“Consolidated Current Assets”: at any date, all amounts (other than cash and Cash Equivalents) that would be set forth opposite the caption “total current assets” (or any like caption) on the most recent consolidated balance sheet of the Borrower and its Restricted Subsidiaries in accordance with GAAP.
“Consolidated Current Liabilities”: at any date, all amounts that would be set forth opposite the caption “total current liabilities” (or any like caption) on the most recent consolidated balance sheet of the Borrower and its Restricted Subsidiaries in accordance with GAAP, but excluding (a) the current portion of Consolidated Total Debt and (b) all Indebtedness consisting of Revolving Loans or Swingline Loans.
“Consolidated EBITDA”: for any period:
(a) Consolidated Net Income for such period plus,
(b) without duplication and to the extent reflected as a charge in arriving at such Consolidated Net Income for such period, the sum of the following amounts for such period:
(i) the aggregate amount of all provisions for all taxes (whether or not paid, estimated or accrued) based upon the income and profits of the Borrower or a Restricted Subsidiary or alternative taxes imposed as reflected in the provision for income taxes in the Borrower’s consolidated financial statements,
14
(ii) interest expense, amortization or write-off of debt discount and debt issuance costs, and commissions, discounts and other fees and charges associated with Indebtedness (including the Loans),
(iii) depreciation and amortization expense,
(iv) amortization of intangibles (including goodwill) and organization costs,
(v) any extraordinary, unusual or non-recurring charges, expenses or losses (whether cash or non-cash) (including such expenses in connection with actual or prospective litigation, legal settlements, fines, judgments or orders),
(vi) (A) ESOP Compensation and (B) non-cash compensation expenses from stock, options to purchase stock and stock appreciation rights issued to the management of the Borrower,
(vii) any other non-cash charges, non-cash expenses or non-cash losses of the Borrower or any of its Restricted Subsidiaries for such period (including deferred rent but excluding any such charge, expense or loss incurred in the ordinary course of business that constitutes an accrual of or a reserve for cash charges for any future period); provided, however, that cash payments made in such period or in any future period in respect of such non-cash charges, expenses or losses (excluding any such charge, expense or loss incurred in the ordinary course of business that constitutes an accrual of or a reserve for cash charges for any future period) shall be subtracted from Consolidated Net Income in calculating Consolidated EBITDA in the period when such payments are made,
(viii) any impairment charges, write-off, depreciation or amortization of intangibles arising pursuant to Accounting Standards Codification Topic 805, “Business Combinations” or Topic 350, “Intangibles-Goodwill and Other” and any other non-cash charges resulting from purchase accounting,
(ix) proceeds of business interruption insurance in an amount representing the earnings for the applicable period that such proceeds are intended to replace (whether or not received so long as such Person in good faith expects to receive the same within the next four (4) fiscal quarters (it being understood that to the extent not actually received within such fiscal quarters, such proceeds shall be deducted in calculating Consolidated EBITDA for such fiscal quarters)),
(x) any earn-out obligation and contingent consideration obligations (including adjustments thereof and purchase price adjustments) incurred in connection with any Permitted Acquisition or any other Investment made in compliance with Section 8.7 or any Investment consummated prior to the Closing Date, which is paid or accrued during such period,
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(xi) to the extent actually reimbursed or reimbursable by third parties pursuant to indemnification or reimbursement provisions or similar agreements or insurance, fees, costs, expenses or reserves incurred to the extent covered by indemnification provisions in any agreement in connection with any sale of Capital Stock, Permitted Acquisition, Investment, Restricted Payment, Asset Sale, or incurrences, repayments or amendments of Indebtedness, in each case, including any such transaction consummated prior to the Closing Date and whether or not received so long as such Person in good faith expects to receive the same within the next four (4) fiscal quarters (it being understood that to the extent not actually received within such fiscal quarters, such proceeds shall be deducted in calculating Consolidated EBITDA for such fiscal quarters),
(xii) pro forma cost savings, operating expense reductions, operating improvements and synergies related to, and net of the amount of actual benefits realized during such period, from the Acquisition, Permitted Acquisitions or other permitted Investments, restructurings, cost savings initiatives or other initiatives that are reasonably identifiable, factually supportable and projected by the Borrower in good faith to result from actions that have been taken, committed to be taken or are expected to be taken (in the good faith determination of the Borrower), in each case, within eighteen (18) months after such event; provided that the aggregate amount of addbacks made pursuant to this clause (xii) shall not exceed 25% of Consolidated EBITDA for such period (calculated prior to giving effect to any adjustments pursuant to this clause (xii)),
(xiii) any reduction in revenue resulting from the purchase accounting effects of adjustments to deferred revenue in component amounts required or permitted by GAAP and related authoritative pronouncements (including the effects of such adjustments pushed down to the Borrower and its Restricted Subsidiaries), as a result of any acquisition consummated prior to the Closing Date or any Permitted Acquisition,
(xiv) any loss realized upon the sale or other disposition of any asset (including pursuant to any sale/leaseback transaction) that is not Disposed of in the ordinary course of business and any loss realized upon the sale or other disposition of any Capital Stock of any Person,
(xv) any unrealized losses in respect of Hedge Agreements,
(xvi) any unrealized foreign currency translation losses in respect of transactions or balances denominated in a currency other than the functional currency of such Person,
(xvii) any proportional share of unconsolidated Affiliates’ interest, taxes, depreciation and amortization,
(xviii) cash receipts not included in Consolidated EBITDA in any period solely to the extent that the corresponding non-cash gains relating to such receipts were deducted in the calculation of Consolidated EBITDA pursuant to clause (b)(vii) above for any previous period and not added back,
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(xix) any costs, fees and expenses associated with the cost reduction, operational restructuring and business improvement efforts of any consulting firm engaged by the Borrower or its Restricted Subsidiaries to perform such service;
(xx) the amount of any restructuring charges or reserve (including those relating to severance, relocation costs and one-time compensation charges), any charges, costs, fees and expenses realized upon the termination or cancellation of leases, software licenses or other contracts in connection with the operational restructuring and business improvement efforts of the Borrower and its Restricted Subsidiaries; and
(xxi) Transaction Costs, and any other costs, fees and expenses incurred in connection with and charges related to any Permitted Acquisition, Investments, issuances or Incurrence of Indebtedness, Dispositions, issuances of Capital Stock or refinancing transactions and modifications of instruments of Indebtedness, in each case, whether or not consummated; minus
(c) to the extent included in arriving at such Consolidated Net Income for such period, the sum of the following amounts for such period:
(i) interest income,
(ii) any extraordinary, unusual or non-recurring income or gains whether or not included as a separate item in the statement of Consolidated Net Income,
(iii) all non-cash gains on the sale or disposition of any property other than inventory sold in the ordinary course of business,
(iv) any other non-cash income (excluding any items that represent the reversal of any accrual of, or cash reserve for, anticipated cash charges in any prior period that are described in the parenthetical to clause (b)(vii) above),
(v) any gain realized upon the sale or other disposition of any asset (including pursuant to any sale/leaseback transaction) that is not Disposed of in the ordinary course of business and any gain realized upon the sale or other disposition of any Capital Stock of any Person,
(vi) any unrealized gains in respect of Hedge Agreements, and
(vii) any unrealized foreign currency translation gains in respect of transactions or balances denominated in a currency other than the functional currency of such Person, all as determined on a consolidated basis.
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Notwithstanding anything to the
contrary contained herein, for each of the fiscal quarters set forth below, Consolidated EBITDA shall be deemed to be the amount set forth below opposite such fiscal quarter:
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“Consolidated Interest Expense”: for any period, (a) the total interest expense
(payable in cash during such period) of the Borrower and its Restricted Subsidiaries to the extent deducted in calculating Consolidated Net Income, net of any interest income of the Borrower and its Restricted Subsidiaries, including any such
interest expense consisting of (i) interest expense attributable to Capital Lease Obligations, (ii) [reserved], (iii) interest in respect of Indebtedness of any other Person that has been guaranteed by the Borrower or any Restricted
Subsidiary, (iv) [reserved], (v) the interest portion of any deferred payment obligation and (vi) commissions, discounts and other fees and charges with respect to letters of credit and bankers’ acceptance financing, plus
(b) preferred stock dividends paid in cash in respect of Disqualified Capital Stock of the Borrower held by Persons other than the Borrower or a Restricted Subsidiary, minus (c) to the extent otherwise included in such interest
expense referred to in clause (a) above, amortization or write-off of financing costs, in each case under clauses (a) through (c) as determined on a consolidated basis in accordance with GAAP;
provided, that gross interest expense shall be determined after giving effect to any net payments made or received by the Borrower and its Restricted Subsidiaries with respect to interest rate Hedge Agreements;
provided, further, that, notwithstanding anything to the contrary contained herein, Consolidated Interest Expense
(x) for the fiscal quarter period ending on September 30, 2019, shall be calculated for the fiscal quarter ended on September 30, 2019 and multiplied by 4, (y) for the two fiscal quarter
period ending on December 31, 2019, shall be calculated for the two consecutive fiscal quarters ended on
December 31, 2019 and multiplied by 2, and
(z) for the three fiscal quarter period ending on
March 31, 2020, shall be calculated for the three consecutive fiscal quarters ended on March 31, 2020 and multiplied by 1.333..
“Consolidated Net Income”: for any period, the consolidated net income (or loss) of the Borrower and its Restricted Subsidiaries, prior to the impact of non-controlling interest of partially owned consolidated subsidiaries, determined in accordance with GAAP.
“Consolidated Net Leverage Ratio”: the ratio of (a) Consolidated Total Debt on the last day of any fiscal quarter of the Borrower to (b) Consolidated EBITDA for the period of four consecutive fiscal quarters then ended.
“Consolidated Senior Secured Net Leverage Ratio”: the ratio of (a) Consolidated Total Debt on the last day of any fiscal quarter of the Borrower, except that portion thereof consisting of Indebtedness that is not secured by a Lien on any Property of any Group Member, to (b) Consolidated EBITDA for the period of four consecutive fiscal quarters then ended.
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“Consolidated Total Assets”: as of any date, the total assets of Borrower and its Restricted Subsidiaries, determined in accordance with GAAP, as set forth on the consolidated balance sheet of Borrower as of such date.
“Consolidated Total Debt”: at any date, (a) the aggregate amount shown or required by GAAP to be shown as a liability on a consolidated balance sheet of the Borrower and its Restricted Subsidiaries as of such date (reduced by unamortized debt issuance costs) in respect of (i) all obligations for borrowed money; (ii) all Capital Lease Obligations and purchase money indebtedness; (iii) any obligations evidenced by notes, bonds, debentures or other similar instruments; and (iv) all unreimbursed obligations in respect of drawn letters of credit, bank guarantees or similar instruments (provided that Consolidated Total Debt shall not include Indebtedness in respect of any letter of credit, bank guaranty or similar instrument, except to the extent of any unreimbursed obligations in respect of any drawn letter of credit, bank guaranty or similar instruments) minus (b) Unrestricted Cash; provided, that, solely for purposes of calculating Consolidated Total Debt in connection with determining the Consolidated Senior Secured Net Leverage Ratio for purposes of Sections 4.17 and 8.2(w), Unrestricted Cash that is the proceeds of the Incremental Loans Incurred under Sections 4.17 or Indebtedness Incurred pursuant to Section 8.2(w) shall be excluded. For the avoidance of doubt, in no event shall there be included in Consolidated Total Debt any operating lease liabilities as shown on the balance sheet in accordance with GAAP.
“Consolidated Working Capital”: at any date, (a) Consolidated Current Assets on such date minus (b) Consolidated Current Liabilities on such date.
“Contractual Obligation”: as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
“CORRA” means a rate equal to the Canadian Overnight Repo Rate Average as administered by the CORRA Administrator.
“CORRA Administrator” means the Bank of Canada (or any successor administrator of the Canadian Overnight Repo Rate Average selected by the Revolving Administrative Agent in its reasonable discretion).
“CORRA Administrator’s Website” means the Bank of Canada’s website, at https://www.bankofcanada.ca, or any successor source for the Canadian Overnight Repo Rate Average identified as such by the CORRA Administrator from time to time.
“CORRA Lookback Day”: as defined in the definition of “Daily Simple RFR”.
“Covenant Triggering Event”: as defined in Section 8.1.
“Credit Agreement Refinancing Indebtedness”: (a) Permitted Pari Passu Refinancing Debt, (b) Permitted Junior Refinancing Debt, (c) Permitted Unsecured Refinancing Debt, and (d) Indebtedness Incurred or Refinancing Revolving Commitments obtained pursuant to a Refinancing Amendment, in each case, issued, incurred or otherwise obtained (including by means of the extension or renewal of existing Indebtedness) in exchange for, or to extend, renew,
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replace or refinance, in whole or part, existing Term Loans, Incremental Loans, Refinancing Term Loans, Refinancing Revolving Loans, outstanding Revolving Loans or (in the case of Refinancing Revolving Commitments obtained pursuant to a Refinancing Amendment) Revolving Commitments, Incremental Revolving Commitments or Refinancing Revolving Commitments hereunder (including any successive Credit Agreement Refinancing Indebtedness) (“Refinanced Debt”); provided, that (i) such extending, renewing or refinancing Indebtedness (including, if such Indebtedness includes any Refinancing Revolving Commitments, the unused portion of such Refinancing Revolving Commitments) is in an original aggregate principal amount not greater than the aggregate principal amount of the Refinanced Debt (and, in the case of Refinanced Debt consisting, in whole or in part, of unused Revolving Commitments or Refinancing Revolving Commitments, the amount thereof), plus accrued and unpaid interest capitalized, any premium or other reasonable amount paid, and fees and expenses reasonably incurred in connection therewith, (ii) such Indebtedness has a later maturity and a Weighted Average Life to Maturity equal to or greater than the Refinanced Debt, (iii) such Refinanced Debt shall be repaid, defeased or satisfied and discharged, and all accrued interest, fees and premiums (if any) in connection therewith shall be paid, on the date such Credit Agreement Refinancing Indebtedness is issued, Incurred or obtained; provided, that to the extent that such Refinanced Debt consists, in whole or in part, of Revolving Commitments or Refinancing Revolving Commitments (or Revolving Loans, Refinancing Revolving Loans or Swingline Loans Incurred pursuant to any Revolving Commitments or Refinancing Revolving Commitments), such Revolving Commitments or Refinancing Revolving Commitments, as applicable, shall be terminated, and all accrued fees in connection therewith shall be paid, on the date such Credit Agreement Refinancing Indebtedness is issued, Incurred or obtained, (iv) such Indebtedness will have terms and conditions (other than pricing, premiums, fees, rate floors, and optional prepayment terms) that are not more disadvantageous to the Borrower than (or in the case of any Credit Agreement Refinancing Indebtedness in the form of notes, are on market terms or are not more disadvantageous to the Borrower than), or (taken as a whole) are no more favorable to the investors (or in the case of any Credit Agreement Refinancing Indebtedness in the form of notes, are on market terms or are no more favorable to the investors) providing such Credit Agreement Refinancing Indebtedness than, the Refinanced Debt (except for covenants or other provisions applicable only to the period after the Latest Maturity Date), and (v) such Indebtedness may be incurred in the form of a bridge or other interim credit facility intended to be refinanced with long-term indebtedness (and such bridge or other interim credit facility shall be deemed to satisfy clause (ii) of this definition so long as (x) such credit facility includes customary “rollover” provisions and (y) assuming such bridge or other interim credit facility were to be extended pursuant to such “rollover” provisions, such extended credit facility would comply with clause (ii) above) and in which case, on or prior to the first anniversary of the incurrence of such “bridge” or other interim credit facility, clause (iv) in this definition shall not prohibit the inclusion of customary terms for “bridge” facilities, including customary mandatory prepayment, repurchase or redemption provisions.
“Currency” : any Approved Currency.
“Daily RFR Administrator” means the €STR Administrator, the CORRA Administrator or the F -TIIE Administrator, as applicable.
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“Daily RFR Business Day”: for any Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to, (i) Euro, any day on which real time gross settlement system operated by the Eurosystem, or any successor system, is open for the settlement of payments in Euros, (ii) Canadian Dollars, a day on which banks are open for business in Toronto, Ontario and (iii) Mexican Pesos, a day on which banks are open for business in Mexico City, Mexico.
“Daily RFR Day”: as defined in the definition of “Daily Simple RFR”.
“Daily RFR Loan”: a Loan that bears interest at a rate based on a Daily Simple RFR.
“Daily Simple RFR”: for any day (a “Daily RFR Day”), a rate per annum determined by the Revolving Administrative Agent (rounded upwards, at the Revolving Administrative Agent’s discretion, to the nearest 1/100 of 1%) equal to, for any Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to (a) Euro, €STR for the day (such day, adjusted as applicable as set forth herein, the “€STR Lookback Day”) that is two (2) Daily RFR Business Days prior to (A) if such Daily RFR Day is a Daily RFR Business Day, such Daily RFR Day or (B) if such Daily RFR Day is not a Daily RFR Business Day, the Daily RFR Business Day immediately preceding such Daily RFR Day, in each case, as such €STR is published by the €STR Administrator on the €STR Administrator’s Website, (b) Canadian Dollars, CORRA for the day (such day, adjusted as applicable as set forth herein, the “CORRA Lookback Day”) that is two (2) Daily RFR Business Days prior to (A) if such Daily RFR Day is a Daily RFR Business Day, such Daily RFR Day or (B) if such Daily RFR Day is not a Daily RFR Business Day, the Daily RFR Business Day immediately preceding such Daily RFR Day, in each case, as such CORRA is published by the CORRA Administrator on the CORRA Administrator’s Website and (c) Mexican Pesos, and (b) F -TIIE for the day (such day, adjusted as set forth herein, the “F -TIIE Lookback Day”) that is two (2) Daily RFR Business Days prior to (A) if such Daily RFR Day is a Daily RFR Business Day, such Daily RFR Day or (B) if such Daily RFR Day is not a Daily RFR Business Day, the Daily RFR Business Day immediately preceding such Daily RFR Day, in each case, as such F -TIIE is published by the F -TIIE Administrator on the F -TIIE Administrator’s Website; provided, that if by 5:00 pm (local time for the applicable Daily Simple RFR) on the second (2nd) Daily RFR Business Day immediately following any Daily Simple RFR Lookback Day, the RFR in respect of such Daily Simple RFR Lookback Day has not been published on the applicable RFR Administrator’s Website and a Benchmark Replacement Date with respect to the applicable Daily Simple RFR has not occurred, then the RFR for such Daily Simple RFR Lookback Day will be the RFR as published in respect of the first preceding Daily RFR Business Day for which such RFR was published on the Daily RFR Administrator’s Website; provided, further that any RFR determined pursuant to this sentence shall be utilized for purposes of calculation of Daily Simple RFR for no more than three (3) consecutive Daily RFR Days; provided, further, that if the Daily Simple RFR as determined above would be less than the Floor, such rate shall be deemed to be the Floor for purposes of this Agreement.
The Daily Simple RFR for each outstanding Daily RFR Loan shall be adjusted automatically as of the effective date of any change in the applicable RFR without notice to the Borrower. Determination by the Revolving Administrative Agent of the Daily Simple RFR shall be deemed conclusive absent manifest error.
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“Daily Simple RFR Lookback Days”: collectively the €STR Lookback Day, CORRA Lookback Day and F -TIIE Lookback Day, and each individually, is a Daily Simple RFR Lookback Day.
“Daily Simple SOFR” means, for any day (a “SOFR Rate Day”), the interest rate per annum determined by the Applicable Administrative Agent (rounded upwards, at the Applicable Administrative Agent’s discretion, to the nearest 1/100th of 1%) equal to SOFR for the day (the “SOFR Determination Date”) that is 2 Business Days prior to (i) such SOFR Rate Day if such SOFR Rate Day is a Business Day or (ii) the Business Day immediately preceding such SOFR Rate Day if such SOFR Rate Day is not a Business Day, in each case, as such SOFR is published by the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate) on the website of the Federal Reserve Bank of New York, at http://www.newyorkfed.org, or any successor source identified by the Federal Reserve Bank of New York or its successor administrator for the secured overnight financing rate from time to time. If Daily Simple SOFR as determined above would be less than the Floor, then Daily Simple SOFR shall be deemed to be the Floor. If SOFR for any SOFR Determination Date has not been published or replaced with a Benchmark Replacement by 5:00 p.m. (Pittsburgh, Pennsylvania time) on the second Business Day immediately following such SOFR Determination Date, then SOFR for such SOFR Determination Date will be SOFR for the first Business Day preceding such SOFR Determination Date for which SOFR was published in accordance with the definition of “SOFR” ; provided that SOFR determined pursuant to this sentence shall be used for purposes of calculating Daily Simple SOFR for no more than 3 consecutive SOFR Rate Days. If and when Daily Simple SOFR as determined above changes, any applicable rate of interest based on Daily Simple SOFR will change automatically without notice to the Borrower, effective on the date of any such change.
“Debtor Relief Laws”: the Bankruptcy Code of the United States of America, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect.
“Debtor Relief Plan”: a plan of reorganization or plan of liquidation pursuant to any Debtor Relief Laws.
“Declined Amount”: as defined in Section 4.2(f).
“Declining Lender”: as defined in Section 4.2(f).
“Default”: any of the events specified in Section 9, whether or not any requirement for the giving of notice, the lapse of time, or both, has been satisfied.
“Defaulting Lender”: any Lender, as determined by the Applicable Administrative Agent in its reasonable discretion, that has (a) failed to fund any portion of its Loans or participations in Letters of Credit or Swingline Loans within three Business Days of the date required to be funded by it hereunder (unless such Lender notifies the Applicable Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s good faith
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determination that a condition precedent to funding (specifically identified and including the particular default, if any) has not been satisfied), (b) notified the Borrower, the Applicable Administrative Agent, any Issuing Lender, the Swingline Lender or any Lender in writing that it does not intend to comply with any of its funding obligations under this Agreement or has made a public statement to the effect that it does not intend to comply with its funding obligations under this Agreement (unless such writing or public statement indicates that such position is based on such Lender’s good faith determination that a condition precedent (specifically identified and including the particular default, if any) to funding a Loan or issuing a Letter of Credit, as applicable, under this Agreement cannot be satisfied) or under other agreements generally in which it commits to extend credit, (c) failed, within three Business Days after request by the Applicable Administrative Agent, the Borrower or any Issuing Lender, to confirm that it will comply with the terms of this Agreement relating to its obligations to fund prospective Loans and participations in then outstanding Letters of Credit and Swingline Loans (provided, that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Applicable Administrative Agent or such Issuing Lender and the Borrower), (d) otherwise failed to pay over to the Applicable Administrative Agent or any other Lender any other amount required to be paid by it hereunder within three Business Days of the date when due, unless the subject of a good faith dispute, or (e) (i) become or is insolvent or has a parent company that has become or is insolvent, (ii) become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee or custodian appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment or has a parent company that has become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee or custodian appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment or (iii) become the subject of or has a parent company that has 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 equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender.
“Discharge”: as defined in Section 1.3(d)(ii).
“Disinterested Director”: with respect to any Person and transaction, a member of the board of directors (or equivalent governing body) of such Person who does not have any material direct or indirect financial interest in or with respect to such transaction.
“Disposition”: with respect to any Property, any sale, lease, sale and leaseback, assignment, conveyance, transfer or other disposition thereof. The terms “Dispose” and “Disposed of” shall have correlative meanings.
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“Disqualified Capital Stock”: any Capital Stock which, by its terms (or by the terms of any security or other Capital Stock into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition (a) matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, (b) is redeemable at the option of the holder thereof, in whole or in part, (c) provides for the scheduled payments of dividends in cash, or (d) is or becomes convertible into or exchangeable for Indebtedness or any other Capital Stock that would constitute Disqualified Capital Stock, in each case of clauses (a) through (d) above, prior to the date that is ninety-one (91) days after the later of the Revolving Termination Date and the date final payment is due on the Term Loans. Notwithstanding the preceding sentence, (A) if such Capital Stock is issued pursuant to any plan for the benefit of directors, officers, employees, members of management, managers or consultants or by any such plan to such directors, officers, employees, members of management, managers or consultants, in each case, in the ordinary course of business of the Borrower or any Restricted Subsidiary, such Capital Stock shall not constitute Disqualified Capital Stock solely because it may be required to be repurchased by the issuer thereof in order to satisfy applicable statutory or regulatory obligations, and (B) no Capital Stock held by any future, present or former employee, director, officer, manager, member of management or consultant (or their respective Affiliates or immediate family members) of the Borrower (or any Subsidiary) shall be considered Disqualified Capital Stock because such stock is redeemable or subject to repurchase pursuant to any management equity subscription agreement, stock option, stock appreciation right or other stock award agreement, stock ownership plan, put agreement, stockholder agreement or similar agreement that may be in effect from time to time.
“Disqualified Institution”: on any date, (a) any Person designated by the
Borrower as a “Disqualified Institution” by written notice delivered to the Facilities Administrative
AgentAgents
on or prior to the Closing Date and (b) any other Person that is a competitor of the Borrower or any of its Restricted Subsidiaries, which Person has been designated by the Borrower as a “Disqualified Institution” by
written notice to the Facilities Administrative
AgentAgents
and the Lenders (including by posting such notice to the Platform) not less than three Business Days prior to such date; provided that “Disqualified Institutions” shall exclude any Person that the Borrower has designated
as no longer being a “Disqualified Institution” by written notice delivered to the Facilities
Administrative
AgentAgents
from time to time.
“Documentation Agents”: Morgan Stanley Senior Funding, Inc
BMO Capital Markets Corp., Fifth Third Bank, National Association, BMO Capital Markets Corp. and HSBC Securities (USA)
Inc., Morgan Stanley Senior Funding, Inc., Robert W. Baird & Co. Incorporated, Loop Capital Markets, Oppenheimer & Co. and UBS Securities LLC.
“Dollars” and “$”: denote the lawful currency of the United States of America.
“Dollar Equivalent”: with respect to an amount denominated in Dollars, such amount, and with respect to an amount denominated in any other Approved Currency, the equivalent in Dollars of such amount determined at the Exchange Rate on the applicable Valuation Date.
“Domestic Subsidiary”: any Restricted Subsidiary of the Borrower organized under the laws of any jurisdiction within the United States.
“DQ List”: as defined in Section 11.6(f)(iv).
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“Early Opt-in Election”: the occurrence of:
(1) (i) a determination by the Administrative Agent or
(ii) a notification by the Required Lenders to the Administrative Agent (with a copy to the Borrower) that the Required Lenders have determined that U.S. dollar-denominated syndicated
credit facilities being executed at such time, or that include language similar to that contained in Section 4.7, are being executed or amended, as applicable, to incorporate or adopt a new benchmark interest rate to replace LIBO Rate, and
(2) (i) the election by the Administrative Agent or (ii) the election by the Required Lenders to declare that an Early Opt-in Election has occurred and the
provision, as applicable, by the Administrative Agent of written notice of such election to the Borrower and the Lenders or by the Required Lenders of written notice of such election to the Administrative Agent.
“Earnout Obligation”: an obligation to pay the seller in an acquisition a future payment that is contingent upon the financial performance of the business acquired in such acquisition exceeding a specified benchmark level and that becomes payable when such excess financial performance is achieved.
“EEA Financial Institution”: (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”: any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority”: 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.
“Eligible Assignee”: any Person that meets the requirements to be an assignee under Section 11.6 (subject to such consents, if any, as may be required under Section 11.6). For the avoidance of doubt, a Disqualified Institution shall not be an Eligible Assignee.
“Environmental Laws”: any and all applicable foreign, federal, state, local or municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees or other Requirements of Law (including common law) regulating, relating to or imposing liability concerning protection or preservation of the environment and natural resources, including those relating to the generation, use storage, transportation, disposal, release, or threatened release of, or exposure to, Materials of Environmental Concern.
“Environmental Permits”: any and all permits, licenses, approvals, registrations, exemptions and other authorizations issued by any Governmental Authority under any Environmental Law.
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“ERISA”: the Employee Retirement Income Security Act of 1974, as amended from time to time, the regulations promulgated thereunder and any successor thereto.
“Escrow Debt”: Indebtedness permitted to be incurred hereunder that is incurred in connection with any transaction permitted hereunder for so long as proceeds thereof have been deposited into an escrow account on customary terms to secure such Indebtedness pending the application of such proceeds to finance such transaction.
“ESOP”: the Advanced Drainage Systems, Inc. Employee Stock Ownership Plan and the Advanced Drainage Systems, Inc. Employee Stock Ownership Trust, and any successor Benefit Plan, and related trust, thereto.
“ESOP Compensation”: the non-cash charge portion of the ESOP compensation expense reflected in Borrower’s financial statements.
“€STR ”: a rate equal to the Euro Short Term Rate as administered by the €STR Administrator.
“€STR Administrator”: the European Central Bank (or any successor administrator of the Euro Short Term Rate selected by the Revolving Administrative Agent in its reasonable discretion).
“€STR Administrator’s Website” means the European Central Bank’s website, at http://www.ecb.europa.eu, or any successor source for the Euro Short Term Rate identified as such by the €STR Administrator from time to time.
“€STR Lookback Day”: as defined in the definition of “Daily Simple RFR”.
“EU Bail-In Legislation Schedule”: the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.
“EURIBOR” : as defined in the definition of Term Benchmark.
“EURIBOR Rate”: as defined in the definition of Term Benchmark.
“Euro” or “€”: the single currency of the European Union as constituted by the Treaty on European Union and as referred to in the legislative measures of the European Union for the introduction of, changeover to or operation of the Euro in one or more member states, being in part legislative measures to implement the European and Monetary Union as contemplated in the Treaty on European Union.
“EU Bail-In Legislation Schedule”: the EU Bail-In Legislation Schedule
published by the Loan Market Association (or any successor person), as in effect from time to time.
“Event of Default”: any of the events specified in Section 9; provided, that any requirement for the giving of notice, the lapse of time, or both, has been satisfied.
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“Excess Cash Flow”: for any fiscal year of the Borrower, the excess, if any, of:
(a) the sum, without duplication, of:
(i) Consolidated Net Income for such fiscal year;
(ii) the amount of all non-cash charges (including depreciation and amortization) to the extent deducted in arriving at such Consolidated Net Income (excluding any such non-cash charge to the extent that it represents an accrual or reserve for a potential cash charge in any future fiscal year or amortization of a prepaid cash gain that was paid in a prior fiscal year);
(iii) the amount of the decrease, if any, in Consolidated Working Capital for such fiscal year; and
(iv) the aggregate amount of non-cash losses on the Disposition of Property by the Borrower and its Restricted Subsidiaries during such fiscal year (other than sales of inventory in the ordinary course of business), to the extent deducted in arriving at such Consolidated Net Income; minus
(b) the sum, without duplication, of:
(i) the amount of all non-cash credits included in arriving at such Consolidated Net Income;
(ii) Capital Expenditures made by the Borrower and its Restricted Subsidiaries in cash during such fiscal year (or paid in cash following the end of such fiscal year and prior to the date the mandatory prepayment is required to be made pursuant to Section 4.2(c); provided that any such expenditure included in this clause (b)(ii) pursuant to this parenthetical shall not be deducted in calculating Excess Cash Flow for the fiscal year in which it is made), in each case, except to the extent funded by the incurrence of long-term Indebtedness (other than revolving Indebtedness);
(iii) the aggregate amount of all regularly scheduled principal payments of Funded Debt (including, without limitation, the Term Loans) made by the Borrower and its Restricted Subsidiaries in cash during such fiscal year (other than in respect of any revolving credit facility unless there is an equivalent scheduled permanent reduction in commitments thereunder), in each case, except to the extent funded by the incurrence of long-term Indebtedness;
(iv) the amount of the increase, if any, in Consolidated Working Capital for such fiscal year;
(v) the aggregate amount of non-cash gains on the Disposition of Property by the Borrower and its Restricted Subsidiaries during such fiscal year (other than sales of inventory in the ordinary course of business), to the extent included in arriving at such Consolidated Net Income;
27
(vi) the aggregate amount of consideration paid in cash during such period with respect to a Permitted Acquisition or other Investment in a third party permitted hereunder, in each case to the extent such payments were not and have not been funded with additional long-term Indebtedness (other than revolving Indebtedness); and
(vii) the aggregate amount of Restricted Payments made in cash during such fiscal year pursuant to clauses (b), (c) and (e) of Section 8.6, Investments made in cash during such fiscal year pursuant to clauses (f), (h), (j), (bb) and (cc) of Section 8.7, and repayments of Indebtedness made in cash during such fiscal year pursuant to clause (i) and (ii) of Section 8.8, in each case, except to the extent funded by the incurrence of long-term Indebtedness (other than revolving Indebtedness).
“Exchange Act”: the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Exchange Rate”: the rate at which any currency (the “Original Currency”) may be exchanged into Dollars (the “Exchanged Currency”), as set forth on such date on the relevant Reuters screen at or about 11:00 a.m. (London, England time) on such date. In the event that such rate does not appear on the Reuters screen, the “Exchange Rate” with respect to such Original Currency into such Exchanged Currency shall be determined by reference to such other publicly available service for displaying exchange rates as may be agreed upon by the Applicable Administrative Agent and the Borrower or, in the absence of such agreement, such “Exchange Rate” shall instead be the Applicable Administrative Agent’s spot rate of exchange in the interbank market where its foreign currency exchange operations in respect of such Original Currency are then being conducted, at or about 11:00 a.m. (local time), on such date for the purchase of the Exchanged Currency, with such Original Currency for delivery two Business Days later; provided, that, if at the time of any such determination, no such spot rate can reasonably be quoted, the Applicable Administrative Agent may use any reasonable method as it deems applicable to determine such rate, and such determination shall be conclusive absent manifest error.
“Excluded Indebtedness”: all Indebtedness permitted by Section 8.2 (except the net cash proceeds of any Permitted Pari Passu Refinancing Debt, Permitted Junior Refinancing Debt or other Credit Agreement Refinancing Indebtedness).
“Excluded Subsidiaries”: (a) any Immaterial Subsidiary, (b) any Foreign Subsidiary, (c) any Subsidiary that is not a Wholly Owned Subsidiary of the Borrower; provided that a Subsidiary that ceases to be a Wholly Owned Subsidiary of the Borrower solely as a result of the Capital Stock of such Subsidiary becoming owned by an Affiliate of the Borrower shall not be deemed to be an Excluded Subsidiary pursuant to this clause (c), (d) any Unrestricted Subsidiary, (e) any special purpose vehicle (or similar entity), (f) any captive insurance subsidiary (g) any not-for-profit Subsidiary, (h) any Subsidiary, including any regulated entity that is subject to net worth or net capital or similar capital and surplus restrictions, that is prohibited or restricted by applicable Requirement of Law, accounting policies or by contractual obligation existing on the Closing Date (or, with respect to any Subsidiary acquired by the Borrower or a Restricted Subsidiary after the Closing Date (and so long as such contractual obligation was not incurred in
28
contemplation of such acquisition), on the date such Subsidiary is so acquired) from providing a guaranty pursuant to the Guarantee and Collateral Agreement, or if such guaranty would require governmental (including regulatory) or third party consent, approval, license or authorization (except to the extent that such consent, approval, license or authorization has been obtained) and (i) any other Subsidiary with respect to which the Administrative Agent and the Borrower reasonably agree that the cost or other consequences of providing a guarantee of or granting Liens to secure the Obligations would be excessive in relation to the practical benefit to be afforded thereby.
“Excluded Swap Obligations”: as defined in the Guarantee and Collateral Agreement.
“Excluded Taxes”: as defined in Section 4.10(b).
“Existing Debt Agreements”: each of (i) the Second Amended and Restated Credit Agreement, dated as of June 22, 2017 (as amended from time to time), by and among the Borrower, as borrower, the guarantors from time to time party thereto, the lenders from time to time party thereto, PNC Bank, National Association, as administrative agent for the lenders party thereto, and the other parties thereto (the “Existing Credit Agreement”); (ii) the Second Amended and Restated Private Shelf Agreement, dated as of June 22, 2017, by and among the Borrower, as issuer, the guarantors from time to time party thereto, PGIM, Inc., as a purchaser, and the other purchasers from time to time party thereto and (iii) the First Lien Credit Agreement, dated as of May 27, 2015, among Infiltrator Water Technologies, LLC, as the borrower and Deutsche Bank AG New York Branch, as administrative agent, and the other parties thereto.
“Existing Letter of Credit”: any “Letter of Credit” issued for the account of the Borrower or any of its Subsidiaries under the Existing Debt Agreements prior to the Closing Date and scheduled in Schedule 1.1(c).
“Existing Loans”: as defined in Section 4.18(a).
“Existing Tranche”: as defined in Section 4.18(a).
“Extended Loans”: as defined in Section 4.18(a).
“Extended Tranche”: as defined in Section 4.18(a).
“Extending Lender”: as defined in Section 4.18(b).
“Extending Revolving Lender”: as defined in Section 4.18(b).
“Extending Term Loan Lender”: as defined in Section 4.18(b).
“Extension Amendment”: as defined in Section 4.18(c).
“Extension Date”: as defined in Section 4.18(d).
“Extension Election”: as defined in Section 4.18(b).
29
“Extension Request”: as defined in Section 4.18(a).
“Facility”: any Term Facility or the Revolving Facility, as the context may require, and “Facilities” means all of them, collectively.
“Facilities Administrative Agents”: collectively, the Administrative Agent, the Term Administrative Agent and the Revolving Administrative Agent.
“FATCA”: Sections 1471 through 1474 of the Code, effective as of the Closing Date (and any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations promulgated thereunder or official interpretations thereof and 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 Effective Rate”: for any day, the rate calculated by the Federal Reserve Bank of New York based on such day’s federal funds transactions by depository institutions (as determined in such manner as the Federal Reserve Bank of New York shall set forth on its public website from time to time) and published on the next succeeding Business Day by the Federal Reserve Bank of New York as the federal funds effective rate; provided, that if the Federal Funds Effective Rate for any day is less than zero, the Federal Funds Effective Rate for such day will be deemed to be zero.
“Federal Reserve Bank of New York’s Website”: the website of the Federal Reserve Bank of New York at http://www.newyorkfed.org, or any successor source.
“First Amendment Effective Date”: September 24, 2019.
“First Tier Foreign Subsidiary”: each Foreign Subsidiary with respect to which the Borrower or any of its Domestic Subsidiaries directly owns or controls all of such Foreign Subsidiary’s issued and outstanding Capital Stock.
“Fitch”: Fitch Ratings, Inc. and any affiliate thereof and any successor thereto that is a nationally-recognized rating agency.
“Fixed Amount”: as defined in Section 1.3(c).
“Fixed Incremental Amount”: as defined in the definition of “Incremental Amount.”
“Fixed Restricted Payment Basket Amount”:
$100,000,000200,000,000
in each fiscal year.
30
“Flood Insurance
Laws”: collectively, (i) the National Flood Insurance Act of 1968 as now or hereafter in effect or any successor statute
thereto, (ii) the Flood Disaster Protection Act of 1973 as now or hereafter in
effect or any successor statute thereto, (iii) the National Flood Insurance Reform Act of 1994 as now or hereafter in effect or any successor statute thereto and
(iv) the Flood Insurance Reform Act of 2004 and the Biggert –Waters Flood Insurance Reform Act of 2012, as now or hereafter in effect or any successor statute
thereto, in each case, together with all statutory and regulatory provisions consolidating, amending, replacing, supplementing, implementing or interpreting any of the foregoing, as amended or modified from time to time.
“Floor” : with respect to the Term Facility, 0.00% and with respect to the Revolving Facility, 0.00%.
“Foreign Currency Equivalent”: with respect to an amount denominated in Euros, Canadian Dollars or Pesos, such amount, and with respect to an amount denominated in Dollars, the equivalent in Euros, Canadian Dollars or Pesos of such amount determined at the Exchange Rate on the applicable Valuation Date.
“Foreign Subsidiary”: any Restricted Subsidiary of the Borrower that is not a Domestic Subsidiary or that is a Foreign Subsidiary Holdco.
“Foreign Subsidiary Holdco”: any Domestic Subsidiary that (a) has no material assets other
than equity (or equity and other securities) of one or more (i) Foreign Subsidiaries and
otherthat is a “controlled
foreign
corporation” within
the meaning of Section 957 of the Code or (ii) other Foreign Subsidiary Holdcos, and other incidental assets relating to the ownership interest in any such securities
and (b) has no Guarantee Obligations in respect of any Indebtedness of the Borrower or any Domestic Subsidiary. As of the ClosingFourth Amendment Effective Date, the Foreign Subsidiary Holdcos are ADS
Worldwide, Inc., a Delaware corporation, and ADS International, Inc., a Delaware corporation, ADSI-1, LLC, a Delaware limited liability company, and
ADSI-2, LLC, a Delaware limited liability company.
“Former Properties”: as defined in Section 5.17(d).
“Fourth Amendment”: that certain Fourth Amendment to Credit Agreement, dated as of the Fourth Amendment Effective Date, among the Term Administrative Agent, the Revolving Administrative Agent, the Administrative Agent, the Borrower, the Subsidiary Guarantors, the 2026 Refinancing Revolving Lenders, the Issuing Lenders and the 2026 Refinancing Term Lenders party thereto.
“Fourth Amendment Effective Date”: February 27, 2026.
“F -TIIE”: a rate equal to the Overnight Interbank Equilibrium Rate (Tasa de Interé s Interbancaria de Equilibrio de Fondeo) as administered by the F -TIIE Administrator.
“F -TIIE Administrator”: the Bank of Mexico (or any successor administrator of the F -TIIE selected by the Revolving Administrative Agent in its reasonable discretion).
“F -TIIE Administrator’s Website”: the Bank of Mexico’s website, at https://www.banxico.org.mx, or any successor source for the F -TIIE identified as such by the F -TIIE Administrator from time to time.
31
“F -TIIE Lookback Day”: as defined in the definition of “Daily Simple RFR”.
“Funding Office”: the office of the Applicable Administrative Agent specified in Section 11.2 or such other office as may be specified from time to time by the Applicable Administrative Agent as its funding office by written notice to the Borrower and the Lenders.
“GAAP”: generally accepted accounting principles in the United States as in effect from time to time except that for
purposes of Section 8.1, GAAP shall be determined on the basis of such principles in effect on the Closing Date and consistent with those used in the preparation of the most recent audited financial statements referred to in Section 5.1.
In the event that any Accounting Change shall occur and such change would otherwise result in a change in the method of calculation of financial covenants, standards or terms in this Agreement or if the Borrower notifies the Facilities Administrative
AgentAgents
that the Borrower requests an amendment to any provision hereof to eliminate the effect of any Accounting Change occurring after the Closing Date in GAAP regardless of whether any such notice is given before or after any Accounting
Change or in the application thereof, then the Borrower and the Facilities Administrative AgentAgents
agree to enter into negotiations in order to amend such provisions of this Agreement so as to equitably reflect such Accounting Changes with the desired result that the criteria for evaluating the Borrower’s financial condition
shall be the same after such Accounting Changes as if such Accounting Changes had not been made. Until such time as such an amendment shall have been executed and delivered by the Borrower, the Facilities Administrative
AgentAgents
and the Required Lenders, all financial covenants, standards and terms in this Agreement shall continue to be calculated or construed as if such Accounting Changes had not occurred. “Accounting Changes” refers to
changes in accounting principles required by the promulgation of any rule, regulation, pronouncement or opinion by the Financial Accounting Standards Board of the American Institute of Certified Public Accountants or, if applicable, the SEC. For
purposes of calculations made pursuant to the terms of this Agreement, GAAP will be deemed to treat operating leases and capital leases in a manner consistent with their treatment under generally accepted accounting principles as reflected in the
audited financial statements of the Borrower and its consolidated Subsidiaries for the fiscal year ended March 31, 2019, notwithstanding any modifications or interpretive changes thereto that may have occurred thereafter or may occur hereafter,
unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above and all lease liabilities and right of use assets in each case related to operating leases shall be excluded from all
calculations made under this Agreement.
“Governmental Authority”: any nation or government, any state or local or other political subdivision thereof, any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative functions of or pertaining to government, any securities exchange and any self-regulatory organization (including the National Association of Insurance Commissioners).
“Group Members”: the collective reference to the Borrower and its Restricted Subsidiaries.
“Guarantee and Collateral Agreement”: that certain Guarantee and Collateral Agreement, substantially in the form of Exhibit A, dated as of the Closing Date, by the Borrower and each Subsidiary Guarantor in favor of the Administrative Agent, as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.
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“Guarantee Obligation”: as to any Person (the “guaranteeing person”), any obligation of (a) the guaranteeing person or (b) another Person (including any bank under any letter of credit) to induce the creation of which the guaranteeing person has issued a reimbursement, counterindemnity or similar obligation which (in the case of either clause (a) or clause (b)), guarantees or has the effect of guaranteeing any Indebtedness, leases, dividends or other obligations (the “primary obligations”) of any other third Person (the “primary obligor”) in any manner, whether directly or indirectly, including any such obligation of the guaranteeing person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (1) for the purchase or payment of any such primary obligation or (2) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation, or (iv) otherwise to assure or hold harmless the owner of any such primary obligation against loss in respect thereof; provided, however, that the term Guarantee Obligation shall not include endorsements of instruments for deposit or collection in the ordinary course of business or product warranties in effect on the Closing Date or entered into in connection with any acquisition or disposition of assets permitted under this Agreement (other than such obligations with respect to Indebtedness). The amount of any Guarantee Obligation of any guaranteeing person shall be deemed to be the lower of (a) an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee Obligation is made and (b) the maximum amount for which such guaranteeing person may be liable pursuant to the terms of the instrument embodying such Guarantee Obligation, unless such primary obligation and the maximum amount for which such guaranteeing person may be liable are not stated or determinable, in which case the amount of such Guarantee Obligation shall be such guaranteeing person’s maximum reasonably anticipated liability in respect thereof as determined by the Borrower in good faith.
“Hedge Agreements”: any interest rate protection agreement, commodity price protection agreement or other interest or currency exchange rate or commodity price hedging arrangement.
“Immaterial Subsidiary”: any Restricted Subsidiary that is not a Material Subsidiary; provided that all Immaterial Subsidiaries, in the aggregate, shall not contribute greater than ten percent (10%) of the Borrower’s Consolidated Total Assets as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 7.1.
“Incremental Amount”: at any time, an amount not to exceed:
(a) the greater of (i) $350,000,000 and (ii) 100% of Consolidated EBITDA for the most recently ended period of four consecutive fiscal quarters for which financial statements have been delivered pursuant to Section 7.1; plus
33
(b) the aggregate principal amount of the sum of (i) voluntary prepayments of Term
Loans and Incremental Equivalent Debt and/or permanent reductions of the Revolving Commitments or commitments in respect of any Incremental Equivalent Debt and (ii) the consideration paid in connection with any purchases of any Loans
outstanding hereunder pursuant to Section 4.13(b) or Section 11.6(g) by an Affiliated Lender from time to time, except, in each case, to the extent (x) such prepayments were funded with the
proceeds of long-term Indebtedness (other than revolving credit facilities) or (y) such Term Loans or Incremental Equivalent Debt were incurred pursuant to the Ratio Incremental Amount (together with clause (a) above, the
“Fixed Incremental Amount”, which shall be reduced by previously used amounts of the Fixed Incremental Amount for Incremental Facilities and Incremental Equivalent Debt); plus
(c) an unlimited amount if, after giving effect to the incurrence of any Incremental Facilities or Incremental Equivalent Debt (assuming for this purpose that the Incremental Revolving Commitments being Incurred at the time of such calculation are fully drawn), (i) in the case of Incremental Facilities or Incremental Equivalent Debt secured by a Lien on the Collateral that is pari passu with, or junior to, the Liens securing the Secured Obligations, the Consolidated Senior Secured Net Leverage Ratio is less than or equal to 3.50:1.00, and (ii) in the case of any unsecured Incremental Facilities or unsecured Incremental Equivalent Debt, the Consolidated Net Leverage Ratio is less than or equal to 3.75:1.00 (the amounts described in clauses (i) and (ii) above, the “Ratio Incremental Amount”); provided that for purposes of this clause (c), if the proceeds of the relevant Incremental Facility or Incremental Equivalent Debt will be applied to finance a Limited Condition Acquisition, the Ratio Incremental Amount will be determined in accordance with Section 1.3. It is understood and agreed that if the applicable incurrence test is satisfied on a pro forma basis after giving effect to any Incremental Facility or Incremental Equivalent Debt in lieu thereof, such Incremental Facility or Incremental Equivalent Debt, as applicable, may be incurred under the Ratio Incremental Amount regardless of whether there is capacity under the Fixed Incremental Amount.
“Incremental Commitment Agreement”: an agreement delivered by an Incremental Lender, in form and substance reasonably satisfactory to the Facilities Administrative Agents and accepted by the Borrower, by which an Incremental Lender provides its Incremental Commitment in accordance with the terms of Section 4.17.
“Incremental Commitments”: as defined in Section 4.17(a).
“Incremental Equivalent Debt”: as defined in Section 8.2(w).
“Incremental Facilities”: as defined in Section 4.17(a).
“Incremental Lender”: a Lender, Approved Fund or other Person that provides an Incremental Commitment.
“Incremental Loans”: as defined in Section 4.17(a).
“Incremental Revolving Commitments”: as defined in Section 4.17(a).
“Incremental Revolving Facility”: as defined in Section 4.17(a).
34
“Incremental Revolving Facility Lender”: with respect to any Incremental Revolving Facility, each Revolving Lender providing any portion of such Incremental Revolving Facility.
“Incremental Revolving Loans”: as defined in Section 4.17(a).
“Incremental Term Facility”: as defined in Section 4.17(a).
“Incremental Term Loan Commitments”: as defined in Section 4.17(a).
“Incremental Term Loans”: as defined in Section 4.17(c).
“Incur”: issue, assume, enter into any Guarantee Obligation in respect of, incur or otherwise become liable for; and the terms “Incurs,” “Incurred” and “Incurrence” shall have a correlative meaning; provided, that any Indebtedness or Capital Stock of a Person existing at the time such Person becomes a Restricted Subsidiary of the Borrower (whether by merger, consolidation, acquisition or otherwise) shall be deemed to be Incurred by such Restricted Subsidiary at the time it becomes a Restricted Subsidiary. The accrual of interest or dividends, the accretion of accreted value, the accretion of amortization of original issue discount and the payment of interest or dividends in the form of additional Indebtedness will not be deemed to be an Incurrence of Indebtedness. Any Indebtedness issued at a discount (including Indebtedness on which interest is payable through the issuance of additional Indebtedness) shall be deemed Incurred at the time of original issuance of the Indebtedness at the initial accreted amount thereof.
“Incurrence-Based Amount”: as defined in Section 1.3(c).
“Indebtedness”: of any Person at any date, without duplication, (a) all indebtedness of such Person for borrowed money, (b) all obligations of such Person for the deferred purchase price of property or services (other than trade payables Incurred in the ordinary course of such Person’s business which are not more than ninety (90) days past due and Earnout Obligations), (c) all obligations of such Person evidenced by notes, bonds, debentures or other similar instruments, (d) all indebtedness created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (excluding trade accounts payable incurred in the ordinary course of business), (e) all Capital Lease Obligations of such Person, (f) all obligations of such Person, contingent or otherwise, as an account party or applicant under or in respect of acceptances, letters of credit or similar arrangements, (g) all Guarantee Obligations of such Person in respect of obligations of others of the kind referred to in clauses (a) through (f) above, (h) all obligations of the kind referred to in clauses (a) through (g) above secured by (or for which the holder of such obligation has an existing right, contingent or otherwise, to be secured by) any Lien on property (including accounts and contract rights) owned by such Person, whether or not such Person has assumed or become liable for the payment of such obligation; provided, that the amount of such Indebtedness shall be limited to the lesser of such obligation and the value of the property subject to such Lien if such Person has not assumed or become liable for the payment of such obligation, (i) all obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of Disqualified Capital Stock of such Person, and (j) for the purposes of Sections 8.2 and 9(e) only, all obligations of such Person in respect of Hedge Agreements, but in each case in the above clauses excluding obligations under operating leases, Escrow Debt and
35
obligations under employment contracts entered into in the ordinary course of business. For the avoidance of doubt, lease liabilities with respect to operating leases shall not be considered Indebtedness. The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent 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 the terms of such Indebtedness expressly provide that such Person is not liable therefor.
“Indemnified Liabilities”: as defined in Section 11.5.
“Indemnitee”: as defined in Section 11.5.
“Initial Term Commitment”:
(a) prior to the Fourth Amendment Effective Date, the Term Commitment of each Initial Term Lender on the Closing
Date and
(b) from and after the Fourth Amendment Effective Date, the 2026 Refinancing Term Commitment of each 2026
Refinancing Term Lender on the Fourth Amendment Effective Date. The aggregate amount of the Initial Term Commitments of all Initial Term Lenders as of the Closing Date
iswas
$1,300,000,000. The aggregate amount of the Initial Term Commitments of all Initial Term Lenders as of the Fourth
Amendment Effective Date is $600,000,000.
“Initial Term Facility”: the term loan facility evidenced by the aggregate Initial Term Loans of all Initial Term Lenders at such time.
“Initial Term Lender”: (a) prior to the Fourth Amendment Effective Date, each Term Lender that has a Term Commitment or holds Term Loans on the Closing Date and (b) from and after the Fourth Amendment Effective Date, each 2026 Refinancing Term Lender that has a 2026 Refinancing Term Commitment or holds 2026 Refinancing Term Loans.
“Initial Term Loans”: (a) prior to the Fourth Amendment Effective Date, the Term Loans made on the Closing Date and (b) from and after the Fourth Amendment Effective Date, the 2026 Refinancing Term Loans made on the Fourth Amendment Effective Date.
“Insolvency”: with respect to any Multiemployer Plan, the condition that such Plan is insolvent within the meaning of Section 4245 of ERISA.
“Insolvent”: pertaining to a condition of Insolvency.
“Intellectual Property”: the collective reference to all rights and privileges relating to intellectual property, whether arising under United States, multinational or foreign laws or otherwise, including copyrights, copyright licenses, patents, patent licenses, trademarks, trademark licenses and technology, know-how, trade secrets and proprietary information of any type, domain names and all rights to sue at law or in equity for any infringement or other impairment thereof, including the right to receive all proceeds and damages therefrom.
“Intellectual Property Security Agreement”: each Intellectual Property Security Agreement to be executed and delivered by each applicable Loan Party in accordance with Section 5.9 of the Guarantee and Collateral Agreement.
36
“Intercreditor Agreement”: an intercreditor agreement substantially in the form of Exhibit K-1 hereto or such other form that is reasonably acceptable to the Administrative Agent.
“Interest Payment Date”: (a) as to any Base Rate Loan or Daily RFR Loan (other than any Swingline Loan), the first day of each April, July, October and January to occur while such Loan is outstanding and the final maturity date of such Loan, (b) as to any Term Benchmark Loan having an Interest Period of three months or less, the last day of such Interest Period, (c) as to any Term Benchmark Loan having an Interest Period longer than three months, each day that is three months, or a whole multiple thereof, after the first day of such Interest Period and the last day of such Interest Period, (d) as to any Loan (other than any Revolving Loan that is a Base Rate Loan and any Swingline Loan), the date of any repayment or prepayment made in respect thereof and (e) as to any Swingline Loan, the day that such Loan is required to be repaid.
“Interest Period”: as to any Term Benchmark Loan (a) initially, the period commencing on the borrowing or conversion
date, as the case may be, with respect to
suchand ending, in the case of a Term Benchmark
Loan and
endingdenominated in Dollars, one, three or six
months,
thereafter, or, in the case of a Term Benchmark Loan denominated in Canadian Dollars, ending one or three months
thereafter, as selected by the Borrower in its notice of borrowing or notice of conversion, as the case may be, given with respect thereto; and (b) thereafter, each period commencing on the last day of the next preceding Interest
Period applicable to such Term Benchmark Loan and ending one, three or six months (in the case of a Term Benchmark Loan denominated
in Dollars) or ending one or three months (in the case of a Term Benchmark Loan denominated in Canadian Dollars), as selected by the Borrower by irrevocable notice to the
Applicable Administrative Agent no later than 1:00 p.m., New York City time, on the date that is three Business Days
prior to the last day of the then current Interest Period with respect thereto; provided, that, all of the foregoing provisions relating to Interest Periods are subject to the following:
(i) if any Interest Period would otherwise end on a day that is not a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless the result of such extension would be to carry such Interest Period into another calendar month in which event such Interest Period shall end on the immediately preceding Business Day;
(ii) the Borrower may not select an Interest Period under a particular Facility that would extend beyond the Revolving Termination Date or beyond the date final payment is due on the Term Loans, as applicable;
(iii) 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 a calendar month; and
(iv) the Borrower shall select Interest Periods so as not to require a payment or prepayment of any Term Benchmark Loan during an Interest Period for such Loan.
37
“Interpolated
Rate”: in relation to the LIBO Rate, the rate which results from
interpolating on a linear basis between:
(a)
the applicable LIBO Rate for the longest period (for which that LIBO Rate is available) which is less than the Interest Period of that Loan, and
(b) the applicable LIBO Rate for the shortest period (for which that LIBO Rate is available) which exceeds the Interest Period of that Loan,
each as of approximately 11:00 a.m. (London, England time) two Business
Days prior to the commencement of such Interest Period of that Loan.
“Investments”: as defined in Section 8.7.
“Issuing Lender”: as the context may require, (a) each Lender listed in Schedule 1.1(f) hereto, acting through any of its Affiliates or branches, in its capacity as an issuer of Letters of Credit hereunder, (b) with respect to each Existing Letter of Credit, the Lender that issued such Existing Letter of Credit, and (c) any other Lender that may become an Issuing Lender pursuant to Section 3.7(c), with respect to Letters of Credit issued by such Lender. Each Issuing Lender may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates or branches of such Issuing Lender, in which case the term “Issuing Lender” shall include any such Affiliate or branch with respect to Letters of Credit issued by such Affiliate or branch.
“Joint Bookrunner”: each of Barclays
Bank PLC, Morgan Senior Funding, Inc., BofA
Securities, Inc.,of America, N.A., PNC Capital
Markets LLC, JPMorgan Chase Bank, N.A., BMO Capital Markets Corp., Fifth Third Bank, National Association
and, HSBC Securities (USA) Inc,. Morgan
Stanley Senior Funding, Inc. and Jefferies Finance LLC.
“Judgment Currency”: as defined in Section 11.22.
“Junior Debt”: as defined in Section 8.8.
“L/C Commitment”: as to each Issuing Lender, the amount listed next to its name in Schedule 1.1(f) hereto, as the same may be reduced or increased from time to time in accordance herewith.
“L/C Fee Payment Date”: the first day of each April, July, October and January and the last day of the Revolving Commitment Period.
“L/C Obligations”: at any time, an amount equal to the sum of (a) the aggregate then undrawn and unexpired amount of the then outstanding Letters of Credit and (b) the aggregate amount of drawings under Letters of Credit that have not then been reimbursed pursuant to Section 3.11. The L/C Obligations as to any Revolving Lender shall be such Lender’s Revolving Percentage of the L/C Obligations then outstanding.
“L/C Participants”: the collective reference to all the Revolving Lenders (other than the Issuing Lenders in their capacities as such).
38
“Latest Maturity Date”: as of any date of determination, the latest maturity or expiration date applicable to any Loan or Commitment hereunder at such time, including the latest maturity or expiration date of any Incremental Loan, any Refinancing Term Loan, any Refinancing Revolving Loan or any Refinancing Revolving Commitment, in each case as extended in accordance with this Agreement from time to time.
“Lead Arrangers”: each of
Barclays Bank
PLC, Morgan Senior Funding,
Inc., BofA Securities, Inc.,of America, N.A., PNC Capital Markets
LLC, JPMorgan Chase Bank, N.A., BMO Capital Markets Corp., Fifth Third Bank, National Association
and, HSBC Securities (USA) Inc., Morgan Stanley Senior Funding, Inc. and Jefferies Finance LLC.
“Lender Vote/Directive”: as defined in
Section
11.2111.19.
“Lender-Related Person”: as defined in Section 11.5(d).
“Lenders”: as defined in the preamble hereto (including for the avoidance of doubt, the Term Lenders, the Revolving Lenders, the Swingline Lender and any Issuing Lender).
“Letters of Credit”: as defined in Section 3.7(a).
“LIBO Rate”:
as defined in the definition of “Eurodollar Base Rate.”
“Lien”: any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge or other security interest or any preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement and any capital lease having substantially the same economic effect as any of the foregoing).
“Limited Condition Acquisition”: any Permitted Acquisition or other permitted Investment that is not conditioned upon receipt of financing.
“Loan”: any loan made by any Lender pursuant to this Agreement.
“Loan Documents”: this Agreement, the Security Documents, the Notes and each other agreement and each other material certificate or document executed by any Loan Party and delivered to any Facilities Administrative Agent or any Lender pursuant to this Agreement or any Security Document; provided that the Amended and Restated Syndication and Fee Letter, dated as of August 28, 2019, among the Lead Arrangers and the Borrower shall not be a Loan Document.
“Loan Parties”: the collective reference to the Borrower and the Subsidiary Guarantors.
“Majority Facility Lenders”: with respect to any Facility, the holders of more than 50% of the aggregate unpaid principal amount of the Term Loans or the Revolving Extensions of Credit, as the case may be, outstanding under such Facility (or, in the case of the Revolving Facility, prior to any termination of the Revolving Commitments, the holders of more than 50% of the Total Revolving Commitments). The Loans and Commitments of any Defaulting Lender shall be disregarded in determining Majority Facility Lenders with respect to any Facility at any time. The Loans and Commitments of any Affiliated Lender shall, for purposes of this definition, be subject to Section 11.21.
39
“Management Advances”: advances, loans or promissory notes issued on an unsecured basis by the Borrower to a Management Investor in accordance with the Management Stock Agreements to fund all or a portion of the purchase price paid in connection with the repurchase by the Borrower of its Capital Stock from such Management Investor, if such repurchase is occasioned by the death, disability, or retirement of such Management Investor.
“Management Investors”: present or former officers, employees or directors of a Group Member who beneficially own outstanding capital stock of the Borrower.
“Management Stock Agreements”: any subscription agreement or stockholders agreement between the Borrower and any Management Investor.
“Material Adverse Effect”: (a) on the Closing Date with respect to the Target, a Target Material Adverse Effect or (b) after the Closing Date, a material adverse effect on (i) the business, assets, property, financial condition or results of operations of the Group Members, taken as a whole or (ii) the validity or enforceability of this Agreement or any of the other Loan Documents or the rights or remedies of any Facilities Administrative Agent or the Lenders hereunder or thereunder.
“Material Assets”: any assets (including, for the avoidance of doubt, any intellectual property) of the Borrower and its Restricted Subsidiaries that are material to the business of the Borrower and its Restricted Subsidiaries, taken as a whole, as reasonably determined by the Borrower in good faith.
“Material Domestic Subsidiary”: each Domestic Subsidiary which, for the most recently ended period of four consecutive fiscal quarters for which financial statements have been delivered pursuant to Section 7.1, contributed greater than five percent (5.0%) of the Borrower’s Consolidated Total Assets as of the end of such period. For purposes of this definition, Consolidated Total Assets shall be Consolidated Total Assets of (A) the Borrower and its consolidated subsidiaries and (B) the Domestic Subsidiary being tested, in each case determined in accordance with GAAP.
“Material Foreign Subsidiary”: each Foreign Subsidiary which, for the most recently ended period of four consecutive fiscal quarters for which financial statements have been delivered pursuant to Section 7.1, contributed greater than five percent (5.0%) of the Borrower’s Consolidated Total Assets as of the end of such period. For purposes of this definition, Consolidated Total Assets shall be Consolidated Total Assets of (A) the Borrower and its consolidated subsidiaries and (B) the Foreign Subsidiary being tested, in each case determined in accordance with GAAP.
“Material Subsidiary”: each Material Domestic Subsidiary and each Material Foreign Subsidiary.
40
“Materials of Environmental Concern”: any gasoline or petroleum (including crude oil or any fraction thereof) or petroleum products or any substances, materials or wastes, defined, listed or regulated as hazardous or toxic under any Environmental Law, including polychlorinated biphenyls, urea-formaldehyde insulation, asbestos, pollutants, contaminants, radioactive materials, and any other substances that are regulated pursuant to or could give rise to liability under any Environmental Law.
“Modification”:
a mortgage modification or new Mortgage in proper form for recording in the relevant jurisdiction and in a form reasonably satisfactory to the Administrative Agent.
“Moody’s”: Moody’s Investors Service, Inc. and any affiliate thereof and any successor thereto that is a nationally-recognized rating agency.
“Mortgaged
Properties”: the owned real properties listed on Schedule 1.01(a), as to
which the Administrative Agent for the benefit of the Secured Parties shall be granted a Lien pursuant to the Mortgages.
“Mortgages”: each of the mortgages, deeds to secure debts and deeds of trust made by any Loan Party in favor of, or for the benefit of, the Administrative Agent for the benefit of the Secured Parties,
substantially in the form of Exhibit D (with such changes thereto as
(a) shall be
advisable under the law of the jurisdiction in which such mortgage, deed to secure debt or deed of trust is to be recorded and (b) do not have a material adverse effect on any
Loan Party), as amended, restated, modified, supplemented or extended from time to time.
“Multiemployer Plan”: a Plan that is a multiemployer plan as defined in Section 4001(a)(3) of ERISA.
“Net Cash Proceeds”: as estimated in good faith by the Borrower, (a) in connection with any Asset Sale or any Recovery Event, the proceeds thereof in the form of cash (including any such proceeds received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment receivable or by the Disposition of any non-cash consideration received in connection therewith or otherwise, but only as and when received, and Cash Equivalents at their maturity) of such Asset Sale or Recovery Event, net of attorneys’ fees, accountants’ fees, investment banking fees, amounts required to be applied to the repayment of Indebtedness secured by a Lien expressly permitted hereunder on any asset that is the subject of such Asset Sale or Recovery Event (other than any Lien pursuant to a Security Document) and other reasonable fees and expenses actually incurred in connection therewith and net of taxes paid, payable or reasonably estimated to be payable as a result thereof and net of the Borrower’s good faith estimate of payments required to be made with respect to unassumed liabilities relating to the properties sold within 90 days of such Asset Sale (provided that, to the extent such cash proceeds are not used to make payments in respect of such unassumed liabilities within 90 days of such Asset Sale, such cash proceeds shall constitute Net Cash Proceeds) and (b) in connection with any issuance or sale of Capital Stock or any Incurrence of Indebtedness, the cash proceeds received from such issuance or Incurrence, net of attorneys’ fees, investment banking fees, accountants’ fees, underwriting discounts and commissions and other reasonable fees and expenses actually incurred in connection therewith; provided, that amounts provided as a reserve, in accordance with GAAP, against any liability under any indemnification obligations or purchase price adjustment associated with any of the foregoing shall not constitute Net Cash Proceeds except to the extent and at the time any such amounts are released from such reserve.
41
“Non-Consenting Lender”: as defined in Section 4.13(a).
“Non-Defaulting Lender”: any Lender other than a Defaulting Lender.
“Non-Excluded Taxes”: as defined in Section 4.10(b).
“Non-Extending Lender”: as defined in Section 4.18(e).
“Non-Loan Party Limitation Provision”: as defined in Section 8.7.
“Non-public Information”: information which has not been disseminated in a manner making it available to investors generally, within the meaning of Regulation FD of the Securities Act 1933, as amended.
“Non-U.S. Lender”: as defined in Section 4.10(e).
“Notes”: the collective reference to any promissory note evidencing Loans.
“Obligations”: the unpaid principal of and interest on (including interest accruing after the maturity of the Loans and Reimbursement Obligations and interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Borrower, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) the Loans and all other obligations and liabilities of the Borrower or any Subsidiary (solely with respect to any Specified Hedge Agreement or Specified Cash Management Arrangement) to any Facilities Administrative Agent or to any Lender (or, in the case of Specified Hedge Agreements or Specified Cash Management Arrangements, any Qualified Counterparty), whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter Incurred, which may arise under, out of, or in connection with, this Agreement, any other Loan Document, the Letters of Credit, any Specified Hedge Agreement, any Specified Cash Management Arrangements or any other document made, delivered or given in connection herewith or therewith, whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses, overdraft charges (including all reasonable fees, charges and disbursements of counsel to any Facilities Administrative Agent or to any Lender that are required to be paid by the Borrower pursuant hereto) or otherwise; provided, that (i) obligations of the Borrower or any Subsidiary under any Specified Hedge Agreement or Specified Cash Management Arrangement shall be secured and guaranteed pursuant to the Security Documents only to the extent that, and for so long as, the other Obligations are so secured and guaranteed and (ii) any release of Collateral or any release of the obligations of the Borrower or the Subsidiary Guarantors effected in the manner permitted by this Agreement shall not require the consent of holders of obligations under Specified Hedge Agreements or Specified Cash Management Arrangements. Notwithstanding the foregoing, Obligations shall not include any Excluded Swap Obligations.
42
“Official Body”: the government of the United States of America or of any other nation, or of any political subdivision of such a government, whether federal, state, provincial 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) and any group or body charged with setting financial accounting or regulatory capital rules or standards (including the Financial Accounting Standards Board, the Bank for International Settlements or the Basel Committee on Banking Supervision or any successor or similar authority to any of the foregoing).
“Organizational Documents”: as to any Person, its certificate or articles of incorporation and by-laws if a corporation, its partnership agreement if a partnership, its limited liability company agreement if a limited liability company, or other organizational or governing documents of such Person.
“Other Applicable Indebtedness”: Indebtedness permitted hereunder that is secured on a pari passu basis with the Obligations.
“Other Representatives”: the Lead Arrangers, the Joint Bookrunners, the Syndication
Agent(s)Agents
and the Documentation
Agent(s)Agents
.
“Other Taxes”: any and all present or future stamp, court or documentary, intangible, recording or filing taxes or any other excise taxes, charges or similar levies arising from any payment made hereunder or from the execution, delivery, performance, registration or enforcement of, from the receipt or perfection of a security interest under, or otherwise with respect to, this Agreement or any other Loan Document, except for any such Taxes described in clause (i) of the definition of Excluded Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 4.13).
“Outbound Investment Rules”: the regulations administered and enforced, together with any related public guidance issued, by the United States Treasury Department under U.S. Executive Order 14105 of August 9, 2023, or any similar law or regulation; as of the date of the Fourth Amendment Effective Date, and as codified at 31 C.F.R. § 850.101 et seq.
“Pari Debt Intercreditor Agreement”: an intercreditor agreement substantially in the form of Exhibit K-2 hereto or such other form that is reasonably acceptable to the Administrative Agent.
“Participant”: as defined in Section 11.6(c)(i).
“Participant Register”: as defined in Section 11.6(c)(iii).
“Patriot Act”: as defined in Section 11.18.
“Payment”: as defined in Section 10.16(a).
“Payment Notice”: as defined in Section 10.16(b).
43
“Payment Recipient”: as defined in Section 10.16(a).
“PBGC”: the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA (or any successor thereto).
“Permitted Acquisition”: any acquisition by purchase or otherwise of all or substantially all of the business, assets or at least a majority of the Capital Stock (other than directors’ qualifying shares) of any Person or a business unit of a Person so long as, subject to Section 1.3, (a) no Event of Default has occurred and is continuing at the time such acquisition is made and no Event of Default would result from the completion of such acquisition, (b) on a pro forma basis after giving effect to such acquisition, all related transactions (including the Incurrence and use of proceeds of all Indebtedness Incurred in connection therewith) and all other acquisitions and dispositions and related transactions at any time completed as if completed on the first day of the 12-month period ending on the most recent Test Date, (i) the Borrower would have been in compliance with Section 8.1 on the Test Date (assuming compliance with Section 8.1 was required on the Test Date) and (ii) the Consolidated Net Leverage Ratio on the Test Date would not have exceeded 6.00:1.00, and (c) if the aggregate consideration for such acquisition is more than $50,000,000, the Borrower delivers to the Facilities Administrative Agents a certificate of a Responsible Officer demonstrating in reasonable detail that the pro forma tests in clause (b) above are satisfied.
“Permitted
Encumbrances”: the (a) outstanding liens, easements, restrictions, security interests and other exceptions to title set
forth in the policy of title insurance insuring the lien of any Mortgage and
(b) liens and security interests in favor of the mortgagee under any Mortgage
created or permitted by the Loan Documents.
“Permitted Foreign Entities”: any First Tier Foreign Subsidiary which is a Restricted Subsidiary.
“Permitted Foreign Investment”: an Investment made by the Borrower or another Loan Party to any Permitted Foreign Entity or any other Wholly Owned Foreign Subsidiary after the Closing Date; provided that, the proceeds of such Investment are used by such Permitted Foreign Entity or Wholly Owned Foreign Subsidiary, as applicable, solely to directly, or indirectly through any Foreign Subsidiary of such Permitted Foreign Entity or Wholly Owned Foreign Subsidiary, finance a Permitted Acquisition.
“Permitted Investors”: collectively, any Management Investors and all of their respective Permitted Transferees.
“Permitted Junior Refinancing Debt”: secured Indebtedness Incurred by the Borrower or any other Loan Party in the form of one or more series of junior lien secured notes or junior lien loans; provided, that (i) such Indebtedness is secured by the Collateral on a junior priority basis to the Obligations hereunder and the obligations in respect of any Permitted Pari Passu Refinancing Debt and such Indebtedness is not secured by any property or assets of the Borrower or any Restricted Subsidiary of the Borrower other than the Collateral, (ii) such Indebtedness constitutes Credit Agreement Refinancing Indebtedness in respect of Term Loans, Incremental Loans, Refinancing Term Loans, outstanding Revolving Loans or outstanding
44
Refinancing Revolving Loans, (iii) such Indebtedness does not mature or have scheduled amortization or payments of principal prior to the date that is the Latest Maturity Date at the time such Indebtedness is Incurred, (iv) the security agreements relating to such Indebtedness are substantially the same as the Security Documents (with such differences as are reasonably satisfactory to the Administrative Agent), (v) such Indebtedness is not guaranteed by any Restricted Subsidiaries other than the Subsidiary Guarantors, (vii) a Senior Representative validly acting on behalf of the holders of such Indebtedness shall have become party to an Intercreditor Agreement or, if an Intercreditor Agreement has previously been entered into in connection with any other Permitted Junior Refinancing Debt, execute a joinder to the then existing Intercreditor Agreement in substantially the form provided in the Intercreditor Agreement, and (vii) such Indebtedness may be incurred in the form of a bridge or other interim credit facility intended to be refinanced with long-term indebtedness (and such bridge or other interim credit facility shall be deemed to satisfy clause (iii) of this definition so long as (x) such credit facility includes customary “rollover” provisions and (y) assuming such bridge or other interim credit facility were to be extended pursuant to such “rollover” provisions, such extended credit facility would comply with clause (iii) above) and in which case, on or prior to the first anniversary of the incurrence of such “bridge” or other interim credit facility, nothing in this definition shall prohibit the inclusion of customary terms for “bridge” facilities, including customary mandatory prepayment, repurchase or redemption provisions. Permitted Junior Refinancing Debt will include any Registered Equivalent Notes issued in exchange therefor.
“Permitted Liens”: any Liens permitted by Section 8.3.
“Permitted Pari Passu Refinancing Debt”: any secured Indebtedness Incurred by the Borrower or any other Loan Party in the form of one or more series of senior secured notes; provided, that (i) such Indebtedness is secured by the Collateral on a pari passu basis (but without regard to the control of remedies) with the Obligations hereunder and such Indebtedness is not secured by any property or assets of the Borrower or any Restricted Subsidiary other than the Collateral, (ii) such Indebtedness constitutes Credit Agreement Refinancing Indebtedness in respect of Term Loans, Incremental Loans, Refinancing Term Loans, outstanding Revolving Loans or outstanding Refinancing Revolving Loans, (iii) such Indebtedness does not mature or have scheduled amortization or payments of principal prior to the date that is the Latest Maturity Date at the time such Indebtedness is Incurred, (iv) the security agreements relating to such Indebtedness are substantially the same as the Security Documents (with such differences as are reasonably satisfactory to the Administrative Agent), (v) such Indebtedness is not guaranteed by any Restricted Subsidiaries other than the Subsidiary Guarantors, (vi) a Senior Representative validly acting on behalf of the holders of such Indebtedness shall have become party to the Intercreditor Agreement and/or Pari Debt Intercreditor Agreement (as applicable) or, if either such agreement has previously been entered into in connection with any other Permitted Pari Passu Refinancing Debt, execute a joinder to such then existing agreements in substantially the form provided therein, and (vii) such Indebtedness may be incurred in the form of a bridge or other interim credit facility intended to be refinanced with long-term indebtedness (and such bridge or other interim credit facility shall be deemed to satisfy clause (iii) of this definition so long as (x) such credit facility includes customary “rollover” provisions and (y) assuming such bridge or other interim credit facility were to be extended pursuant to such “rollover” provisions, such extended credit facility would comply with clause (iii) above) and in which case, on or prior to the first anniversary of the incurrence of such “bridge” or other interim credit facility, nothing in this definition shall prohibit the inclusion of customary terms for “bridge” facilities, including customary mandatory prepayment, repurchase or redemption provisions. Permitted Pari Passu Refinancing Debt will include any Registered Equivalent Notes issued in exchange therefor.
45
“Permitted Refinancing”: with respect to any Person, any modification, refinancing, refunding, renewal or extension of any Indebtedness of such Person; provided, that (a) the principal amount (or accreted value, if applicable) thereof does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so modified, refinanced, refunded, renewed or extended except by an amount equal to unpaid accrued interest and premium thereon plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with such modification, refinancing, refunding, renewal or extension and by an amount equal to any existing commitments unutilized thereunder, (b) such modification, refinancing, refunding, renewal or extension has a final maturity date equal to or later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being modified, refinanced, refunded, renewed or extended, (c) if the Indebtedness being modified, refinanced, refunded, renewed or extended is unsecured, such modification, refinancing, refunding, renewal or extension is unsecured, (d) if the Indebtedness being modified, refinanced, refunded, renewed or extended is subordinated in right of payment to the Obligations or any Lien securing such Indebtedness is subordinated, such modification, refinancing, refunding, renewal or extension is subordinated in right of payment to the Obligations and such Lien is subordinated, in each case on terms at least as favorable to the Lenders as those contained in the documentation governing the Indebtedness being modified, refinanced, refunded, renewed or extended, taken as a whole, and (e) the primary obligors and guarantors in respect of such Indebtedness being modified, refinanced, refunded, renewed or extended remain the same (or constitute a subset thereof).
“Permitted Transferees”: in the case of any Management Investors, (i) his or her heirs, executors, administrators, testamentary trustees, legatees or beneficiaries, (ii) his or her spouse, parents, siblings, members of his or her immediate family (including adopted children) or direct lineal descendants or (iii) a trust, the beneficiaries of which, or a corporation or partnership, the stockholders or partners of which, include only the Management Investor, as the case may be, and his or her spouse, parents, siblings, members of his or her immediate family (including adopted children) and/or direct lineal descendants.
“Permitted Unsecured Refinancing Debt”: unsecured Indebtedness Incurred by the Borrower or any other Loan Party in the form of one or more series of senior or subordinated unsecured notes or loans; provided that (i) such Indebtedness constitutes Credit Agreement Refinancing Indebtedness in respect of Term Loans, Incremental Loans, Refinancing Term Loans, outstanding Revolving Loans or outstanding Refinancing Revolving Loans, (ii) such Indebtedness does not mature or have scheduled amortization or payments of principal prior to the date that is the Latest Maturity Date at the time such Indebtedness is Incurred, (iii) such Indebtedness is not guaranteed by any Restricted Subsidiaries other than the Subsidiary Guarantors, (iv) such Indebtedness is not secured by any Lien on any property or assets of Borrower or any Restricted Subsidiary, and (v) such Indebtedness may be incurred in the form of a bridge or other interim credit facility intended to be refinanced with long-term indebtedness (and such bridge or other interim credit facility shall be deemed to satisfy clause (ii) of this definition so long as (x) such credit facility includes customary “rollover” provisions and (y) assuming such bridge or other
46
interim credit facility were to be extended pursuant to such “rollover” provisions, such extended credit facility would comply with clause (ii) above) and in which case, on or prior to the first anniversary of the incurrence of such “bridge” or other interim credit facility, nothing in this definition shall prohibit the inclusion of customary terms for “bridge” facilities, including customary mandatory prepayment, repurchase or redemption provisions. Permitted Unsecured Refinancing Debt will include any Registered Equivalent Notes issued in exchange therefor.
“Person”: an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture, Governmental Authority or other entity of whatever nature.
“Pesos”: the lawful money of the United Mexican States.
“Plan”: at a particular time, any employee pension benefit plan that is covered by ERISA and in respect of which the Borrower or a Commonly Controlled Entity is (or, if such plan were terminated at such time, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.
“Platform”: as defined in Section 7.2(f).
“Pledged Notes”: as defined in the Guarantee and Collateral Agreement.
“Pledged Stock”: as defined in the Guarantee and Collateral Agreement.
“Prime Rate”: the rate of interest last quoted by The Wall Street Journal as the “Prime Rate” in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by the Applicable Administrative Agent) or any similar release by the Federal Reserve Board (as determined by the Applicable Administrative Agent).
“Projections”: as defined in Section 7.2(b).
“Properties”: as defined in Section 5.17(a).
“Property”: any right or interest in or to property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, including Capital Stock.
“PTE”: a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
“PTO”: as defined in Section 5.19(c).
“Qualified Counterparty”: with respect to any Specified Hedge Agreement or Specified Cash Management Arrangement, any counterparty thereto that, (i) at or before the time such Specified Hedge Agreement or Specified Cash Management Arrangement was entered into or (ii) on or after the Closing Date, was a Lender or any Facilities Administrative Agent or an affiliate of a Lender.
47
“Ratio Incremental Amount”: as defined in clause (c) of the definition of “Incremental Amount.”
“Recovery Event”: any settlement of or payment in respect of any property or casualty insurance claim or any condemnation proceeding relating to any asset of any Group Member, other than (x) any such settlement or payment arising by reason of any loss of revenues or interruption of business or operations caused thereby and (y) any such settlement or payment constituting reimbursement or compensation for amounts previously paid by any Group Member in respect of the theft, loss, destruction, damage or other similar event relating to any such claim or proceeding.
“Refinanced Debt”: as defined in the definition of “Credit Agreement Refinancing Indebtedness.”
“Refinancing”: the payment in full of the Existing Debt Agreements.
“Refinancing Amendment”: an amendment to this Agreement in form and substance reasonably satisfactory to the Facilities Administrative Agents and the Borrower executed by each of (a) the Borrower, (b) the Facilities Administrative Agents and (c) each Additional Lender and Lender that agrees to provide any portion of the Credit Agreement Refinancing Indebtedness being Incurred pursuant thereto, in accordance with Section 4.19.
“Refinancing Revolving Commitments”: the revolving credit commitments hereunder that result from a Refinancing Amendment.
“Refinancing Revolving Loans”: the Revolving Loans made pursuant to any Refinancing Revolving Commitment.
“Refinancing Term Commitments”: one or more Tranches of term loan commitments hereunder that result from a Refinancing Amendment.
“Refinancing Term Loans”: one or more Tranches of Term Loans that result from a Refinancing Amendment.
“Register”: as defined in Section 11.6(b)(iv).
“Registered Equivalent Notes”: with respect to any notes originally issued in a Rule 144A or other private placement transaction under the Securities Act of 1933, substantially identical notes (having the same Guarantee Obligation) issued in a dollar-for-dollar exchange therefor pursuant to an exchange offer registered with the SEC.
“Regulation T”: Regulation T of the Board as in effect from time to time.
“Regulation U”: Regulation U of the Board as in effect from time to time.
48
“Regulation X”: Regulation X of the Board as in effect from time to time.
“Reimbursement Obligation”: the obligation of the Borrower to reimburse each Issuing Lender pursuant to Section 3.11 for amounts drawn under Letters of Credit.
“Reinvestment Deferred Amount”: with respect to any Reinvestment Event, an amount equal to the aggregate Net Cash Proceeds received by any Group Member in connection therewith that would have otherwise been required to be applied to prepay the Term Loans pursuant to Section 4.2(b)(i) but for the delivery of the Reinvestment Notice.
“Reinvestment Event”: any Asset Sale or Recovery Event in respect of which the Borrower has delivered a Reinvestment Notice.
“Reinvestment Notice”: a written notice executed by a Responsible Officer stating that no Event of Default has occurred and is continuing and that the Borrower (directly or indirectly through a Restricted Subsidiary) intends to use an amount equal to all or a specified portion of the Net Proceeds of an Asset Sale or Recovery Event to acquire, improve or repair fixed or capital assets useful in its business, or to complete a Permitted Acquisition.
“Reinvestment Prepayment Amount”: with respect to any Reinvestment Event, the Reinvestment Deferred Amount relating thereto less any amount expended prior to the relevant Reinvestment Prepayment Date to acquire, improve or repair fixed or capital assets useful in the Borrower’s business, to acquire a brand or trademark and related assets or to complete a Permitted Acquisition.
“Reinvestment Prepayment Date”: with respect to any Reinvestment Event the date occurring eighteen months after the receipt by the Borrower of proceeds relating to such Reinvestment Event (or the 180th day thereafter if the Borrower or any of its Restricted Subsidiaries has entered into a legally binding commitment to apply such proceeds in accordance with the applicable Reinvestment Notice).
“Related Persons”: with respect to any specified Person, such Person’s Affiliates and the respective officers, directors, employees, attorneys, agents and advisors of such Person and such Person’s Affiliates.
“Relevant Governmental Body”:
(a) with respect to a Benchmark Replacement in respect of Loans denominated in Dollars, the Board of Governors of the
Federal Reserve
BoardSystem
of the United States and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the
Board of Governors of the Federal Reserve
Board
and/System of the United States or the Federal
Reserve Bank of New York, or any successor
thereto, and
(b) with respect to a Benchmark Replacement in respect of Loans denominated in any other Approved
Currency, (1) the central bank for the Currency in which such Benchmark Replacement is denominated or any
central bank or other supervisor which is responsible for supervising either (A) such Benchmark
Replacement or (B) the administrator of such Benchmark Replacement or (2) any working group or committee officially endorsed or convened by (A) the central bank for the Currency in which such Benchmark Replacement is denominated, (B) any central bank or other supervisor that is responsible for supervising either
(i) such Benchmark Replacement or (ii) the administrator of such Benchmark Replacement, (C) a group of those central banks or other supervisors or (D) the Financial Stability Board or any part thereof.
49
“Removal Effective Date”: as defined in Section 10.9(b).
“Reportable Event”: any of the events set forth in Section 4043(b) of ERISA, other than those events as to which the thirty day notice requirement is waived by regulation in effect as of the Closing Date.
“Repricing Transaction”: (i) prepayment or refinancing of all or a portion of the Term Loans concurrently with the Incurrence by the Borrower of any long-term bank debt financing or any other financing similar to the Term Loans having a lower All-In Yield than the All-In Yield applicable to the Term Loans and (ii) any amendment which reduces the All-In-Yield applicable to the Term Loans; provided that “Repricing Transaction” shall not include (a) any Transformative Acquisition and (b) a transaction that results in a Change of Control. For the avoidance of doubt, a Repricing Transaction shall not include any repayment or refinancing consummated with proceeds of an offering of debt or equity securities by the Borrower or any of its Subsidiaries.
“Required Lenders”: at any time, the holders of more than 50% of the sum of (i) the aggregate unpaid principal amount
of the Term Loans then outstanding and (ii) the Revolving Commitments then in effect or, if the Revolving Commitments have been terminated, the Revolving Extensions of Credit then outstanding. The Loans and Commitments of any Defaulting Lender
shall be disregarded in determining Required Lenders at any time. The Loans and Commitments of any Affiliated Lender shall, for purposes of this definition, be subject to
Section
11.2111.19.
“Required Prepayment Percentage”: 50%, or, if as of the end of the most recent fiscal year (starting with the
fiscal year ending on March 31,
20212027
), the Consolidated Senior Secured Net Leverage Ratio is less than or equal to 2.25 to 1.00 but greater than 1.75 to 1.00, 25%, or if on the date of the applicable prepayment, the Consolidated Senior Secured Net Leverage Ratio is less
than or equal to 1.75 to 1.00, 0%.
“Requirement of Law”: as to any Person, any law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.
“Required Revolving Lenders” shall
mean,: at any time, Revolving Lenders having
(a) Revolving Loans (other than Swingline Loans) outstanding, (b) L/C Obligations, (c) Swingline Exposures, and (d) unused Revolving Commitments (in each case, calculated based on the Dollar Equivalent thereof) that, taken
together, represent more than 50% of the sum of (w) all Revolving Loans (other than Swingline Loans) outstanding, (x) all L/C Obligations, (y) all Swingline Exposures, and (z) the total unused Revolving Commitments at such time
(in each case, calculated based on the Dollar Equivalent thereof); provided, that the Revolving Loans, L/C Obligations, Swingline Exposures, and unused Revolving Commitments of any Defaulting Lender shall be disregarded in determining
Required Revolving Lenders at any time.
50
“Required Term Lenders”: at any time, the holders of more than 50% of the aggregate unpaid principal amount of the Term Loans then outstanding. The Term Loans of any Defaulting Lender shall be disregarded in determining Required Term Lenders at any time. The Term Loans of any Affiliated Lender shall, for purposes of this definition, be subject to Section 11.19.
“Resolution Authority”: an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible Officer”: with respect to any Person, the chief executive officer, president, vice president, chief financial officer, secretary, treasurer, assistant secretary, assistant treasurer, manager, director or duly appointed attorney-in-fact or similar Person or any other person designated by the board of directors or managing officers, as applicable, in a resolution.
“Restricted Payments”: as defined in Section 8.6.
“Restricted Subsidiary”: any Subsidiary of the Borrower other than an Unrestricted Subsidiary. The Borrower may designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided, that immediately prior and immediately after giving effect to such designation (x) the Borrower would have been in compliance with Section 8.1 on the Test Date (assuming compliance with Section 8.1 was required on the Test Date) on a pro forma basis after giving effect to such designation and all related transactions at any time completed as if completed on the first day of the 12-month period ending on the most recent Test Date and (y) no Default or Event of Default shall have occurred and be continuing. Any such designation by Borrower shall be evidenced to the Facilities Administrative Agents by promptly delivering to such Facilities Administrative Agents a certificate signed by a Responsible Officer of the Borrower certifying that such designation complied with the foregoing provisions. The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute (i) the incurrence at the time of designation of any Investment, Indebtedness and Liens of such Subsidiary existing at such time and (ii) a return on any Investment by the Borrower in such Subsidiary pursuant to sub-clause (C) of the definition of Unrestricted Subsidiary in an amount equal to the fair market value at the date of such designation of the Borrower’s Investment in such Subsidiary.
“Revolving Administrative Agent”: as defined in the preamble to this Agreement.
“Revolving Commitment”: as to any Lender, the obligation of such Lender, if any, to
make Revolving Loans and participate in Swingline Loans and Letters of Credit in an aggregate principal and/or face amount not to exceed,
(a) prior to the Fourth Amendment Effective Date, in the case of Lenders party hereto as of the Closing Date,
the amount set forth opposite such Lender’s name on Schedule 1.1(e) hereto and,
(b) from
and after the Fourth Amendment Effective Date, in the case of Lenders party hereto as of the Fourth Amendment Effective Date, the amount set forth opposite such
Lender’s
name on Schedule III of the Fourth Amendment and (c) in the case of Lenders that become parties hereto after such datedates, the amount set forth in the Assignment and Assumption by which such Lender
became a party hereto, in each case of the foregoing clauses (a)
and, (b) and (c), as the same may be changed from time to time pursuant to the terms hereof. The aggregate amount of Revolving
Commitments as of the Second Amendment Effective Date iswas
$600,000,000. The aggregate amount of Revolving Commitments as of the Fourth Amendment Effective Date is
$750,000,000.
51
“Revolving Commitment Period”: (a) prior to the Fourth Amendment Effective Date, the period from and including the Closing Date up to but excluding the
Business Day preceding the Revolving Termination Date. (as in effect prior to the Fourth Amendment Effective Date) and (b) from and after the Fourth Amendment Effective Date, the period from and including the Fourth Amendment Effective Date up to but
excluding the Business Day preceding the Revolving Termination Date (as in effect from and after the Fourth Amendment Effective Date).
“Revolving Extensions of Credit”: as to any Revolving Lender at any time, an amount equal to the sum of (a) the Dollar Equivalent of the aggregate principal amount of all Revolving Loans held by such Lender then outstanding, (b) such Lender’s Revolving Percentage of the L/C Obligations then outstanding and (c) such Lender’s Revolving Percentage of the aggregate principal amount of Swingline Loans then outstanding.
“Revolving Facility”: at any time, the aggregate amount of the Revolving Lenders’ Revolving Commitments at such time (including any Incremental Revolving Commitments).
“Revolving Lender”: each Lender that has a Revolving Commitment or that holds Revolving Loans.
“Revolving Loans”: as defined in Section 3.1(a).
“Revolving Percentage”: as to any Revolving Lender at any time, the percentage which such Lender’s Revolving Commitment then constitutes of the Total Revolving Commitments (or, at any time after the Revolving Commitments shall have expired or terminated, the percentage which the aggregate principal amount of such Lender’s Revolving Loans then outstanding constitutes of the aggregate principal amount of the Revolving Loans then outstanding).
“Revolving Termination
Date”: the earlier of (a) the fifth anniversary of the Second Amendment Effective DateFebruary 27,
2031 and (b) the date on which the Revolving Commitments are terminated pursuant to any provision of this Agreement, provided that, to the extent that there are Term Loans outstanding hereunder with a maturity date earlier than the date that is six months following the Revolving Termination Date set forth in
clause (a) above, then the Revolving Termination Date shall be the date that is six months prior to the earliest maturity date of the outstanding Term Loans..
“RFR” : for any Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to, (a) Euro, €STR, (b) Canadian Dollars, CORRA and (c) Mexican Pesos, F -TIIE.
“S&P”: Standard & Poor’s Ratings Services and any affiliate thereof and any successor thereto that is a nationally-recognized rating agency.
52
“Sanctioned Country”: at any time, a country or territory that is itself the target of comprehensive Sanctions (as of the Second Amendment Effective Date, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, the so-called Donetsk People’s Republic, and the so-called Luhansk People’s Republic).
“Sanctioned Person”: at any time,
(a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, the or by the United Nations Security Council, the European Union or any EU member state or the Hong Kong Monetary Authority, (b) any Person organized or
resident in a Sanctioned Country or (c) any Person owned 50 % or more or controlled by any such Person.
“Sanctions”: economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by
(a) the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, or
(b) the United Nations Security Council, the European Union or HerHis Majesty’s Treasury of the United Kingdom, or
(c) the Hong Kong Monetary Authority.
“SEC”: the Securities and Exchange Commission, any successor thereto and otherwise any analogous Governmental Authority.
“Second Amendment Effective Date”: May 26, 2022.
“Secured Obligations”: as defined in the Guarantee and Collateral Agreement.
“Secured Parties”: as defined in the Guarantee and Collateral Agreement.
“Security Documents”: the collective reference to the Guarantee and Collateral Agreement, the Intellectual Property
Security Agreements, Modifications, the Mortgages and all other security documents hereafter delivered to the
Administrative Agent granting a Lien on any property of any Person to secure the obligations and liabilities of any Loan Party under any Loan Document.
“Senior Representative”: with respect to any series of Permitted Pari Passu Refinancing Debt or Permitted Junior Refinancing Debt, the trustee, administrative agent, collateral agent, security agent or similar agent under the indenture or agreement pursuant to which such Indebtedness is issued, Incurred or otherwise obtained, as the case may be, and each of their successors in such capacities.
“Single Employer Plan”: any Plan that is covered by Title IV of ERISA, Section 302 of ERISA or Section 412 of the Code, but that is not a Multiemployer Plan.
“SOFR”: for any day, a rate equal to the secured overnight financing rate as administered by the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).
53
“Solvent”: with respect to any Person, as of any date of determination, (a) the amount of the “present fair saleable value” of the assets of such Person will, as of such date, exceed the amount of all “liabilities of such Person, contingent or otherwise”, as of such date, as such quoted terms are determined in accordance with applicable federal and state laws governing determinations of the insolvency of debtors, (b) the present fair saleable value of the assets of such Person will, as of such date, be greater than the amount that will be required to pay the liability of such Person on its debts as such debts become absolute and matured, (c) such Person will not have, as of such date, an unreasonably small amount of capital with which to conduct its business, and (d) such Person will be able to pay its debts as they mature. For purposes of this definition, (i) “debt” means liability on a “claim”, and (ii) “claim” means any (x) right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured or (y) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured or unmatured, disputed, undisputed, secured or unsecured.
“Specified Acquisition Agreement Representations”: the representations made by or on behalf of the Target or its subsidiaries in the Acquisition Agreement as are material to the interests of the Lenders, but only to the extent that the Borrower or its applicable Affiliates have the right (taking into account any applicable cure provisions) to terminate its (or their) obligations under the Acquisition Agreement or decline to consummate the Acquisition as a result of a breach of any such representations in the Acquisition Agreement.
“Specified Cash Management Arrangement”: any arrangement for treasury, depositary or cash management services (including any credit card, commercial card, merchant card or other stored value card services and any processing of payments and other administrative services with respect thereto) provided to the Borrower or any of its Subsidiaries by a Qualified Counterparty in connection with any transfer or disbursement of funds through an automated clearinghouse or on a same day or immediate or accelerated availability basis that has been designated as a Specified Cash Management Arrangement by notice from the Borrower to the Facilities Administrative Agents. The designation by the Borrower of any such arrangement as a Specified Cash Management Arrangement shall not create in favor of the Qualified Counterparty that is a party thereto any rights in connection with the management, enforcement or release of any Collateral or of the Obligations of the Borrower or any Subsidiary Guarantor under the Guarantee and Collateral Agreement.
“Specified Existing Tranche”: as defined in Section 4.18(a).
“Specified Hedge Agreement”: any Hedge Agreement between the Borrower or any of its Subsidiaries and any Qualified Counterparty that has been designated as a Specified Hedge Agreement by notice from the Borrower to the Facilities Administrative Agents (it being understood that one notice with respect to a specified ISDA Master Agreement may designate all transactions thereunder as being “Obligations” under a Specified Hedge Agreement, without the need for separate notices for each individual transaction thereunder). The designation by the Borrower of any Hedge Agreement as a Specified Hedge Agreement (a) shall constitute a representation and warranty by the Borrower that such Hedge Agreement is permitted by Section 8.11 (upon which such Qualified Counterparty shall be entitled to rely conclusively) and (b) shall not create in favor of the Qualified Counterparty that is a party thereto any rights in connection with the management, enforcement or release of any Collateral or of the Obligations of the Borrower or any Subsidiary Guarantor under the Guarantee and Collateral Agreement except to the extent expressly set forth in the Guarantee and Collateral Agreement.
54
“Specified Representations”: the representations and warranties made by the Borrower and the other Loan Parties, as applicable, set forth in Section 5.3(a) (solely with respect to the Loan Parties), Section 5.4, Section 5.5 (solely with respect to Organizational Documents of the Loan Parties), Section 5.11, Section 5.14, Section 5.19, Section 5.20, Section 5.22 and Section 5.23.
“Statutory Reserve Rate”: a fraction (expressed as a decimal), the numerator of which is the
number one and the denominator of which is the number one minus the aggregate of the maximum reserve percentages (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the Board to which the
Administrative Agent is subject with respect to the Adjusted LIBO Rate, for “Eurocurrency” funding (currently referred to as “Eurocurrency Liabilities” in Regulation D). Such reserve percentages shall include those imposed pursuant to such Regulation D. Eurocurrency Loans shall be deemed to constitute eurocurrency funding
and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under such Regulation D or any comparable regulation. The Statutory Reserve Rate
shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.
“Subsidiary”: as to any Person, mean any corporation, trust, partnership, limited liability company or other business entity of which more than 50% of the outstanding voting securities or other interests normally entitled to vote for the election of one or more directors or trustees (regardless of any contingency which does or may suspend or dilute the voting rights) is at such time owned directly or indirectly by such Person or one or more of such Person’s Subsidiaries. Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a Subsidiary or Subsidiaries of the Borrower.
“Subsidiary Guarantor”: each Wholly Owned Subsidiary of the Borrower that is a Material Domestic Subsidiary (or any other Restricted Subsidiary designated by the Borrower as a Subsidiary Guarantor) and party to the Guarantee and Collateral Agreement from time to time. Notwithstanding anything herein or in any other Loan Document to the contrary, no Excluded Subsidiary shall be required to be a Subsidiary Guarantor.
“Swingline Commitment”: $60,000,000.
“Swingline Exposure”: at any time the aggregate principal amount at such time of all outstanding Swingline Loans. The Swingline Exposure of any Revolving Lender at any time shall equal its Revolving Percentage of the aggregate Swingline Exposure at such time.
“Swingline Lender”: PNC Bank, National Association, in its capacity as the lender of Swingline Loans.
“Swingline Loans”: as defined in Section 3.3(a).
“Swingline Participation Amount”: as defined in Section 3.4(c).
55
“Syndication Agents”: Barclays Bank PLC and, BofA Securities
Incof America, N.A., PNC Capital Markets LLC and JPMorgan Chase Bank, N.A.
“Target”: Infiltrator Water Technologies Ultimate Holdings, Inc., a Delaware corporation.
“Target Historical Financial Statements”: as defined in Section 5.1(b).
“Target Material Adverse Effect”: a “Material Adverse Change”, as defined in the Acquisition Agreement as of the Closing Date.
“Target Person”: as defined in Section 8.7.
“Taxes”: all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“ Term Administrative Agent”: as defined in the preamble to this Agreement.
“Term
Benchmark”: when used in connection with any Loan, refers to whether such Loan bears interest at a rate determined by reference to (a) if such Loan is denominated in Dollars, the Adjusted Term SOFR Rate, (b) if such Loan is denominated in Euros, (i) the rate per annum equal to the Euro
Interbank Offered Rate (“EURIBOR”) as administered by the European Money Markets Institute (or any other Person that takes over the administration of such rate) for a period equal in length to such Interest Period, as displayed on
the applicable Bloomberg page (or on any successor or substitute page or service providing such quotations as determined by the Applicable Administrative Agent from time to time; in each case, the “EURIBOR Rate”) at approximately
11:00 a.m. (Brussels, Belgium time), two Business Days prior to the commencement of such Interest Period; provided, that if by such time the EURIBOR Rate in respect of such day has not been so published, or if such day is not a Business Day,
then the EURIBOR Rate for such day will be the EURIBOR Rate as published in respect of the first preceding Business Day for which such EURIBOR Rate was published thereon; provided further that any EURIBOR Rate so determined based on
the first preceding Business Day shall be utilized for purposes of calculation of the Eurocurrency Rate for no more than three consecutive Business Days, and (c) if such
Loan is denominated in Canadian Dollars, (i) the rate per annum (the “CDOR
Rate”) as determined by the Applicable Administrative Agent, equal to the arithmetic average rate applicable to Canadian Dollar bankers’ acceptances
(C$BAs) forTerm CORRA Reference Rate for a period equal in length to the applicable Interest Period appearing on the Bloomberg page BTMM CA, rounded upwards, at the Applicable Administrative Agent’s discretion, to the nearest 1/100 of 1% per
annum,,
as displayed on a page or service providing such quotations as determined by the Revolving Administrative
Agent from time to time (the “Term CORRA
Rate”)
at approximately 11:00 a.m. Eastern Time, two1:00 p.m. (Toronto time) two (2) Business Days prior to the
commencement of such Interest Period; provided,
that if by such time such rate does not appear on the Bloomberg page BTMM CA, the CDOR Rate on such day shall be the rate for such period applicable to Canadian Dollar
bankers’ acceptances quoted by a bank listed in Schedule I of the Bank Act (Canada), as selected by the Applicable Administrative Agent, as of 11:00 a.m. Eastern Time
56
on such day or, if such day is not a Business Day, then on the immediatelythe Term CORRA Rate in respect of such day has not been so published, then the Term CORRA Rate for such day will be the Term CORRA Rate as
published in respect of the first preceding Business Day for which
such Term CORRA Rate was published thereon; provided further that any CDORTerm CORRA Rate so determined based on the immediatelyfirst preceding Business Day shall be utilized for purposes of calculation of the EurocurrencyTerm CORRA Rate for no more than three (3) consecutive Business Days and (d) if such Loan is denominated in Pesos, the rate per annum equal to the Mexican Interbank Equilibrium Interest Rate or the successor thereto as approved by the Applicable Administrative Agent as published by Banco de Mexico (or on any successor or
substitute service providing rate quotations comparable to those currently provided by such service, as determined by the Applicable Administrative Agent from time to time) rounded to the nearest 1/100th of 1% (with .005% being rounded up)
per annum, at approximately 12:30 p.m. (Mexico City, Mexico
time) two Business Days prior to the commencement of such Interest Period;(any such day, collectively,
the “Term CORRA Reference Rate Lookback Day”); provided that if the Term Benchmark as so determined would be less than zerothe Floor, such rate shall be deemed to be
zerothe Floor.
“Term Benchmark Loan”: Loans the rate of interest applicable to which is based upon the applicable Term Benchmark.
“Term Benchmark Tranche”: the collective reference to Term Benchmark Loans under a particular Facility for which the then current Interest Periods with respect to all of which begin on the same date and end on the same later date (whether or not such Loans shall originally have been made on the same day).
“Term Commitment”: as to any Lender, the obligations of such Lender, if any, to make the Term Loans to the Borrower in an amount not to exceed the amount set forth opposite such Lender’s name on Schedule 1.1(d) hereto.
“Term CORRA Reference Rate”: the forward-looking term rate based on CORRA, as administered by the Term CORRA Reference Rate Administrator.
“Term CORRA Reference Rate Administrator”: CanDeal Benchmark Administration Services Inc. or TSX Inc. (or any successor administrator of the Term CORRA Reference Rate selected by the Revolving Administrative Agent in its reasonable discretion).
“Term Facility”: the Initial Term Facility or any Incremental Term Facility, and “Term Facilities” means all of them, collectively.
“Term Lender”: (a) on the Closing Date, any Lender that has a Term Commitment at such time, and (b) at any time after the Closing Date, any Lender that holds Term Loans (or Term Commitments under any Incremental Term Loan Facility) at such time.
“Term Loans”: an advance made by any Term Lender under any Term Facility.
“Term Loan Maturity Date”: as defined in Section 2.3.
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“Term Percentage”: as to any Term Lender at any time, the percentage which the aggregate principal amount of such Lender’s Term Loans then outstanding constitutes of the aggregate principal amount of the Term Loans then outstanding.
“Term SOFR”: the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body.
“Term SOFR Administrator”: the CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the Applicable Administrative Agent in its reasonable discretion).
“Term SOFR Determination Day”: as defined in the definition of “Term SOFR Reference Rate”.
“Term SOFR Rate”: for any calculation with respect to a Loan, the Term SOFR Reference Rate for a tenor comparable to the applicable Interest Period on the day (such day, the “Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to the first day of such Interest Period, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m., New York City time, on any Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Term SOFR Determination Day.
“Term SOFR Reference Rate”: the rate per annum determined by the Applicable Administrative Agent as the forward-looking term rate based on SOFR.
“Test Date”: at any time, the last day of the most recently ended fiscal quarter for which the Borrower’s consolidated annual or quarterly financial statements are then available.
“Total L/C
Commitments”:
$50,000,00075,000,000
.
“Total Revolving Commitments”: at any time, the aggregate amount of the Revolving Commitments then in effect.
“Total Revolving Extensions of Credit”: at any time, the aggregate amount of the Revolving Extensions of Credit outstanding at such time.
“Tranche”: each tranche of Loans and/or
Commitments available hereunder. On the
ClosingFourth Amendment
Effective Date there shall be two tranches comprising (i) the Initial Term Facility and (ii) the Revolving Facility.
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“Transaction Costs”: the fees, costs and expenses payable by the Borrower or any of its Restricted Subsidiaries in connection with the Transactions and any other transactions entered into in connection therewith.
“Transactions”: collectively, the Acquisition, the Refinancing and the Borrower’s obtaining of the Initial Term Facility and the Revolving Facility.
“Transferee”: any Assignee or Participant.
“Transformative Acquisition”: any acquisition or Investment by the Borrower or any Restricted Subsidiary that either (a) is not permitted by the terms of this Agreement immediately prior to the consummation of such acquisition or Investment or (b) if permitted by the terms of this Agreement immediately prior to the consummation of such acquisition or Investment, would not provide the Borrower and its Restricted Subsidiaries with adequate flexibility under this Agreement for the continuation and/or expansion of their combined operations following such consummation, as reasonably determined by the Borrower acting in good faith.
“Type”: as to any Loan, its nature as a Base Rate Loan or, a Term Benchmark Loan or a Daily RFR Loan.
“UK Financial Institution”: any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
“UK Resolution Authority”: the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“Unadjusted Benchmark Replacement”: the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
“United States”: the United States of America.
“Unrestricted Cash”: cash or Cash Equivalents of the Borrower or any of its Restricted Subsidiaries that would not appear as “restricted” on a consolidated balance sheet of the Borrower in accordance with GAAP; provided that cash and Cash Equivalents that are restricted or secured (i) in favor of the Indebtedness under this Agreement shall be deemed to be Unrestricted Cash and (ii) in favor of other Indebtedness secured by a pari passu or junior Lien on the Collateral as permitted under this Agreement shall be deemed to be Unrestricted Cash (only if such cash and Cash Equivalents are also restricted or secured in favor of the Indebtedness under this Agreement on a pari passu or senior basis to the Lien of such other Indebtedness).
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“Unrestricted Subsidiary”:
(i) each Subsidiary, if any, listed on Schedule 1.1(b), (ii) any Subsidiary of the Borrower that at the time of determination is an Unrestricted Subsidiary, as designated by the Borrower in the manner provided below, and (iii) any Subsidiary of an Unrestricted Subsidiary. The Borrower may designate any Subsidiary of the Borrower (including any newly acquired or newly formed Subsidiary of the Borrower) to be an Unrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries (x) owns any Capital Stock or Indebtedness of, or owns or holds any Lien on any property of, the Borrower or any other Restricted Subsidiary of the Borrower that is not a Subsidiary of the Subsidiary to be so designated or (y) owns (or has an exclusive license to) any Material Assets; provided, that (i)(A) such designation was made at or prior to the Closing Date (and any such Subsidiary so designated is set forth on Schedule 1.1(b) hereto), or (B) the Subsidiary to be so designated has total consolidated assets of $1,000 or less or (C) if such Subsidiary has consolidated assets greater than $1,000, then the fair market value of such designation would be permitted under Section 8.7 and
(ii) any Unrestricted Subsidiary that has been designated as a Restricted Subsidiary may not subsequently be re-designated as an Unrestricted Subsidiary without the prior consent of the Facilities Administrative Agents and in compliance with the definition of Restricted Subsidiary; provided, further, that immediately prior and immediately after giving effect to such designation as an Unrestricted Subsidiary (x) the Borrower would have been in compliance with Section 8.1 on the Test Date (assuming compliance with Section 8.1 was required on the Test Date) on a pro forma basis after giving effect to such designation and all related transactions at any time completed as if completed on the first day of the 12-month period ending on the most recent Test Date and (y) no Default or Event of Default shall have occurred and be continuing. Any such designation by the Borrower shall be evidenced to the Facilities Administrative Agents by promptly delivering to the Facilities Administrative Agents a certificate signed by a Responsible Officer of the Borrower certifying that such designation complied with the foregoing provisions.
“Unrestricted Subsidiary Cap”: as defined in Section 8.7.
“Unrestricted Subsidiary Cap Provision”: as defined in Section 8.7.
“U.S. Government Securities Business Day”: any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.
“U.S. Person”: for purposes of Sections 5.26 and 8.16 hereof, any United States citizen, lawful permanent resident, entity organized under the laws of the United States or any jurisdiction within the United States, including any foreign branch of any such entity, or any person in the United States.
“Valuation Date”:
(i) the date two Business Days prior toof the making, continuing
or converting of any Revolving Loan or any other extension of credit under the Revolving Commitments and (ii) any other date designated by the Applicable Administrative Agent.
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“Weighted Average Life to Maturity”: when applied to any Indebtedness at any date, the number of years obtained by dividing: (a) the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (ii) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (b) the then outstanding principal amount of such Indebtedness.
“Wholly Owned Foreign Subsidiary”: any Wholly Owned Subsidiary that is a Foreign Subsidiary.
“Wholly Owned Subsidiary”: as to any Person, any other Person all of the Capital Stock of which (other than directors’ qualifying shares required by law or de minimis shares held by nominees or others as required by law) is owned by such Person directly and/or through other Wholly Owned Subsidiaries. Unless otherwise qualified, all references to a “Wholly Owned Subsidiary” or to “Wholly Owned Subsidiaries” in this Agreement shall refer to a Wholly Owned Subsidiary or Wholly Owned Subsidiaries of the Borrower.
“Withholding Agent”: the Borrower, any other Loan Party and the Applicable Administrative Agent.
“Write-Down and Conversion Powers”: (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
1.2 Other Definitional Provisions. (a) Unless otherwise specified therein, all terms defined in this Agreement shall have the defined meanings when used in the other Loan Documents or any certificate or other document made or delivered pursuant hereto or thereto.
(b) As used herein and in the other Loan Documents, and any certificate or other document made or delivered pursuant hereto or thereto, (i) accounting terms relating to any Group Member not defined in Section 1.1 and accounting terms partly defined in Section 1.1, to the extent not defined, shall have the respective meanings given to them under GAAP, (ii) the words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”, (iii) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties of every type and nature, and (iv) references to agreements or other Contractual Obligations shall, unless otherwise specified, be deemed to refer to such agreements or Contractual Obligations as amended, supplemented, restated or otherwise modified from time to time (subject to any applicable restrictions hereunder).
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(c) For purposes of this Agreement, Loans may be classified and referred to by Class (e.g., “Term Loans”) or by Type (e.g., “Term Benchmark Term Loans”).
(d) The words “hereof”, “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section, Schedule and Exhibit references are to this Agreement unless otherwise specified.
(e) The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.
(f) The expressions “payment in full,” “paid in full” and any other similar terms or phrases when used herein with respect to any Obligation shall mean the payment in full in cash in immediately available funds of such Obligation (other than contingent surviving indemnity obligations in respect of which no claim or demand has been made and obligations and Letters of Credit which have been Cash Collateralized or as to which other arrangements satisfactory to the applicable Issuing Lender shall have been made).
1.3 Certain Calculations and Tests. (a) Notwithstanding anything to the contrary herein, to the extent that the terms of this Agreement require (x) compliance with any financial ratio or test (including Section 8.1 hereof, any Consolidated Coverage Ratio test, any Consolidated Net Leverage Ratio test, any Consolidated Senior Secured Net Leverage Ratio test, the amount of Consolidated Total Assets or any cap expressed as a percentage of Consolidated Total Assets) or (y) the absence of a Default or Event of Default as a condition to (A) the making of any Limited Condition Acquisition or (B) the consummation of any transaction in connection with any Limited Condition Acquisition (including the assumption or incurrence of Indebtedness or Liens in connection therewith), the determination of whether the relevant condition is satisfied may be made, at the election of the Borrower, at the time of (or on the basis of the financial statements for the most recently ended Test Date at the time of) either (I) the execution of the definitive agreement with respect to such Limited Condition Acquisition or (II) the consummation of such Limited Condition Acquisition, in each case, after giving effect to the relevant Limited Condition Acquisition or other transaction and any related Indebtedness or Liens on a pro forma basis.
(b) Notwithstanding the foregoing, if the Borrower has made an election to test at the time of the execution of the definitive agreement with respect to a Limited Condition Acquisition or the consummation of any transaction in connection with any Limited Condition Acquisition, then, in connection with any subsequent calculation of any ratio or test on or following the relevant determination date, and prior to the earlier of (x) the date on which such Limited Condition Acquisition is consummated or (y) the date that the definitive agreement for such Limited Condition Acquisition is terminated or expires without consummation of such Limited Condition Acquisition, any such ratio or test shall be calculated on (A) a pro forma basis assuming such Limited Condition Acquisition or any transactions in connection therewith (including any incurrence of Indebtedness, Liens and the use of proceeds thereof) has been consummated, and also on (B) a standalone basis without giving effect to such Limited Condition Acquisition and any such transactions in connection therewith.
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(c) Notwithstanding anything to the contrary herein, with respect to any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement under Section 4.17 or any covenant that does not require compliance with a financial ratio (any such amounts, the “Fixed Amounts”) substantially concurrently with any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement under Section 4.17 or the same covenant as such Fixed Amount that requires compliance with a financial ratio (including Section 8.1 hereof, any Consolidated Net Leverage Ratio test or any Consolidated Senior Secured Net Leverage Ratio test) (any such amounts, the “Incurrence-Based Amounts”), it is understood and agreed that the Fixed Amounts being substantially concurrently incurred shall be disregarded in the calculation of the financial ratio or test applicable to such substantially concurrent utilization of the Incurrence-Based Amounts under Section 4.17 or the same covenant as such Fixed Amount.
(d) Notwithstanding anything to the contrary herein, Consolidated EBITDA, Consolidated Net Income and any financial ratios or tests, including the Consolidated Coverage Ratio, Consolidated Net Leverage Ratio and the Consolidated Senior Secured Net Leverage Ratio, shall be calculated in the manner prescribed by this Section 1.3(d) or (e), as applicable; provided that notwithstanding anything to the contrary in clauses (i), (ii), (iii) or (iv) of this Section 1.3(d) or Section 1.3(e), as applicable, when calculating the Consolidated Senior Secured Net Leverage Ratio for purposes of determining actual compliance (and not compliance on a pro forma basis or determining compliance giving pro forma effect to a transaction) with Section 8.1, the events described in this Section 1.3(d) or Section 1.3(e) that occurred subsequent to the end of the period of four consecutive fiscal quarters ended on the most recent Test Date shall not be given pro forma effect:
(i) if since the beginning of such period the Borrower or any Restricted Subsidiary has Incurred any Indebtedness that remains outstanding on such date of determination or if the transaction giving rise to the need to calculate Consolidated EBITDA, Consolidated Interest Expense or any financial ratio or test is an Incurrence of Indebtedness, Consolidated EBITDA, Consolidated Interest Expense or such ratio or test for such period shall be calculated after giving effect on a pro forma basis to such Indebtedness as if such Indebtedness had been Incurred on the first day of such period (except that in making such computation, the amount of Indebtedness under any revolving credit facility outstanding on the date of such calculation shall be computed based on (A) the average daily balance of such Indebtedness during such four fiscal quarters or such shorter period for which such facility was outstanding or (B) if such facility was created after the end of such four fiscal quarters, the average daily balance of such Indebtedness during the period from the date of creation of such facility to the date of such calculation);
(ii) if since the beginning of such period the Borrower or any Restricted Subsidiary has repaid, repurchased, redeemed, defeased or otherwise acquired, retired or discharged any Indebtedness that is no longer outstanding on such date of determination (each, a “Discharge”) or if the transaction giving rise to the need to calculate Consolidated EBITDA,
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Consolidated Interest Expense or any financial ratio or test involves a Discharge of Indebtedness (in each case other than Indebtedness Incurred under any revolving credit facility unless such Indebtedness has been permanently repaid), then Consolidated EBITDA, Consolidated Interest Expense or such financial ratio or test for such period shall be calculated after giving effect on a pro forma basis to such Discharge of such Indebtedness, including with the proceeds of such new Indebtedness, as if such Discharge had occurred on the first day of such period;
(iii) if since the beginning of such period the Borrower or any Restricted Subsidiary shall have disposed of any company, any business or any group of assets constituting an operating unit of a business (any such disposition, a “Sale”), the Consolidated EBITDA for such period shall be reduced by an amount equal to the Consolidated EBITDA (if positive) attributable to the assets that are the subject of such Sale for such period or increased by an amount equal to the Consolidated EBITDA (if negative) attributable thereto for such period and Consolidated Interest Expense for such period shall be reduced by an amount equal to (A) the Consolidated Interest Expense attributable to any Indebtedness of the Borrower or any Restricted Subsidiary repaid, repurchased, redeemed, defeased or otherwise acquired, retired or discharged with respect to the Borrower and its continuing Restricted Subsidiaries in connection with such Sale for such period (including but not limited to through the assumption of such Indebtedness by another Person) plus (B) if the Capital Stock of any Restricted Subsidiary is sold, the Consolidated Interest Expense for such period attributable to the Indebtedness of such Restricted Subsidiary to the extent the Borrower and its continuing Restricted Subsidiaries are no longer liable for such Indebtedness after such Sale, and any financial ratio or test shall be calculated after giving pro forma effect to such Sale as if such Sale had occurred on the first day of such period;
(iv) if since the beginning of such period the Borrower or any Restricted Subsidiary (by merger, consolidation or otherwise) shall have made an Investment in any Person that thereby becomes a Restricted Subsidiary, or otherwise acquired any company, any business or any group of assets constituting an operating unit of a business in a Permitted Acquisition, including any such Investment or acquisition occurring in connection with a transaction causing a calculation to be made hereunder (any such Investment or acquisition, a “Purchase”), Consolidated EBITDA, Consolidated Interest Expense or any financial ratio or test for such period shall be calculated after giving pro forma effect thereto (including the Incurrence of any related Indebtedness) as if such Purchase occurred on the first day of such period;
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(v) if since the beginning of such period any Person became a Restricted Subsidiary or was merged or consolidated with or into the Borrower or any Restricted Subsidiary, and since the beginning of such period such Person shall have Discharged any Indebtedness or made any Sale or Purchase that would have required an adjustment pursuant to clause (ii), (iii) or (iv) of Section 1.3(d) if made by the Borrower or a Restricted Subsidiary since the beginning of such period, Consolidated EBITDA, Consolidated Interest Expense or any financial ratio or test for such period shall be calculated after giving pro forma effect thereto as if such Discharge, Sale or Purchase occurred on the first day of such period; and
(vi) whenever pro forma effect is to be given to any Sale, Purchase or other transaction, or the amount of income or earnings relating thereto and the amount of Consolidated Interest Expense associated with any Indebtedness Incurred or repaid, repurchased, redeemed, defeased or otherwise acquired, retired or discharged in connection therewith, the pro forma calculations in respect thereof (including without limitation in respect of anticipated cost savings, synergies or annualized impact of buyer fee increases relating to any such Sale, Purchase or other transaction) shall be as determined in good faith by the Chief Financial Officer or a Responsible Officer of the Borrower. If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest expense on such Indebtedness shall be calculated as if the rate in effect on the date of determination had been the applicable rate for the entire period (taking into account any Hedge Agreement applicable to such Indebtedness). If any Indebtedness bears, at the option of the Borrower or a Restricted Subsidiary, a rate of interest based on a prime or similar rate, a eurocurrency interbank offered rate or other fixed or floating rate, and such Indebtedness is being given pro forma effect, the interest expense on such Indebtedness shall be calculated by applying such optional rate as the Borrower or such Restricted Subsidiary may designate. If any Indebtedness that is being given pro forma effect was Incurred under a revolving credit facility, the interest expense on such Indebtedness shall be computed based upon the average daily balance of such Indebtedness during the applicable period. Interest on a Capital Lease Obligation shall be deemed to accrue at an interest rate determined in good faith by a responsible financial or accounting officer of the Borrower to be the rate of interest implicit in such Capital Lease Obligation in accordance with GAAP.
(e) For the purposes of calculating Consolidated EBITDA, Consolidated Interest Expense or any financial ratio or test for any period of four consecutive fiscal quarters (each, a “Reference Period”), (i) if at any time during such Reference Period the Borrower or any Restricted Subsidiary shall have made any Material Disposition or designated any Restricted Subsidiary as an Unrestricted Subsidiary, the Consolidated EBITDA for such Reference Period shall be reduced by an amount equal to the Consolidated EBITDA (if positive) attributable to the property that is the subject of such Material Disposition or designation for such Reference Period or increased by an amount equal to the Consolidated EBITDA (if negative) attributable thereto for such Reference Period and (ii) if during such Reference Period the Borrower or any Restricted Subsidiary shall have made a Material Acquisition or designated any Unrestricted Subsidiary as a Restricted Subsidiary, Consolidated EBITDA for such Reference Period shall be
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calculated after giving pro forma effect thereto, as if such Material Acquisition or designation occurred on the first day of such Reference Period; provided
that, notwithstanding anything to the contrary contained herein, with respect to the Acquisition (a) Consolidated
EBITDA for the fiscal quarters ended June 30, 2019, March 31, 2019 and December 31, 2018 shall be as set forth in the definition of Consolidated EBITDA and (b) Consolidated Interest Expense for the fiscal
quarter periods ending on September 30, 2019, December 31, 2019 and March 31, 2020 shall be calculated as set forth in the definition of Consolidated Interest Expense. As used herein, “Material Acquisition” means any acquisition of
property or series of related acquisitions of property that (a) constitutes assets comprising all or substantially all of an operating unit of a business or constitutes all or substantially all of the common stock of a Person and
(b) involves the payment of consideration by the Borrower and its Restricted Subsidiaries in excess of $10,000,00050,000,000; and “Material Disposition” means any Disposition of property or series of related Dispositions
of property that yields gross proceeds to the Borrower or any of its Restricted Subsidiaries in excess of $10,000,00050,000,000.
1.4 Divisions. For all purposes under the Loan Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws): (a) any reference 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 and (b) 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).
1.5 Interest Rates; SOFR. The Facilities Administrative Agents do not warrant, nor accept responsibility, nor shall the Facilities Administrative Agents have any liability with respect to the administration, submission or any other matter related to any reference rate referred to herein (including the rates in the definition of “SOFR”) or with respect to any alternative or successor rates or replacement rates of any of the reference rates referred to herein, including, without limitation, whether the composition or characteristics of any such alternative, successor or replacement reference rate, as it may or may not be adjusted pursuant to Section 4.7(b), will be similar to, or produce the same value or economic equivalence of, the applicable reference rate referred to herein or have the same volume or liquidity as it did prior to its discontinuance or unavailability.
1.6 Cashless Rollovers. Notwithstanding anything to the contrary contained in this Agreement or in any other Loan Document, to the extent that any Lender extends the maturity date of, or replaces, renews or refinances, any of its then-existing Loans with Incremental Loans, Refinancing Term Loans, Refinancing Revolving Loans, Extended Loans or loans incurred under a new credit facility, in each case, to the extent such extension, replacement, renewal or refinancing is effected by means of a “cashless roll” by such Lender, such extension, replacement, renewal or refinancing shall be deemed to comply with any requirement hereunder or any other Loan Document that such payment be made “in immediately available funds”, “in cash” or any other similar requirement.
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1.7 Compliance with Certain Sections. For purposes of determining compliance with Section 8, in the event that any Lien, Investment, Indebtedness (whether at the time of incurrence or upon application of all or a portion of the proceeds thereof), Disposition, Restricted Payment, Affiliate transaction, Contractual Obligation, prepayment of Indebtedness or other transaction meets the criteria of one, or more than one, of the “baskets” or categories of transactions then permitted pursuant to any clause or subsection of a particular covenant under Section 8, such transaction (or portion thereof), subject to the Unrestricted Subsidiary Cap Provision, at any time shall be permitted under one or more of such clauses at the time of such transaction or any later time from time to time, in each case, as determined by the Borrower in its sole discretion at such time and thereafter may be reclassified by the Borrower in any manner not expressly prohibited by this Agreement.
1.8 Exchange Rates; Currency Equivalents; Basket Calculations.
(a) The Applicable Administrative Agent shall determine the Exchange Rates as of each Valuation Date to be used for calculating Dollar Equivalent amounts of extensions of credit and amounts outstanding hereunder denominated in other Approved Currencies. Such Exchange Rates shall become effective as of such Valuation Date and shall be the Exchange Rates employed in converting any amounts between the applicable currencies until the next Valuation Date to occur. Except for purposes of financial statements delivered by the Borrower hereunder or 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 of such currency as so determined by the Applicable Administrative Agent.
(b) Whenever in this Agreement in connection with a borrowing, conversion, continuation or prepayment of a Term Benchmark Loan, an amount, such as a required minimum or multiple amount, is expressed in Dollars, but such borrowing, Term Benchmark Loan is denominated in another Approved Currency, such amount shall be the relevant Foreign Currency Equivalent of such Dollar amount (rounded to the nearest unit of such other Approved Currency, with 0.5 or a unit being rounded upward), as determined by the Applicable Administrative Agent.
(c) For purposes of determining compliance with the Consolidated Coverage Ratio, Consolidated Net Leverage Ratio and Consolidated Senior Secured Net Leverage Ratio, the amount of any Indebtedness denominated in any currency other than Dollars will be converted into Dollars based on the relevant currency exchange rate in effect on the date of the financial statements on which the applicable Consolidated EBITDA is calculated.
(d) For the avoidance of doubt, in the case of a Loan denominated in an Approved Currency other than Dollars, except as expressly provided herein, all interest and fees shall accrue and be payable thereon based on the actual amount outstanding in such Approved Currency (without any translation into the Dollar Equivalent thereof).
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SECTION 2. AMOUNT AND TERMS OF TERM LOANS
2.1 Term Loans. Subject to the terms and conditions hereof, (a) each Initial Term Lender madewill make a Term Loan denominated in Dollars to the Borrower on the
Closing
Fourth Amendment Effective Date in the amount of such Initial Term
Lender’s Initial Term Commitment on the ClosingFourth Amendment
Effective Date and (b) each Term Lender that holds Term Commitments under any Incremental Term Loan Facility agrees to make a Term Loan to the Borrower as and when set forth in the
applicable Incremental Commitment Agreement. Term Loans shall be either Term Benchmark Loans or Base Rate Loans, as determined by the Borrower and notified to the
Term Administrative Agent in accordance with Sections 2.2 and 4.3.
The Initial Term Commitments will automatically terminated
terminate upon funding of the Initial Term Loans on the Closing
Fourth Amendment Effective Date.
2.2 Procedure for the Initial Term Loan Borrowing. (a) The Borrower shall give the Term Administrative Agent irrevocable notice, which must be received by the
Term Administrative Agent prior to 5:00 p.m., New York City time,
one Business Day prior to the anticipated
ClosingFourth Amendment
Effective Date, requesting that the Initial Term Lenders make Initial Term Loans on the ClosingFourth Amendment Effective Date and specifying the amount to be borrowed. Upon
receipt of such notice, the Term Administrative Agent shall promptly
notify each Initial Term Lender thereof. Not later than 1:00 p.m., New York City time, on the ClosingFourth
Amendment Effective Date, each Initial Term Lender shall make available to the
Term
Administrative Agent at the Funding Office an amount in immediately available funds equal to the Initial Term Loans to be made by such Initial Term Lender.
(b) The Term Administrative Agent shall credit the account of the Borrower on the books of such office of the Term Administrative Agent with the aggregate amounts made available to the Term Administrative Agent by the Initial Term Lenders in immediately available funds.
2.3 Repayment of Initial Term Loans. The Initial Term Loans shall mature and be payable in
full on the date that is seven (7) years after the Closing
DateFebruary 28, 2033 (such date, the “Term
Loan Maturity Date”), and shall also be repayable prior to that date in consecutive quarterly installments, each of which shall be in an amount equal to such Lender’s Term Percentage of 0.25% of the original aggregate principal
amount of the Initial Term Loans outstanding on the
FirstFourth Amendment Effective Date, due commencing on
JanuaryJuly 1,
20202026 and continuing on the first day of each consecutive April, July, October and January thereafter.
SECTION 3. AMOUNT AND TERMS OF REVOLVING COMMITMENTS
3.1 Revolving Commitments. (a) Subject to the terms and conditions hereof, each Revolving Lender severally agrees to make revolving credit loans (“Revolving Loans”) denominated in Dollars or any other Approved Currency to the Borrower from time to time during the Revolving Commitment Period in an aggregate principal amount at any one time outstanding which, when added to such Lender’s Revolving Extensions of Credit then outstanding, does not exceed the amount of such Lender’s Revolving Commitment. Revolving Loans that are repaid may be reborrowed during the Revolving Commitment Period, subject to the terms and conditions hereof. The Revolving Loans may from time to time be Term Benchmark Loans or, in the case of Loans denominated in Pesos, Daily RFR Loans or, in the case of Loans denominated in Dollars, Base Rate Loans, as determined by the Borrower and notified to the Revolving Administrative Agent in accordance with Sections 3.2 and 4.3.
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(b) The Borrower shall repay all outstanding Revolving Loans on the Revolving Termination Date.
3.2 Procedure for Revolving Loan Borrowing. The Borrower may borrow under the Revolving Commitments during the Revolving
Commitment Period on any Business Day; provided, that the Borrower shall give the Revolving Administrative Agent irrevocable notice, which must be received by the Revolving Administrative Agent prior to (a) 1:00 p.m., New York City time, three
Business Days prior to the requested Borrowing Date, in the case of Term Benchmark Loans
or, (b) 11:00 a.m., New York City time, on the
requested Borrowing Date, in the case of Base Rate Loans or (c) 10:00 a.m., New York City time, four (4) Business Days prior
to the requested Borrowing Date, in the case of Daily RFR Loans, and which shall specify (i) the amount and Type of Revolving Loans to be borrowed, (ii) the requested Borrowing Date and (iii)
in the case of Term Benchmark Loans, the respective amounts of each such Type of Loan, the respective lengths of the initial Interest Period therefor and the currency thereof. Each borrowing under the Revolving Commitments shall be in an amount
equal to (x) in the case of Base Rate Loans, $500,000 or a whole multiple of $100,000 in excess thereof and (y) in the case of Term Benchmark Loans, $5,000,000 or a whole multiple of $1,000,000 in excess thereof. Upon receipt of any such notice from
the Borrower, the Revolving Administrative Agent shall promptly notify each Revolving Lender thereof. Each Revolving Lender will make the amount of its pro rata share of each borrowing available to the Revolving Administrative Agent for the
account of the Borrower at the Funding Office prior to (i) in the case of Term Benchmark Loans, 12:00 noon, New York City time, or (ii) in the case of Base Rate Loans, 1:00 p.m., New York City time, and, in each case, on the Borrowing Date requested
by the Borrower in funds immediately available to the Revolving Administrative Agent. Such amounts will then be made available to the Borrower by the Revolving Administrative Agent crediting an account of the Borrower maintained by the Revolving
Administrative Agent, in like amounts and funds as received by the Revolving Administrative Agent.
3.3 Swingline Commitment. (a) Subject to the terms and conditions hereof, the Swingline Lender may in its sole discretion make a portion of the credit otherwise available to the Borrower under the Revolving Commitments from time to time during the Revolving Commitment Period available by making swing line loans in Dollars (“Swingline Loans”) to the Borrower. After making a requested Swingline Loan, the sum of (i) the Swingline Lender’s aggregate principal amount of all Revolving Loans, (ii) the Revolving Percentage of the L/C Obligations and (iii) all outstanding Swingline Loans may exceed the Swingline Lender’s Revolving Commitment; provided, that (i) the aggregate principal amount of Swingline Loans outstanding at any time shall not exceed the Swingline Commitment, (ii) the Borrower shall not request any Swingline Loan if, after giving effect to the making of such Swingline Loan, the aggregate amount of the Available Revolving Commitments would be less than zero, and (iii) the Swingline Lender shall not be required to make any Swingline Loans under this Section 3.3 at any time when an Event of Default has occurred and is continuing. Subject to the foregoing, Swingline Loans may be repaid and reborrowed from time to time.
(b) Swingline Loans shall be Base Rate Loans only.
(c) The Borrower shall repay all outstanding Swingline Loans (i) on each Borrowing Date for Revolving Loans, (ii) on the Revolving Termination Date, (iii) on a weekly basis as determined by the Swingline Lender and (iv) on demand by the Swingline Lender at any time when an Event of Default has occurred and is continuing.
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3.4 Procedure for Swingline Borrowing; Refunding of Swingline Loans; Successor Swingline Lenders. (a) Whenever the Borrower desires that the Swingline Lender make Swingline Loans it shall give the Swingline Lender irrevocable notice not later than 1:00 p.m., New York City time, on the proposed Borrowing Date, specifying (i) the amount to be borrowed and (ii) the requested Borrowing Date (which shall be a Business Day during the Revolving Commitment Period) and such notice shall constitute certification by the Borrower to the Swingline Lender that the unused portion of the Revolving Facility is greater than or equal to the Swingline Loans and the Swingline Lender shall be entitled to rely conclusively on such certification. Each borrowing of Swingline Loans shall be in an amount equal to $100,000 or a whole multiple of $100,000 in excess thereof. Not later than 3:00 p.m., New York City time, on the Borrowing Date specified in a notice in respect of Swingline Loans, the Swingline Lender shall make available to the Revolving Administrative Agent at the Funding Office an amount in immediately available funds equal to the amount of the Swingline Loan to be made by the Swingline Lender. The Revolving Administrative Agent shall make the proceeds of such Swingline Loan available to the Borrower on such Borrowing Date by depositing such proceeds in the account of the Borrower with the Revolving Administrative Agent on such Borrowing Date in immediately available funds.
(b) The Swingline Lender may at any time, on behalf of the Borrower (which hereby irrevocably authorizes the Swingline Lender to do so), request a borrowing of Revolving Loans in an amount equal to the aggregate outstanding Swingline Loans and apply the proceeds of such borrowing to the repayment of the Swingline Loans. Each Revolving Lender agrees to fund its Revolving Percentage of any such borrowing so requested in immediately available funds, not later than 10:00 a.m., New York City time, on the first Business Day after the date of such borrowing is requested. The proceeds of such Revolving Loans shall immediately be made available by the Revolving Administrative Agent to the Swingline Lender for application to the repayment of Swingline Loans. The Borrower agrees to pay, and irrevocably authorizes the Swingline Lender and Revolving Administrative Agent to charge the Borrower’s accounts with the Swingline Lender or Revolving Administrative Agent as necessary to pay, all outstanding Swingline Loans to the extent amounts received from the Revolving Lenders upon any such request are not sufficient to repay the outstanding Swingline Loans.
(c) If the Swingline Lender at any time determines that it is precluded from making a request for a borrowing of Revolving Loans pursuant to Section 3.4(b), whether by reason of the occurrence of a Default described in Section 9(f) or otherwise for any reason, each Revolving Lender hereby purchases from the Swingline Lender an undivided participating interest in the then outstanding Swingline Loans (a “Swingline Participation Amount”) and shall promptly upon demand of the Swingline Lender complete such purchase at par by paying to the Swingline Lender an amount equal to such Revolving Lender’s Revolving Percentage of the aggregate outstanding Swingline Loans.
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(d) Whenever, at any time after the Swingline Lender has received from any Revolving Lender such Lender’s Swingline Participation Amount, the Swingline Lender receives any payment on account of the Swingline Loans, the Swingline Lender will distribute to such Lender its Swingline Participation Amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s participating interest was outstanding and funded and, in the case of principal and interest payments, to reflect such Lender’s pro rata portion of such payment if such payment is not sufficient to pay the principal of and interest on all Swingline Loans then due); provided, that if any such payment is required to be returned, such Revolving Lender will return to the Swingline Lender any portion thereof previously distributed to it by the Swingline Lender.
(e) Each Revolving Lender’s obligation to make the Loans referred to in Section 3.4(b) and to purchase participating interests pursuant to Section 3.4(c) shall be absolute and unconditional and shall not be affected by any circumstance, including: (i) any setoff, counterclaim, recoupment, defense or other right that such Revolving Lender or the Borrower may have against the Swingline Lender, the Borrower or any other Person for any reason whatsoever; (ii) the occurrence or continuance of any Default or the failure to satisfy any of the conditions specified in Section 6; (iii) any adverse change in the condition (financial or otherwise) of the Borrower; (iv) any breach of this Agreement or any other Loan Document by the Borrower, any other Loan Party or any other Revolving Lender; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
(f) The Swingline Lender may be replaced at any time by written agreement among the Borrower, the Revolving Administrative Agent, the replaced Swingline Lender and the successor Swingline Lender. The Revolving Administrative Agent shall notify the Lenders of any such replacement of a Swingline Lender. At the time any such replacement shall become effective, the Borrower shall pay all unpaid interest accrued for the account of the replaced Swingline Lender pursuant to Section 4.5(b). From and after the effective date of any such replacement, (x) the successor Swingline Lender shall have all the rights and obligations of the replaced Swingline Lender under this Agreement with respect to Swingline Loans made thereafter and (y) references herein to the term “Swingline Lender” shall be deemed to refer to such successor or to any previous Swingline Lender, or to such successor and all previous Swingline Lenders, as the context shall require. After the replacement of a Swingline Lender hereunder, the replaced Swingline Lender shall remain a party hereto and shall continue to have all the rights and obligations of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to its replacement, but shall not be required to make additional Swingline Loans.
(g) Subject to the appointment and acceptance of a successor Swingline Lender, any Swingline Lender may resign as a Swingline Lender at any time upon thirty days’ prior written notice to the Revolving Administrative Agent, the Borrower and the Lenders, in which case, such Swingline Lender shall be replaced in accordance with Section 3.4(f) above.
3.5 Commitment Fees, etc. (a) The Borrower agrees to pay to
the Revolving Administrative Agent for the account of each Revolving Lender a commitment fee for the period from and including the ClosingFourth Amendment Effective Date to the last day of the Revolving Commitment
Period, computed at the Commitment Fee Rate on the daily amount of the Available Revolving Commitment of such Lender during the period for which payment is made, payable quarterly in arrears on the first day of each April, July, October and January
and on the Revolving Termination Date, commencing on the first of such dates to occur after the ClosingFourth Amendment Effective Date.
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(b) The Borrower agrees to pay to each of the Facilities Administrative Agents the fees in the amounts and on the dates agreed to in writing by the Borrower and such Facilities Administrative Agent.
3.6 Termination or Reduction of Revolving Commitments. The Borrower shall have the right, upon not less than three Business Days’ notice to the Revolving Administrative Agent, to terminate the Revolving Commitments or, from time to time, to reduce the amount of the Revolving Commitments, which notice may be conditioned upon the occurrence of any other transaction and, if such condition is not satisfied on or prior to the date specified in such notice, may be revoked by the Borrower; provided, that no such termination or reduction of Revolving Commitments shall be permitted if, after giving effect thereto and to any prepayments of the Revolving Loans and Swingline Loans made on the effective date thereof, the Total Revolving Extensions of Credit would exceed the Total Revolving Commitments. Any such reduction shall be in an amount equal to $500,000, or a whole multiple thereof or the Total Revolving Commitment, and shall reduce permanently the Revolving Commitments then in effect. Unless previously terminated in accordance with the terms hereof, the Revolving Commitments shall automatically terminate on the Revolving Termination Date.
3.7 Letter of Credit Commitment. (a) Subject to the terms and conditions hereof, each Issuing Lender (other than any
Issuing Lender referred to in clause (b) of the definition of “Issuing Lender”), in reliance on the agreements of the other Revolving Lenders set forth in Section 3.10(a), agrees to issue, on a sight basis, letters of credit
(“Letters of Credit”) for the account of the Borrower (or for the account of any Subsidiary of the Borrower if the Borrower requests a Letter of Credit for such Subsidiary’s account; provided, that notwithstanding
that a Letter of Credit may be issued or outstanding hereunder in support of any obligations of, or for the account of, a Subsidiary of the Borrower, the Borrower shall be obligated to reimburse each Issuing Lender hereunder for any and all drawings
under such Letter of Credit; provided, further, that the Borrower shall act as the applicant of each Letter of Credit on behalf of a Subsidiary) on any Business Day at any time and from time to time until the date that is ten days
prior to the Revolving Termination Date, in such form as may be approved from time to time by such Issuing Lender; provided, that the applicable Issuing Lender shall have no obligation to cause any Letter of Credit to be issued if, after
giving effect to such issuance, (i) the L/C Obligations would exceed the Total L/C Commitments, (ii) the aggregate amount of the Available Revolving Commitments would be less than zero, (iii) [reserved] or (iv) the available balance
of all outstanding Letters of Credit issued by such Issuing Lender would exceed such Issuing Lender’s L/C Commitment; provided, that each Issuing Lender, may at its sole discretion issue a Letter of Credit although after giving effect
to such issuance the stated amount of all outstanding Letters of Credit issued by such Issuing Lender would exceed its L/C Commitment, so long as after giving effect to such issuance the L/C Obligations would not exceed the Total L/C Commitments; provided,
further, that Barclays Bank PLC shall be under no obligation to issue
commercial or trade Letters of Credit. In the event of any conflict between the terms and conditions of this Agreement and the terms and conditions of any Application or other agreement submitted by the Borrower to, or entered
into by the Borrower with, the applicable Issuing Lender relating to any Letter of Credit, the terms and conditions of this Agreement shall control. Each Letter of Credit shall be denominated in Dollars and expire no later than the earlier of (i)
the first anniversary of its date of issuance and (ii) the date that is five days prior to the Revolving Termination Date; provided, that any Letter of Credit with a one-year term may provide, with
the consent of the applicable Issuing Lender, for the
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automatic extension thereof for additional periods of up to one year (which shall in no event extend beyond the date referred to in clause (ii) above). If, as of the Revolving Termination Date, any Letter of Credit for any reason remains outstanding, the Borrower shall, in each case, immediately Cash Collateralize the then undrawn amount of all outstanding Letters of Credit with all such Cash Collateral or Backstop L/Cs denominated in Dollars. “Cash Collateralize” shall mean to (i) pledge and deposit with or deliver to the Revolving Administrative Agent, for the benefit of the applicable Issuing Lender and the Lenders, as collateral for the L/C Obligations, cash or deposit account balances of deposit accounts under the sole dominion and control of the Revolving Administrative Agent on terms reasonably satisfactory to the Revolving Administrative Agent in an amount equal to 100% of the total amount then available under the applicable Letters of Credit pursuant to documentation in form and substance reasonably satisfactory to the Revolving Administrative Agent and such Issuing Lender (which documents are hereby consented to by the Lenders) (“Cash Collateral”) or (ii) deliver to the applicable Issuing Lender one or more backstop letters of credit in form and substance reasonably acceptable to, and issued by financial institutions reasonably acceptable to the applicable Issuing Lender that has issued such Letter of Credit and the Revolving Administrative Agent (each such letter of credit, a “Backstop L/C”). Derivatives of such above defined terms shall have corresponding meanings.
(b) No Issuing Lender shall at any time be obligated to cause any Letter of Credit to be issued hereunder if such issuance would conflict with, or cause such Issuing Lender or any L/C Participant to exceed any limits imposed by, any applicable Requirement of Law or such Issuing Lender’s internal policies relating to the issuance of Letters of Credit.
(c) The Borrower may, at any time and from time to time with the consent of the Revolving Administrative Agent (which consent shall not be unreasonably withheld or delayed) and such Lender being so designated, designate one or more additional Lenders to act as an issuing lender under the terms of this Agreement. Any Lender designated as an issuing lender pursuant to this Section 3.7(c) shall be deemed to be an “Issuing Lender” (in addition to being a Lender) in respect of Letters of Credit issued or to be issued by such Lender, and, with respect to such Letters of Credit, such term shall thereafter apply to the other Issuing Lender or Issuing Lenders and such Lender.
(d) The Borrower hereby agrees that each Existing Letter of Credit shall be deemed to be a Letter of Credit under this Agreement as of the date on which the Lender that issued such Existing Letter of Credit becomes a Revolving Lender hereunder.
(e) Any Issuing Lender may be replaced at any time by written agreement among the Borrower, the Revolving Administrative Agent, the replaced Issuing Lender and the successor Issuing Lender. The Revolving Administrative Agent shall notify the Lenders of any such replacement of an Issuing Lender. At the time any such replacement shall become effective, the Borrower shall pay all unpaid fees accrued for the account of the replaced Issuing Lender pursuant to Section 3.9. From and after the effective date of any such replacement, (x) the successor Issuing Lender shall have all the rights and obligations of the replaced Issuing Lender under this Agreement with respect to Letters of Credit to be issued thereafter and (y) references herein to the term “Issuing Lender” shall be deemed to refer to such successor or to any previous Issuing Lender, or to such successor and all previous Issuing Lenders, as the context shall require. After the replacement of an Issuing Lender hereunder, the replaced Issuing Lender shall remain a party hereto and shall continue to have all the rights and obligations of an Issuing Lender under this Agreement with respect to Letters of Credit issued by it prior to such replacement, but shall not be required to issue additional Letters of Credit or amend or extend any outstanding Letter of Credit issued by it.
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(f) Any Issuing Lender may resign as an Issuing Lender at any time upon thirty days’ prior written notice to the Revolving Administrative Agent and the Borrower, in which case, such Issuing Lender may be replaced in accordance with Section 3.7(e).
3.8 Procedure for Issuance of Letters of Credit. (a) The Borrower may from time to time request that any Issuing Lender (other than any Issuing Lender referred to in clause (b) of the definition of “Issuing Lender”) issue a Letter of Credit by delivering to such Issuing Lender at its address for notices specified herein an Application therefor, completed to the reasonable satisfaction of such Issuing Lender at least five (5) Business Days, or such shorter period as may be agreed to by the Issuing Lender, in advance of the proposed date of issuance, and such other certificates, documents and other papers and information as such Issuing Lender may reasonably request. Upon receipt of any Application, such Issuing Lender will notify the Revolving Administrative Agent of the amount, the beneficiary and the requested expiration of the requested Letter of Credit, and upon receipt of written confirmation from the Revolving Administrative Agent that after giving effect to the requested issuance, none of the statements specified in clauses (i) through (iv) of the first sentence of Section 3.7(a) would be true, such Issuing Lender will process such Application and the certificates, documents and other papers and information delivered to it in connection therewith to be processed in accordance with its customary policies and procedures and shall promptly issue the Letter of Credit requested thereby (but in no event shall any Issuing Lender be required to issue any Letter of Credit earlier than three Business Days after its receipt of the Application therefor and all such other certificates, documents and other papers and information relating thereto) by issuing the original of such Letter of Credit to the beneficiary thereof or as otherwise may be agreed to by such Issuing Lender and the Borrower. Such Issuing Lender shall furnish a copy of such Letter of Credit to the Borrower (with a copy to the Revolving Administrative Agent) promptly following the issuance thereof. Such Issuing Lender shall promptly furnish to the Revolving Administrative Agent, which shall in turn promptly furnish to the Lenders, notice of the issuance of each Letter of Credit (including the amount thereof).
(b) The making of each request for a Letter of Credit by the Borrower shall be deemed to be a representation and warranty by the Borrower that such Letter of Credit may be issued in accordance with, and will not violate the requirements of, Section 3.7(a) or any Requirement of Law applicable to the Loan Parties. Unless each Issuing Lender has received notice from the Revolving Administrative Agent before it issues a Letter of Credit that one or more of the applicable conditions specified in Section 6.2 are not satisfied, or that the issuance of such Letter of Credit would violate Section 3.7, then such Issuing Lender may issue the requested Letter of Credit for the account of the Borrower in accordance with its customary policies and procedures.
3.9 Fees and Other Charges. (a) The Borrower will pay a fee on the undrawn and unexpired amount of each Letter of Credit at a per annum rate equal to the Applicable Margin then in effect with respect to Term Benchmark Loans under the Revolving Facility, shared ratably among the Revolving Lenders and payable quarterly in arrears on each L/C Fee Payment Date after the issuance date. In addition, the Borrower shall pay to each Issuing Lender for its own account a fronting fee on the undrawn and unexpired amount of each Letter of Credit issued by such Issuing Lender computed at the rate of 0.125% per annum and payable quarterly in arrears on each L/C Fee Payment Date.
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(b) In addition to the foregoing fees, the Borrower shall pay or reimburse each Issuing Lender for such normal and customary costs and expenses as are incurred or charged by such Issuing Lender in issuing, negotiating, effecting payment under, amending or otherwise administering any Letter of Credit.
3.10 Letter of Credit Participations. (a) Each Issuing Lender irrevocably agrees to grant and hereby grants to each L/C Participant, and, to induce such Issuing Lender to issue Letters of Credit hereunder, each L/C Participant irrevocably agrees to accept and purchase and hereby accepts and purchases from such Issuing Lender, on the terms and conditions set forth below, for such L/C Participant’s own account and risk an undivided interest equal to such L/C Participant’s Revolving Percentage in such Issuing Lender’s obligations and rights under and in respect of each Letter of Credit issued hereunder and the amount of each drawing paid by such Issuing Lender thereunder. Each L/C Participant unconditionally and irrevocably agrees with each Issuing Lender that, if a drawing is paid under any Letter of Credit for which such Issuing Lender is not reimbursed in full by the Borrower in accordance with the terms of this Agreement, such L/C Participant shall pay to the Revolving Administrative Agent for the account of such Issuing Lender upon demand of such Issuing Lender an amount equal to such L/C Participant’s Revolving Percentage of the amount of such drawing, or any part thereof, that is not so reimbursed and the Revolving Administrative Agent shall promptly forward such amounts to such Issuing Lender.
(b) If any amount required to be paid by any L/C Participant to the Revolving Administrative Agent for the account of any Issuing Lender pursuant to Section 3.10(a) in respect of any unreimbursed portion of any payment made by such Issuing Lender under any Letter of Credit is paid to the Revolving Administrative Agent for the account of such Issuing Lender within three Business Days after the date such payment is due, such L/C Participant shall pay to the Revolving Administrative Agent for the account of such Issuing Lender on demand an amount equal to the product of (i) such amount, times (ii) the daily average Federal Funds Effective Rate during the period from and including the date such payment is required to the date on which such payment is immediately available to such Issuing Lender, times (iii) a fraction the numerator of which is the number of days that elapse during such period and the denominator of which is 360. If any such amount required to be paid by any L/C Participant pursuant to Section 3.10(a) is not made available to the Revolving Administrative Agent for the account of any Issuing Lender by such L/C Participant within three Business Days after the date such payment is due, such Issuing Lender shall be entitled to recover from such L/C Participant, on demand, such amount with interest thereon calculated from such due date at the rate per annum applicable to Base Rate Loans under the Revolving Facility. A certificate of any Issuing Lender submitted to any L/C Participant with respect to any amounts owing under this Section 3.10 shall be conclusive in the absence of manifest error.
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(c) Whenever, at any time after any Issuing Lender has made payment under any Letter of Credit and has received from any L/C Participant its pro rata share of such payment in accordance with Section 3.10(a), the Revolving Administrative Agent or any Issuing Lender receives any payment related to such Letter of Credit (whether directly from the Borrower or otherwise, including proceeds of collateral applied thereto by such Issuing Lender), or any payment of interest on account thereof, the Revolving Administrative Agent or such Issuing Lender, as the case may be, will distribute to such L/C Participant its pro rata share thereof; provided, that if any such payment received by Revolving Administrative Agent or such Issuing Lender, as the case may be, shall be required to be returned by the Revolving Administrative Agent or such Issuing Lender, such L/C Participant shall return to the Revolving Administrative Agent for the account of such Issuing Lender the portion thereof previously distributed to such L/C Participant.
3.11 Reimbursement Obligation of the Borrower. The Borrower agrees to reimburse each Issuing Lender within one Business Day after such Issuing Lender notifies the Borrower of the date and amount of a drawing presented under any Letter of Credit paid by such Issuing Lender (or on the next Business Day, if such notice is received any time after 11:00 a.m., New York time, on such day) for the amount of such drawing so paid. Each such payment shall be made to such Issuing Lender at its address for notices referred to herein in Dollars and in immediately available funds. Interest shall be payable on any such amounts from the date on which the relevant drawing is paid until payment in full at the rate set forth in (i) until the Business Day next succeeding the date of the relevant notice, Section 4.5(b) and (ii) thereafter, Section 4.5(c).
3.12 Obligations Absolute. The Borrower’s obligations under Section 3.11 shall be absolute and unconditional under any and all circumstances and irrespective of any setoff, counterclaim or defense to payment that the Borrower may have or have had against any Issuing Lender, any beneficiary of a Letter of Credit or any other Person. The Borrower also agrees with each Issuing Lender that such Issuing Lender shall not be responsible for, and the Borrower’s Reimbursement Obligations under Section 3.11 shall not be affected by, among other things, (i) the validity or genuineness of documents or of any endorsements thereon, even though such documents shall in fact prove to be invalid, fraudulent or forged, or any dispute between or among the Borrower and any beneficiary of any Letter of Credit or any other party to which such Letter of Credit may be transferred or purportedly transferred or any claims whatsoever of the Borrower against any beneficiary of such Letter of Credit or any such transferee or purported transferee, (ii) payment by each Issuing Lender under a Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit, or (iii) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 3.12, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder. No Issuing Lender shall be liable for any error, omission, interruption or delay in transmission, dispatch or delivery of any message or advice, however transmitted, in connection with any Letter of Credit, except for errors or omissions found by a final and non-appealable decision of a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of such Issuing Lender or any Related Person of such Issuing Lender. The Borrower agrees that any action taken by any Issuing Lender under or in connection with any Letter of Credit or the related drafts or documents, if done in the absence of gross negligence or willful misconduct and in accordance with the standards of care specified in the Uniform Commercial Code of the State of New York, shall be binding on the Borrower and shall not result in any liability of such Issuing Lender to the Borrower.
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3.13 Letter of Credit Payments. If a compliant drawing shall be presented for payment under any Letter of Credit, the applicable Issuing Lender that issued such Letter of Credit shall promptly notify the Revolving Administrative Agent who in turn shall promptly notify the Borrower of the date and amount thereof. The responsibility of each Issuing Lender to the Borrower in connection with any drawing presented for payment under any Letter of Credit issued by such Issuing Lender shall, in addition to any payment obligation expressly provided for in such Letter of Credit, be limited to causing the applicable Issuing Lender that has issued such Letter of Credit to determine that the documents (including each drawing, if any) delivered under such Letter of Credit in connection with such presentment are substantially in conformity with such Letter of Credit.
SECTION 4. GENERAL PROVISIONS APPLICABLE TO LOANS AND
LETTERS OF CREDIT
4.1 Optional Prepayments. (a) The Borrower may at any time and from time to time prepay the Loans, in whole or in part, without premium or penalty, upon irrevocable notice delivered to the Applicable Administrative Agent (i) no later than 1:00 p.m., New York City time (or such later time as the Applicable Administrative Agent may agree in its sole discretion), (x) three Business Days prior thereto in the case of Term Benchmark Loans denominated in Dollars, (y) four Business Days prior thereto in the case of Term Benchmark Loans denominated in any Approved Currency other than Dollars and (ii) and no later than 1:00 p.m., New York City time (or such later time as the Applicable Administrative Agent may agree in its sole discretion), one Business Day prior thereto in the case of Loans that are Base Rate Loans, in each case which notice shall specify the date and amount of prepayment and whether the prepayment is of Term Benchmark Loans or Base Rate Loans and the currency of the Loan being repaid; provided, that if a Term Benchmark Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 4.11. Upon receipt of any such notice the Applicable Administrative Agent shall promptly notify each relevant Lender thereof. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein (provided, that a notice of prepayment may state that such notice is conditioned upon the effectiveness of other credit facilities or other financing or events, in which case such notice may be revoked by the Borrower (by notice to the Applicable Administrative Agent on or prior to the specified date) if such condition is not satisfied), together with (except in the case of Revolving Loans that are Base Rate Loans and Swingline Loans) accrued interest to such date on the amount prepaid. Partial prepayments of Term Loans and Revolving Loans shall be in an aggregate principal amount of $500,000 or a whole multiple thereof. Partial prepayments of Swingline Loans shall be in an aggregate principal amount of $100,000 or a whole multiple thereof.
(b) Any optional prepayments of the Term Facilities shall be credited to the remaining scheduled installments of the Term Facilities thereof as specified by the Borrower or, if not specified, pro rata to the remaining installments of each of the Facilities on a pro rata basis.
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(c) Notwithstanding the foregoing, a prepayment premium shall apply to any prepayment of
Initial Term Loans occurring on or prior to the six month anniversary of the
FirstFourth Amendment Effective Date from the proceeds of a Repricing Transaction in an amount equal to 1.00% of the principal amount of any Term Loans subject to such prepayment or, in the case of any Repricing Transaction
effected through an amendment, the principal amount of Term Loans outstanding immediately prior to such amendment of any Term Lender that is replaced in connection with such amendment pursuant to the Borrower’s exercise of its mandatory
assignment rights to replace a Lender under Section 4.13.
4.2 Mandatory Prepayments. (a) If at any time after the Closing Date any Group Member receives any Net Cash Proceeds from the Incurrence of any Indebtedness (other than Excluded Indebtedness), the Borrower shall prepay the Term Loans on a pro rata basis on the date of such receipt in an amount equal to 100% of such Net Cash Proceeds; provided, that if at the time of such prepayment such Group Member is required to prepay any Other Applicable Indebtedness (to the extent and if required by the terms of the definitive documentation governing such other Indebtedness), then the Borrower may apply 100% of such Net Cash Proceeds to prepay the Term Loans and prepay, redeem or repurchase such Other Applicable Indebtedness on a pro rata basis on the date of such receipt; provided, further, that (A) any prepayment, redemption or repurchase of such Other Applicable Indebtedness shall be at par (or less than par), (B) the portion of such prepayment amount allocated to such Other Applicable Indebtedness shall not exceed the amount required to be allocated to such Other Applicable Indebtedness pursuant to the terms thereof, (C) the amount of prepayment of the Term Loans that would otherwise have been required pursuant to this Section 4.2(a) shall be reduced accordingly and (D) to the extent the holders of such Other Applicable Indebtedness decline to have such Indebtedness prepaid, redeemed or repurchased, the declined amount shall promptly (and in any event within 10 Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof.
(b)
If at any time after the Closing Date any Group Member receives any Net Cash Proceeds from any Asset Sale or Recovery Event in an amount exceeding
$25,000,00050,000,000
in any fiscal year, then, the Borrower shall (i) if no Reinvestment Notice shall have been delivered in respect thereof, prepay the Term Loans on a pro rata basis on the fifth Business Day
following the date of such receipt in an amount equal to 100% of such excess Net Cash Proceeds or (ii) if a Reinvestment Notice has been delivered in respect thereof, prepay the Term Loans in an amount equal to the Reinvestment Prepayment
Amount, if any, on a pro rata basis on the Reinvestment Prepayment Date; provided, that if at the time of such prepayment the Borrower or such Group Member is required to prepay any Other Applicable Indebtedness (to the extent and if required
by the terms of the definitive documentation governing such other Indebtedness), then the Borrower may apply 100% of such excess Net Cash Proceeds (or the Reinvestment Prepayment Amount, as applicable) to prepay the Term Loans and prepay, redeem or
repurchase such Other Applicable Indebtedness on a pro rata basis on the date of such receipt; provided, further, that (A) any prepayment, redemption or repurchase of such Other Applicable Indebtedness shall be at par (or
less than par), (B) the portion of such prepayment amount allocated to such Other Applicable Indebtedness shall not exceed the amount required to be allocated to such Other Applicable Indebtedness pursuant to the terms thereof, (C) the amount
of prepayment of the Term Loans that would otherwise have been required pursuant to this Section 4.2(b) shall be reduced accordingly, and (D) to the extent the holders of such Other Applicable Indebtedness decline to have such Indebtedness
prepaid, redeemed or repurchased, the declined amount shall promptly (and in any event within 10 Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof.
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(c) Within 5 Business Days after the date the Borrower is required to deliver
financial statements pursuant to Section 7.1(a)(i) starting with the fiscal year ending on March 31, 20212027
, and the related Compliance Certificate pursuant to Section 7.2(a), the Borrowers shall prepay outstanding Term Loans in an aggregate principal amount equal to the
Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all voluntary prepayment of principal of Term Loans pursuant to Section 4.1 during such fiscal year to the extent such
payments were not and have not been funded with additional long-term Indebtedness (other than Revolving Loans) or the use of the Available Amount; provided that such prepayment shall only be required under this Section 4.2(c) if the net amount
required to be prepaid in any fiscal year is greater than or equal to $25,000,000; provided, that if at the time of such prepayment the Borrower or such Group Member is required to prepay any Other Applicable Indebtedness (to the extent and
if required by the terms of the definitive documentation governing such other Indebtedness), then the Borrower may apply such amount otherwise required to be applied as a prepayment pursuant to this Section 4.2(c) on a pro rata basis to
the prepayment of the Term Loans to the repurchase or prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness (or accreted amount if
such Other Applicable Indebtedness is issued with original issue discount) at such time; provided, further, that (A) any prepayment, redemption or repurchase of such Other Applicable Indebtedness shall be at par (or less than
par), (B) the portion of such prepayment amount allocated to such Other Applicable Indebtedness shall not exceed the amount required to be allocated to such Other Applicable Indebtedness pursuant to the terms thereof, (C) the amount of
prepayment of the Term Loans that would otherwise have been required pursuant to this Section 4.2(c) shall be reduced accordingly, and (D) to the extent the holders of such Other Applicable Indebtedness decline to have such Indebtedness
prepaid, redeemed or repurchased, the declined amount shall promptly (and in any event within 10 Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof.
(d) If at any time after the Closing Date, the aggregate Revolving Extensions of Credit then outstanding exceed the Revolving Commitments then in effect, the Borrower (without notice or demand) shall immediately prepay outstanding Swingline Loans or Revolving Loans and pay any unpaid Reimbursement Obligations (or, if no Swingline Loans or Revolving Loans are outstanding, Cash Collateralize outstanding Letters of Credit) in an amount sufficient to eliminate any such excess.
(e) Mandatory prepayments of Term Loans (i) shall be applied to Base Rate Loans and Term Benchmark Loans on a pro rata basis and (ii) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. Each such prepayment shall be credited to the remaining scheduled installments of the Term Facilities thereof as specified by the Borrower or, if not specified, to the next eight scheduled quarterly installments of the Term Loans in direct order of maturity and thereafter to the remaining scheduled quarterly installments of the Term Loans on a pro rata basis.
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(f) Other than with respect to mandatory prepayments upon the Incurrence of any Permitted Pari Passu Refinancing Debt, Permitted Junior Refinancing Debt or other Credit Agreement Refinancing Indebtedness pursuant to Section 4.2(a), the applicable Lenders may elect not to accept any mandatory prepayment by giving written notice of such election to the Applicable Administrative Agent no later than 12:00 p.m., New York City time, one Business Day prior to such mandatory prepayment date; provided that such election must be for the full (and not partial) amount of such mandatory prepayment (each such Lender, a “Declining Lender”). Any prepayment amount declined by the Declining Lenders (the “Declined Amount”) shall be retained by the Borrower.
(g) Notwithstanding any other provisions of this Section 4.2 to the contrary, with respect to any prepayment required pursuant to Section 4.2(a), (b) or (c), if at the time of such prepayment, the Group Member receiving the Net Cash Proceeds (i) is prohibited, restricted or delayed by applicable local law from repatriating such Net Cash Proceeds or Excess Cash Flow to the Borrower, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Term Loans at the times provided in Section 4.2(a), (b) or (c) but may be retained by the applicable Group Member so long, but only so long, as the applicable local law will not permit repatriation to the Borrower, and once such repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable local law, such repatriation will be effected and such repatriated Net Cash Proceeds or Excess Cash Flow will be promptly applied (net of additional taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to Section 4.2(a), (b) or (c) to the extent provided therein or (ii) cannot repatriate such funds to the Borrower without (in the good faith determination of the Borrower) incurring material adverse tax consequences with respect to such repatriated amount, the Net Cash Proceeds or Excess Cash Flow (or portion thereof) so affected may be retained by the applicable Group Member (the Borrower hereby agrees to cause the applicable Group Member to promptly use commercially reasonable efforts to take all actions within the reasonable control of the Borrower that are reasonably required to eliminate such tax effects) until such time as such material adverse costs would not apply to the repatriation thereof, at which time the mandatory prepayments otherwise required by Section 4.2(a), (b) or (c) with respect to such Net Cash Proceeds or Excess Cash Flow shall be made.
4.3 Conversion and Continuation Options. (a) The Borrower may elect from time to time to convert Term Benchmark Loans denominated in Dollars to Base Rate Loans by giving the Applicable Administrative Agent prior irrevocable notice of such election no later than 12:00 noon, New York City time, on the Business Day preceding the proposed conversion date; provided, that any such conversion of Term Benchmark Loans may only be made on the last day of an Interest Period with respect thereto. The Borrower may elect from time to time to convert Base Rate Loans to Term Benchmark Loans by giving the Applicable Administrative Agent prior irrevocable notice of such election no later than 1:00 p.m., New York City time, on the third Business Day preceding the proposed conversion date (which notice shall specify the length of the initial Interest Period therefore); provided, that no Base Rate Loan under a particular Facility may be converted into a Term Benchmark Loan when any Event of Default has occurred and is continuing and the Applicable Administrative Agent or the Majority Facility Lenders in respect of such Facility have determined in its or their sole discretion not to permit such conversions. If the Borrower requests a conversion to Term Benchmark Loans in any such notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month. Upon receipt of any such notice the Applicable Administrative Agent shall promptly notify each relevant Lender thereof.
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(b) Any Term Benchmark Loan may be continued as such upon the expiration of the then current Interest Period with respect thereto by the Borrower giving irrevocable notice to the Applicable Administrative Agent, in accordance with the applicable provisions of the term “Interest Period” set forth in Section 1.1, of the length of the next Interest Period to be applicable to such Loans; provided, that no Term Benchmark Loan denominated in Dollars under a particular Facility may be continued as such when any Event of Default has occurred and is continuing and the Applicable Administrative Agent has, or the Majority Facility Lenders in respect of such Facility have, determined in its or their sole discretion not to permit such continuations; provided, further, that if such continuation is not permitted pursuant to the preceding proviso such Dollar denominated Loans shall be automatically converted to Base Rate Loans on the last day of such then expiring Interest Period; provided, further, that if the Borrower shall fail to give any required notice as described in this Section 4.3(b) such Loans shall be automatically converted, on the last day of such then expiring Interest Period, to Term Benchmark Loans having an Interest Period of one month. So long as no Event of Default has occurred and is continuing, if the Borrower requests a continuation of Term Benchmark Loans in any such notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month. Upon receipt of any such notice the Applicable Administrative Agent shall promptly notify each relevant Lender thereof.
4.4 Limitations on Term Benchmark Tranches. Notwithstanding anything to the contrary in this Agreement, all borrowings, conversions and continuations of Term Benchmark Loans hereunder and all selections of Interest Periods hereunder shall be in such amounts and be made pursuant to such elections so that, (a) after giving effect thereto, the aggregate principal amount of the Term Benchmark Loans comprising each Term Benchmark Tranche shall be equal to $5,000,000 or a whole multiple of $1,000,000 in excess thereof and (b) no more than fifteen Term Benchmark Tranches shall be outstanding at any one time.
4.5 Interest Rates and Payment Dates; Administrative Agent Fees; Other Fees. (a). (a) Each Term Benchmark Loan shall bear interest on the outstanding principal amount thereof for each day during each Interest Period with respect thereto at a rate per annum equal to the Term Benchmark determined
for such day plus the Applicable Margin. Each Daily RFR Loan shall bear interest on the outstanding principal amount thereof
for each day during each Interest Period with respect thereto at a fluctuating rate per annum (computed on the basis of a year of 360 days (or, where the rate of interest is calculated on the basis of CORRA, 365 (or 366, as the case may be) days)
and actual days elapsed) equal to the Daily Simple RFR plus the Applicable Margin.
(b) Each Base Rate Loan shall bear interest on the outstanding principal amount thereof at a rate per annum equal to the Base Rate plus the Applicable Margin.
(c) (i) If any portion of the principal of any Loan or Reimbursement Obligation is not paid when due (whether at the stated maturity, by acceleration or otherwise), such portion of such principal shall bear interest at a rate per annum equal to (x) in the case of the Loans, the rate that would otherwise be applicable thereto pursuant to Section 4.5(a) or 4.5(b) plus 2.00% per annum or (y) in the case of Reimbursement Obligations, the rate applicable to Base Rate Loans under the Revolving Facility plus 2.00% per annum and (ii) if all or a portion of any interest payable on any Loan or Reimbursement Obligation or any commitment fee or other
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81amount payable hereunder is not paid when due (whether at the stated maturity, by acceleration or otherwise), such overdue amount shall bear interest at a rate per annum equal to the rate then applicable to Base Rate Loans under the relevant Facility plus 2.00% per annum (or, in the case of any such other amounts that do not relate to a particular Facility, the rate then applicable to Base Rate Loans under the Revolving Facility plus 2.00% per annum), in each case, with respect to both clause (i) and clause (ii) above, from the date of such non-payment until such amount is paid in full (as well after as before judgment).
(d) Interest shall be payable in arrears on each Interest Payment Date; provided, that interest accruing pursuant to Section 4.5(c) shall be payable from time to time on demand.
(e) The Borrower agrees to pay to the Applicable Administrative Agent and the Other Representatives any fees in the amounts and on the dates previously agreed to in writing by the Borrower, the Other Representatives and the Applicable Administrative Agent in connection with this Agreement.
4.6 Computation of Interest and Fees. (a) Interest and fees payable pursuant hereto shall be calculated on the basis of a 360-day year for the actual days elapsed, except that, with respect to Base Rate Loans the rate of interest on which is calculated on the basis of the Prime Rate and Term Benchmark Loans the rate of interest on which is calculated on the basis of the Term CORRA Rate, the interest thereon shall be calculated on the basis of a 365- (or 366-, as the case may be) day year for the actual days elapsed.
The Applicable Administrative Agent shall as soon as practicable notify the Borrower and the relevant Lenders of each determination of a Term Benchmark. Any change in the interest rate on a Loan resulting from a change in the Base Rate or the Statutory Reserve Rate shall become effective as of the opening of business on the day on which such change becomes
effective. The Applicable Administrative Agent shall as soon as practicable notify the Borrower and the relevant Lenders of the effective date and the amount of each such change in interest rate. Interest shall accrue on each Loan for each day on
which it is made or outstanding, except the day on which it is repaid unless it is repaid on the same day that it was made.
(b) Each determination of an interest rate by the Applicable Administrative Agent pursuant to any provision of this Agreement shall be conclusive and binding on the Borrower and the Lenders in the absence of manifest error. The Applicable Administrative Agent shall, at the request of the Borrower, deliver to the Borrower a statement showing the quotations used by the Applicable Administrative Agent in determining any interest rate pursuant to Section 4.5(a).
(c) In the event that any financial statement or compliance certificate delivered pursuant to Sections 7.1 or 7.2 respectively is inaccurate, and such inaccuracy, if corrected, would have led to the application of a higher Commitment Fee Rate for any period (an “Applicable Period”) than the Commitment Fee Rate applied for such Applicable Period, then (i) the Borrower shall promptly deliver to the Facilities Administrative Agents a corrected financial statement and a corrected compliance certificate for such Applicable Period, (ii) the Commitment Fee Rate shall be determined based on the corrected compliance certificate for such Applicable Period, and (iii) the Borrower shall promptly pay to the Facilities Administrative Agents (for the
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account of the Lenders and the Issuing Lenders during the Applicable Period or their successors and assigns) the accrued additional interest owing as a result of such increased Commitment Fee Rate for such Applicable Period. This Section 4.6(c) shall not limit the rights of the Facilities Administrative Agents or the Lenders with respect to Section 4.5(b) and Section 9 hereof, and shall survive the termination of this Agreement.
4.7 Inability to Determine Interest Rate; Benchmark Replacement.
(a) If prior to the first day of any Interest Period:
(i) the
Applicable Administrative Agent shall have determined (which determination
shall be conclusive and binding upon the Borrower absent manifest error) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurocurrency Rate or the Eurodollar Base Rate,
as applicable (including, without limitation, because the
LIBO
Term SOFR Rate is not available or published on a current basis), for the
applicable currency and such Interest Period, or
(ii) the Applicable Administrative Agent shall have received notice from the Majority Facility Lenders in respect of the relevant Facility that the Eurocurrency Rate or the Eurodollar Base Rate, as applicable, determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to such Lenders (as conclusively certified by such Lenders) of making or maintaining their affected Loans during such Interest Period,
then the Applicable Administrative Agent shall give written notice thereof to the Borrower and the relevant Lenders as soon as practicable thereafter. If such notice is given (x) any Eurocurrency Loans under the relevant Facility requested to be made on the first day of such Interest Period shall be made as Base Rate Loans (provided, that the Borrower may rescind such request promptly after receipt of such notice), (y) any Loans under the relevant Facility that were to have been converted on the first day of such Interest Period to Eurocurrency Loans shall be continued as Base Rate Loans and (z) any outstanding Eurocurrency Loans under the relevant Facility shall be converted, on the last day of the then-current Interest Period, to Base Rate Loans. Until such notice has been withdrawn by the Applicable Administrative Agent, no further Eurocurrency Loans under the relevant Facility shall be made or continued as such, nor shall the Borrower have the right to convert Loans under the relevant Facility to Eurocurrency Loans.
(b) Benchmark Replacement. Notwithstanding anything to the contrary herein or in any other Loan Document, upon the occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, the
Administrative Agent and the Borrower may amend this Agreement to replace the LIBO Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at (and any Specified Hedge Agreement shall be deemed not to be a “Loan
Document” for
purposes of this Section), if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred prior to any setting of the then-current Benchmark for any Currency, then
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(A) if a Benchmark Replacement is determined in accordance with
clause (1) of the definition of “Benchmark
Replacement” for
such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or
further action or consent of any other party to, this Agreement or any other Loan Document and (B) if a
Benchmark Replacement is determined in accordance with clause (2), (3) or (4) of the definition of
“Benchmark
Replacement” for
such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes
hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m., (New York City
time,)
on the fifth (5th) Business Day after the Administrative Agent has posted such proposed amendment to all Lenders and the Borrowerdate notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent
of any other party to, this Agreement or any other Loan Document so long as the
Applicable Administrative Agent has not received, by such
time, written notice of objection to such amendment from Lenders comprising the Required Lenders. Any such amendment with respect to an Early Opt-in Election will become effective on the date that Lenders comprising the Required Lenders have delivered to the Administrative Agent
written notice that such Required Lenders accept such amendment. No replacement of the LIBO Rate with
of each applicable Tranche
of objection to
(i) with respect to a Benchmark Replacement
pursuant to this clause
(b) will occur prior to the applicable Benchmark Transition Start
Date.determined in accordance with clause (2) or (3) of the definition of
“Benchmark
Replacement”,
the related Benchmark Replacement Adjustment and (ii) with respect to a Benchmark Replacement
determined in accordance with clause (4) of the definition of “Benchmark
Replacement”,
such Benchmark Replacement.
(c) Benchmark Replacement Conforming Changes. In connection with
the use, administration, adoption or implementation of a Benchmark
Replacement, the Applicable Administrative Agent will have the right to make Benchmark
Replacementmay make Conforming Changes from
time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this
Agreement or any other Loan Document.
(d) Notices; Standards for Decisions and Determinations. The Applicable Administrative Agent will promptly notify the Borrower and
the applicable Lenders of (i) any occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date
and Benchmark Transition Start Date, (iiA)
the implementation of any Benchmark Replacement, and
(iiiB
) the effectiveness of any Benchmark Replacement
Conforming Changes, in connection with the use, administration, adoption, or implementation of a Benchmark Replacement. The Applicable
Administrative Agent will notify the Borrower of (x) the removal or reinstatement of any tenor of a
Benchmark pursuant to paragraph
(f) below and
(ivy) the commencement or conclusion of any Benchmark Unavailability Period.
Any determination, decision or election that may be made by the Applicable Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to
this Section 4.7, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any
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decision to take or refrain from taking any action or any
selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party hereto,
to this Agreement or any other Loan Document except, in each case, as
expressly required pursuant to this Section 4.7.
(e) Benchmark Unavailability Period. Upon the Borrower’s
receipt of notice of the commencement of a Benchmark Unavailability Period with respect to a given Benchmark, the Borrower may revoke any pending request for a Eurocurrency
Loan
of,
bearing interest based on or with reference to such Benchmark or conversion
to or continuation of Eurocurrency LoansLoans bearing interest based on or with reference to the affected
Benchmark to be made, converted or continued during any such
Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request into a request for a Loan of or
conversion to Base Rate Loans. During anyLoans denominated in Dollars (in the case of Loans denominated in an Approved
Currency other than Dollars, in an amount equal to the Dollar Equivalent of such Approved Currency) bearing interest based upon the Base Rate. During a Benchmark Unavailability Period, the for a given Benchmark or at any time that a tenor for a then-current Benchmark is not an Available Tenor, any component of the Base Rate
based upon LIBO Ratesuch then-current Benchmark or such tenor for such Benchmark, as
applicable, will not be used in any determination of the
Base Rate.
(f) Unavailability of Tenor of Benchmark. Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (A) if the then-current Benchmark is a term rate or based on a term rate and either (I) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Applicable Administrative Agent in its reasonable discretion or (II) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative, then the Applicable Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor; and (B) if a tenor that was removed pursuant to clause (A) above either (I) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (II) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark Replacement), then the Applicable Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for all Benchmark settings at or after such time to reinstate such previously removed tenor.
4.8 Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower from the Lenders hereunder, each payment by the Borrower on account of any commitment fee and any reduction of the Commitments of the Lenders shall be made pro rata according to the respective Term Percentages or Revolving Percentages, as the case may be of the relevant Lenders.
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(b) Each payment (including each prepayment but excluding any purchase of Loans pursuant to Section 11.6(g)) by the Borrower on account of principal of and interest on the Term Loans shall be made, pro rata according to the respective outstanding principal amounts of the Term Loans then held by the Term Lenders. Amounts prepaid on account of the Term Loans may not be reborrowed.
(c) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Revolving Lenders.
(d) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 1:00 p.m., New York City time, on the due date thereof to the Applicable Administrative Agent, for the account of the Lenders, at the applicable Funding Office, in Dollars and in immediately available funds. The Applicable Administrative Agent shall distribute such payments to the Lenders promptly upon receipt in like funds as received. If any payment hereunder (other than payments on the Term Benchmark Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Term Benchmark Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(e) Unless the Applicable Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Applicable Administrative Agent, the Applicable Administrative Agent may assume that such Lender is making such amount available to the Applicable Administrative Agent, and the Applicable Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Applicable Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Applicable Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Applicable Administrative Agent in accordance with banking industry rules on interbank compensation for the period until such Lender makes such amount immediately available to the Applicable Administrative Agent. A certificate of the Applicable Administrative Agent submitted to any Lender with respect to any amounts owing under this Section 4.8(e) shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made available to the Applicable Administrative Agent by such Lender within three Business Days of such Borrowing Date, the Applicable Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to Base Rate Loans under the relevant Facility, on demand, from the Borrower.
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(f) Unless the Applicable Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be made by the Borrower hereunder that the Borrower will not make such payment to the Applicable Administrative Agent, the Applicable Administrative Agent may assume that the Borrower is making such payment, and the Applicable Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Applicable Administrative Agent by the Borrower within three Business Days after such due date, the Applicable Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the any Facilities Administrative Agent or any Lender against the Borrower.
4.9 Requirements of Law. (a) If the adoption of or any change in any Requirement of Law or in the interpretation or application thereof, or compliance by any Lender or the any Facilities Administrative Agent with any request or directive whether or not having the force of law from any central bank or other Governmental Authority made subsequent to the date such Lender or the Applicable Administrative Agent, as applicable, becomes a party hereto:
(i) shall subject any Lender or any Facilities Administrative Agent to any Tax of any kind whatsoever with respect to this Agreement, or any other Loan Documents, and Commitment or Obligation, any Letter of Credit, any Application or any Term Benchmark Loan made by it, or its deposits, reserves, other liabilities or capital attributable thereto, or change the basis of taxation of payments to such Lender in respect thereof (except for Non-Excluded Taxes imposed on amounts payable hereunder, Other Taxes and Excluded Taxes; provided, that this provision shall not affect any obligation of the Borrower under Section 4.10);
(ii) shall impose, modify or hold applicable any reserve, liquidity requirements, special deposit, compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for the account of, advances, loans or other extensions of credit by, or any other acquisition of funds by, any office of such Lender that is not otherwise included in the determination of the Term Benchmark hereunder; or
(iii) shall impose on such Lender any other condition; and
the result of any of the foregoing is to increase the cost to such Lender or the Applicable Administrative Agent, by an amount that such Lender or the Applicable Administrative Agent, as applicable, reasonably deems to be material, of making, converting into, continuing or maintaining Term Benchmark Loans or issuing or participating in Letters of Credit, or to reduce any amount receivable hereunder in respect thereof, then, in any such case, the Borrower shall promptly pay such Lender or the Applicable Administrative Agent, upon its written demand (accompanied by a certificate of the type described in Section 4.9(c)), any additional amounts necessary to compensate such Lender or the Applicable Administrative Agent for such increased cost or reduced amount receivable. If any Lender or any Facilities Administrative Agent becomes entitled to claim any additional amounts pursuant to this Section 4.9(a), it shall promptly notify the Borrower (with a copy to the Applicable Administrative Agent) of the event by reason of which it has become so entitled.
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(b) If any Lender shall have reasonably determined that the adoption of or any change in any Requirement of Law regarding capital adequacy or liquidity requirements or in the interpretation or application thereof or compliance by such Lender or any corporation controlling such Lender with any request or directive regarding capital adequacy or liquidity requirements whether or not having the force of law from any Governmental Authority made subsequent to the date such Lender becomes a party hereto shall have the effect of reducing the rate of return on such Lender’s or such corporation’s capital as a consequence of its obligations hereunder or under or in respect of any Letter of Credit to a level below that which such Lender or such corporation could have achieved but for such adoption, change or compliance (taking into consideration such Lender’s or such corporation’s policies with respect to capital adequacy or liquidity requirements and such Lender’s desired return on capital) by an amount reasonably deemed by such Lender to be material, then from time to time, after submission by such Lender to the Borrower (with a copy to the Applicable Administrative Agent) of a written request (accompanied by a certificate of the type described in clause (c) below) therefor, the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or such corporation for such reduction. For purposes of this Agreement, and notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, regulations, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall be deemed to be have been enacted, adopted or issued after the date each Lender has become a party hereto, regardless of the date such act, requests, rules, regulations, guidelines or directives enacted, adopted or issued.
(c) A certificate as to any additional amounts payable pursuant to this Section 4.9 submitted by any Lender to the Borrower (with a copy to the Applicable Administrative Agent) shall be conclusive in the absence of manifest error. Notwithstanding anything to the contrary in this Section 4.9, the Borrower shall not be required to compensate a Lender pursuant to this Section 4.9 for any amounts Incurred more than six months prior to the date that such Lender notifies the Borrower of such Lender’s intention to claim compensation therefor; provided, that, if the circumstances giving rise to such claim have a retroactive effect, then such six-month period shall be extended to include the period of such retroactive effect. The obligations of the Borrower pursuant to this Section 4.9 shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
4.10 Taxes. (a) Except to the extent required under applicable law, all payments made under this Agreement or any other Loan Document shall be made free and clear of, and without deduction or withholding for any Taxes. If any applicable law (as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is a Non-Excluded Tax (as defined below) or an Other Tax, then the sum payable by the applicable Loan Party shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section 4.10) each of the Facilities Administrative Agents or Lenders receives an amount equal to the sum it would have received had no such deduction or withholding been made; provided, however, that, for the avoidance of doubt, the Borrower shall not be required to increase any such amounts payable to any Lender or any Facilities Administrative Agent with respect to any Excluded Taxes (other than Other Taxes).
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(b) “Non-Excluded Taxes” shall mean all Taxes, other than Excluded Taxes. “Excluded Taxes” shall mean Taxes imposed on or with respect to a Lender or Facilities Administration Agent or required to be withheld or deducted from a payment to a Lender or Facilities Administration Agent (i) measured by net income (however denominated), branch profits Taxes and franchise Taxes imposed on any Facilities Administrative Agent or any Lender or its applicable lending office or any branch, in each case as a result of a present or former connection between such Facilities Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such Tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising from any such Administrative Agent or such Lender having executed, delivered, become a party to or performed its obligations or received a payment under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced, this Agreement or any other Loan Document, or sold or assigned an interest in any Loan or Loan Document), (ii) that are attributable to such Lender’s or such Facilities Administrative Agent’s failure to comply (other than as a result of any change in any Requirement of Law) with the requirements of Sections 4.10(e) or (f), (iii) that are United States federal withholding taxes imposed on amounts payable to such Lender at the time such Lender becomes a party to this Agreement (other than pursuant to a replacement by the Borrower under Section 4.13), except to the extent that such Lender’s assignor (if any) was entitled, at the time of assignment to receive additional amounts from the Borrower with respect to the Taxes pursuant to this Section 4.10 and (iv) any withholding taxes imposed under FATCA.
(c) In addition, but without duplication of Section 4.10(a), the Borrower shall pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law.
(d) Whenever any Non-Excluded Taxes or Other Taxes are payable by or on account of a Loan Party to a Governmental Authority pursuant to this Section 4.10, as promptly as possible thereafter the Borrower shall send
to each of the Facilities Administrative Agents for their own accounts or for the account of the relevant Lender, as the case may be, a certified copy of an original official receipt received by the Borrower showing payment thereof. If the Borrower
fails to pay or cause to be paid any Non-Excluded Taxes or
Othersuch Taxes when due to the appropriate
taxing authority or fails to remit or cause to be remitted to any Facilities Administrative Agent the required receipts or other required documentary evidence, the Loan Parties shall indemnify each of the Facilities Administrative Agents and the
Lenders for any incremental
taxesTaxes, interest or penalties that may become payable by such Facilities Administrative Agent or any Lender as a result of any such failure.
(e) Each Lender or Facilities Administrative Agent (or Transferee) that is not a “United States person” as defined in Section 7701(a)(30) of the Code (a “Non-U.S. Lender”) shall deliver to the Borrower and the Applicable Administrative Agent (or, in the case of a Participant, to the Lender from which the related participation shall have been purchased) two copies of either U.S. Internal Revenue Service Form W-8IMY (together with any required
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attachments), Form W-8EXP and/or Form W-8BEN or W-8BEN-E (claiming benefits of an applicable tax treaty) or Form W-8ECI, as applicable (or successor form) or, in the case of a Non-U.S. Lender claiming exemption from U.S. federal withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest”, a statement substantially in the form of Exhibit F and a Form W-8BEN or W-8BEN-E, or any subsequent versions thereof or successors thereto, properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or a reduced rate of, U.S. federal withholding tax on all payments by the Borrower under this Agreement and the other Loan Documents. Such forms shall be delivered by each Non-U.S. Lender on or before the date it becomes a party to this Agreement (or, in the case of any Participant, on or before the date such Participant purchases the related participation). In addition, each Non-U.S. Lender shall deliver properly updated forms promptly upon the obsolescence or invalidity of any form previously delivered by such Non-U.S. Lender. Each Non-U.S. Lender shall promptly notify the Borrower and the Applicable Administrative Agent at any time it determines that it is no longer in a position to provide any previously delivered certificate to the Borrower or the Applicable Administrative Agent (or any other form of certification adopted by the U.S. taxing authorities for such purpose). Notwithstanding any other provision of this Section 4.10(e), a Non-U.S. Lender shall not be required to deliver any form pursuant to this Section 4.10(e) that such Non-U.S. Lender is not legally able to deliver. Each Lender or Facilities Administrative Agent that is not a Non-U.S. Lender shall furnish an accurate and complete U.S. Internal Revenue Service Form W-9 (or successor form) establishing that such Lender or such Facilities Administrative Agent is not subject to U.S. backup withholding, and to the extent it may lawfully do so at such times, provide a new Form W-9 (or successor form) upon the expiration or obsolescence of any previously delivered form.
(f) A Lender or Facilities Administrative
Agent that is entitled to an exemption from or reduction of withholding tax with respect to payments under this Agreement or any other Loan Document shall deliver to the Borrower (with a copy to the Applicable Administrative Agent (if applicable)),
at the time or times prescribed by applicable law and upon reasonable request in writing by the Borrower or the Applicable Administrative Agent, such properly completed and executed documentation prescribed by applicable law as will permit such payments to be
made without withholding or at a reduced rate. In addition, any Lender, if reasonably requested by the Borrower or the Applicable Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by
the Borrower or the Applicable Administrative Agent as will enable the Borrower or the Applicable 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 4.10(de)) shall not be required if in such Lender’s or the Applicable Administrative Agent’s reasonable judgment
such completion, execution or submission would subject such Lender or the Applicable Administrative Agent to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender or the Applicable
Administrative Agent.
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(g) If any Lender or Facilities Administrative Agent determines, in its reasonable discretion, that it has received a refund of any Non-Excluded Taxes or Other 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 4.10, it shall promptly pay over such refund to the Borrower (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower under this Section 4.10 with respect to the Non-Excluded Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of such Facilities Administrative Agent or Lender 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 such Facilities Administrative Agent or such Lender, agrees to repay the amount paid over to the Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to such Facilities Administrative Agent or such Lender in the event such Facilities Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this Section 4.10(g), in no event will any Lender or Facilities Administrative Agent be required to pay any amount to any Loan Party under this Section 4.10(g) the payment of which would place such Lender or such Facilities Administrative Agent in a materially less favorable net after-Tax position than such Lender or such Facilities Administrative Agent would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This Section 4.10(g) shall not be construed to require any Facilities Administrative Agent or any Lender to make available its tax returns (or any other information relating to its taxes which it deems confidential) to the Borrower or any other Person.
(h) The Borrower and each Loan Party shall indemnify each Lender and each Facilities Administrative Agent within twenty (20) days after written demand therefor, for the full amount of any Non-Excluded Taxes or Other Taxes paid or payable by such Lender or such Facilities Administrative Agent or any of their respective Affiliates, as applicable, on or with respect to any payment by or on account of any obligation of the Borrower or such Loan Party hereunder (including Non-Excluded Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section 4.10) or otherwise arising in connection with this Agreement or any other Loan Document and any reasonable expenses arising therefrom or with respect thereto, whether or not such Non-Excluded Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority; provided, however, that neither the Borrower nor any Loan Party shall be obligated to make payment to any Lender or any Facilities Administrative Agent, as applicable, pursuant to this Section 4.10(h) in respect of penalties, interest or other similar liabilities attributable to such Non-Excluded Taxes or Other Taxes if such penalties, interest or other similar liabilities are attributable to the gross negligence or willful misconduct of such Lender or such Facilities Administrative Agent, as the case may be, seeking indemnification as determined in a final, non-appealable judgment of a court of competent jurisdiction. An original official receipt, or certified copy thereof, as to the amount of such payment, delivered to the Borrower by a Lender or by any Facilities Administrative Agent on its own behalf or on behalf of any such Person, shall be conclusive absent manifest error.
(i) The agreements in this Section 4.10 shall survive resignation or replacement of any Facilities Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments or this Agreement and the repayment, satisfaction or discharge of the Loans, Obligations and all other amounts payable under any Loan Document.
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(j) If a Lender changes its applicable lending office (other than with respect to the designation of a new lending office pursuant to a request by the Borrower under Section 4.12) or assigns its rights (other than with respect to an assignment made pursuant to Section 4.13) or sells participations therein and the effect of the change, assignment or participation, as of the date of the change, would be to cause the Borrower to become obligated to pay any additional amount under Section 4.9(a)(i) or 4.10, the Borrower shall not be obligated to pay such additional amount in excess of amounts the Borrower was obligated to pay prior to such change, assignment or participation (except to the extent such obligation to pay a greater amount results from change in a Requirement of Law that occurs after such change, assignment or participation).
(k) If a payment made to a Lender or Applicable Administrative Agent under any Loan Document would be subject to U.S. federal withholding tax imposed by FATCA if such Lender or such Applicable Administrative Agent 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 or such Applicable Administrative Agent shall deliver to the Borrower and the Applicable Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Applicable 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 Applicable Administrative Agent as may be necessary for the Borrower and the Applicable Administrative Agent to comply with their obligations under FATCA and to determine that such Lender or such Applicable Administrative Agent has complied with such Lender’s or Applicable Administrative Agent’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this 4.10(k), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
4.11 Indemnity. The Borrower agrees to indemnify each Lender, upon its written request (which request shall set forth in reasonable detail the basis for requesting such compensation and the calculation of the amount of such compensation), for all losses, expenses and liabilities (including any loss, expense or liability incurred by reason of the liquidation or reemployment of deposits or other funds required by such Lender to fund its Term Benchmark Loans but excluding loss of anticipated profits) that such Lender may sustain or incur as a consequence of (a) default by the Borrower in making a borrowing of, conversion into or continuation of Term Benchmark Loans after the Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (b) default by the Borrower in making any prepayment of or conversion from Term Benchmark Loans after the Borrower has given a notice thereof in accordance with the provisions of this Agreement or (c) the making of a prepayment of Term Benchmark Loans on a day that is not the last day of an Interest Period with respect thereto. Such indemnification may include an amount equal to the excess, if any, of (i) the amount of interest that would have accrued on the amount so prepaid, or not so borrowed, converted or continued, for the period from the date of such prepayment or of such failure to borrow, convert or continue to the last day of such Interest Period (or, in the case of a failure to borrow, convert or continue, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Loans provided for herein (excluding, however, the Applicable Margin included therein, if any) over (ii) the amount of interest (as reasonably determined by such Lender) that would have accrued to such Lender on such amount by placing
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such amount on deposit for a comparable period with leading banks in the interbank eurodollar market. A certificate as to any amounts payable pursuant to this Section 4.11 submitted to the Borrower by any Lender shall be conclusive in the absence of manifest error. This covenant shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
4.12 Change of Lending Office. Each Lender agrees that, upon the occurrence of any event giving rise to the operation of Section 4.9, 4.10(a) or 4.15 with respect to such Lender, it will, if requested by the Borrower, use reasonable efforts (subject to overall policy considerations of such Lender) to designate another lending office for any Loans or Letters of Credit affected by such event with the object of avoiding the consequences of such event; provided, that such designation is made on terms that, in the sole judgment of such Lender, cause such Lender and its lending office(s) to suffer no economic, legal or regulatory disadvantage; provided, further, that nothing in this Section 4.12 shall affect or postpone any of the obligations of the Borrower or the rights of any Lender pursuant to Section 4.9, 4.10(a) or 4.15. Subject to the terms and conditions set forth in Section 10.7, the Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.
4.13 Replacement of Lenders. (a) The Borrower may replace (at its sole expense and effort), with a replacement lender reasonably
satisfactory to the Applicable Administrative Agent, any Lender that (x) requests payment of any amounts payable under Section 4.9, 4.10(a) or 4.15, (y) is a Defaulting Lender hereunder or (z) declines to deliver any requested consent
to a waiver, amendment or other modification of any provision of the Loan Documents that has been consented to by the Borrower, the Applicable Administrative Agent, the Required Lenders and, if otherwise required, the Majority Facility Lenders (any
such Lender who does not agree to such consent, waiver or other modification, a “Non-Consenting Lender”), but only if (i) such replacement does not conflict with any Requirement of Law,
(ii) [reserved],in the case of the
replacement of a Revolving Lender, the replacement lender is reasonably acceptable to the Issuing Lenders and the Swingline Lender , (iii) prior to any such replacement, such Lender has taken
no action under Section 4.12 so as to eliminate the demand or condition giving rise to the Borrower’s replacement right, (iv) the replacement lender purchases, at par, all Loans and other amounts owing to the replaced Lender on or
prior to the date of replacement and assumes all obligations of the replaced Lender under the Loan Documents in accordance with Section 11.6 (except that the Borrower shall pay the registration and processing fee referred to therein), (v) the
Borrower compensates the replaced Lender under Section 4.11 if any Term Benchmark Loan outstanding to the replaced Lender is purchased other than on the last day of the Interest Period relating thereto, (vi) in the case of any such
replacement resulting from a claim for compensation under Section 4.9 or Section 4.10, such replacement will result in a reduction in such compensation or payments thereafter, and (vii) the Borrower shall pay the replaced Lender all
amounts payable under Section 4.9 or Section 4.10. Notwithstanding the foregoing, all rights and claims of the Borrower, the Applicable Administrative Agent and the Lenders against any replaced Lender that has defaulted in its obligation
to make Loans hereunder shall be in all respects and unaffected by the replacement of such Lender.
(b) If the Borrower is unable to find a replacement for any Non-Consenting Lender, the Borrower may purchase the outstanding principal of such Non-Consenting Lender’s Loans (and terminate its undrawn Commitments), in each case, subject to the terms and conditions set forth in Section 11.6(g).
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4.14 Evidence of Debt. (a) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing Indebtedness of the Borrower to such Lender resulting from each Loan of such Lender from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time under this Agreement.
(b) Each Facilities Administrative Agent, on behalf of the Borrower, shall maintain a Register pursuant to Section 11.6(b), and a sub-account therein for each Lender, in which shall be recorded (i) the amount of each Loan made hereunder and any Note evidencing such Loan, the Type of such Loan and each Interest Period applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder and (iii) both the amount of any sum received by such Facilities Administrative Agent hereunder from the Borrower and each Lender’s share thereof.
(c) The entries made in the Register and the accounts of each Lender maintained pursuant to Section 4.14(a) shall, to the extent permitted by applicable law, be prima facie evidence of the existence and amounts of the obligations of the Borrower therein recorded, but the failure of any Lender or any Facilities Administrative Agent to maintain the Register or any such account, or any error therein, shall not in any manner affect the obligation of the Borrower to repay (with applicable interest) the Loans made to the Borrower by such Lender in accordance with the terms of this Agreement.
(d) The Borrower agrees that, upon the request to the Applicable Administrative Agent by any Lender, the Borrower will execute and deliver to such Lender a promissory note of the Borrower evidencing any Term Loans, Revolving Loans or Swingline Loans, as the case may be, of such Lender, substantially in the forms of Exhibit G-1, G-2 or G-3, respectively, with appropriate insertions as to date and principal amount.
4.15 Illegality. Notwithstanding any other provision herein, if the adoption of or any change in any Requirement of Law or in the interpretation or application thereof shall make it unlawful for any Lender to make or maintain Term Benchmark Loans as contemplated by this Agreement, (a) the commitment of such Lender hereunder to make Term Benchmark Loans, continue Term Benchmark Loans as such and convert Base Rate Loans to Term Benchmark Loans shall forthwith be canceled and (b) such Lender’s Loans then outstanding as Term Benchmark Loans, if any, shall be converted automatically to Base Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Term Benchmark Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, the Borrower shall pay to such Lender such amounts, if any, as may be required pursuant to Section 4.11.
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4.16 Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender, to the extent permitted by applicable Requirement of Law:
(a) fees shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 3.5 (and Borrower shall not be required to pay any such fee that would have otherwise been required to such Defaulting Lender);
(b) the Aggregate Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, the Required Lenders or the Majority Facility Lenders under any Facility have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 11.1); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders under Section 11.1;
(c) if any Swingline Exposure or any L/C Obligations exists at the time a Lender becomes a Defaulting Lender then:
(i) all or any part of such Defaulting Lender’s Swingline Exposure and L/C Obligations shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Revolving Percentages but only to the extent (x) the sum of all Non-Defaulting Lenders’ Revolving Extensions of Credit plus such Defaulting Lender’s Swingline Exposure and L/C Obligations does not exceed the total of all Non-Defaulting Lenders’ Revolving Commitments and (y) the sum of the Revolving Extensions of Credit, Swingline Exposure and L/C Obligations of any Non-Defaulting Lender does not exceed such Non-Defaulting Lender’s Revolving Commitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within two (2) Business Days following notice by the Revolving Administrative Agent (x) first, prepay such Swingline Exposure and any unpaid Reimbursement Obligations and (y) second, Cash Collateralize such Defaulting Lender’s remaining L/C Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 3.7(a) for so long as such L/C Obligations are outstanding;
(iii) if the Borrower Cash Collateralizes any portion of such Defaulting Lender’s L/C Obligations pursuant to Section 4.16(c)(ii) and Section 3.7(a), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 3.9(a) or (b) with respect to such Defaulting Lender’s L/C Obligations during the period such Defaulting Lender’s L/C Obligations are cash collateralized;
(iv) if the L/C Obligations of the Non-Defaulting Lenders is reallocated pursuant to Section 4.16(c)(i), then the fees payable to the Lenders pursuant to Section 3.9(a) shall be adjusted in accordance with such Non-Defaulting Lenders’ Revolving Percentages; or
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(v) if any Defaulting Lender’s L/C Obligations are neither cash collateralized nor reallocated pursuant to Section 4.16(c)(i) or (ii), then, without prejudice to any rights or remedies of any Issuing Lender or any Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such L/C Obligations) and letter of credit fees payable under Section 3.9(a) with respect to such Defaulting Lender’s L/C Obligations shall be payable to the applicable Issuing Lenders until such L/C Obligations are cash collateralized and/or reallocated;
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and each Issuing Lender shall not be required to issue, amend, extend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the Non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 4.16(c) and Section 3.7(a), and participating interests in any such newly issued or increased Letter of Credit or newly made Swingline Loan shall be allocated among Non-Defaulting Lenders in a manner consistent with Section 4.16(c)(i) (and Defaulting Lenders shall not participate therein); and
(e) in the event and on the date that each of the Revolving Administrative Agent, the Borrower, the Issuing Lenders and the Swingline Lender agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and L/C Obligations of the other Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Revolving Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Revolving Percentage; provided, that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender; provided, further, that, subject to Section 11.23, 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.
4.17 Incremental Facilities. (a) So long as no Event of Default exists or would arise therefrom, the Borrower shall have the right, at any time and from time to time after the Second Amendment Effective Date to (i) request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement and/or increase the principal amount of any class of Term Loans (each, an “Incremental Term Facility” and, collectively, the “Incremental Term Loan Commitments”) and/or (ii) increase the Total Revolving Commitment (each, an “Incremental Revolving Facility” and, such commitments, the “Incremental Revolving Commitments”; together with the Incremental Term Loan Commitments, the “Incremental Commitments” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) so long as the aggregate outstanding principal amount of all unutilized Incremental Commitments and Incremental Loans does not exceed the Incremental Amount (and the Borrower shall deliver a certificate, on or prior to the date on which such
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Incremental Commitment shall become effective to the Facilities Administrative Agents certifying that the Borrower is in compliance with this Section 4.17). Any Incremental Term Loan Commitment Incurred in the form of increases to any Class of existing Term Loans shall be identical to and form part of such Term Loans. Any Incremental Revolving Commitments shall be Incurred in the form of increases to the Revolving Commitments and shall be identical to and form part of such Revolving Facility.
(b) Each request from the Borrower pursuant to this Section 4.17 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender or by any other bank or financial institution (any such bank or other financial institution, an “Additional Lender”) subject, in respect of any Additional Lender not already a Lender hereunder, to the same consent requirements that would apply to such Lender as an assignee pursuant to Section 11.6. Any allocation of any Incremental Commitments to any Affiliated Lender shall be subject to the terms of Section 11.6(g).
(c) No Incremental Commitment or Incremental Loans shall be effective unless the Borrower delivers to the Facilities Administrative Agents an
Incremental Commitment Agreement executed and delivered by the Borrower and the proposed Additional Lenders and such other documentation relating thereto as the Facilities Administrative Agents may reasonably request. Notwithstanding anything in
Section 11.1 to the contrary, an Incremental Commitment Agreement may, without the consent of any other Lender, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Facilities
Administrative Agents, to effect the provisions of this Section 4.17; provided, however, that (i) (A) the Incremental Term Loan Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary
Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Loans, (B) the Incremental Term Loan Commitments and any incremental loans drawn thereunder (the
“Incremental Term Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Loans hereunder and (C) no Incremental Commitment Agreement may provide for any Incremental
Commitment or any Incremental Term Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Loans; (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees;
(iii) the interest rate margins, upfront fees, original issue discount, any interest rate floors and any customary arrangement or commitment fees applicable to the loans made pursuant to the Incremental Commitments shall be determined by the
Borrower and the applicable Additional Lenders; provided, that in the event that the All-In Yield for any Incremental Term Facility incurred by the Borrower on or prior to the date that is twelve
(12) months after the
ClosingFourth Amendment
Effective Date is higher than the All-In Yield for any existing Term Loans hereunder by more than 50 basis points, then the Applicable Margin for such Term
Loans shall be increased to the extent necessary so that the All-In Yield for such Term Loans is equal to the All-In Yield for such Incremental Term Facility
minus 50 basis points; (iv) such Incremental Commitment Agreement may provide for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche
hereunder and may provide class protection for any additional credit facilities in a manner consistent with those provided the Facilities pursuant to the provisions of Section 11.1 as in effect on the Closing Date; (v) the final
maturity date of any Incremental Loans or Incremental Commitments shall be no earlier than the
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Latest Maturity Date and the Weighted Average Life to Maturity of any Incremental Loans made pursuant to Incremental Term Loan Commitments shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans; (vi) the prepayment provisions shall be determined by the Borrower and the applicable Additional Lenders; provided that they shall not be more favorable than the prepayment provisions applicable to the Term Loans; (vii) if such Incremental Loans or Incremental Commitment shall be secured on a junior basis, a Senior Representative validly acting on behalf of the holders of such Indebtedness shall have become party to the Intercreditor Agreement or if such agreement has been previously entered into in connection with any other permitted Indebtedness secured on a junior basis, execute a joinder to such then existing agreement in substantially the form provided therein; and (viii) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Agreement, shall otherwise be reasonably satisfactory to the Facilities Administrative Agents.
(d) The Facilities Administrative Agents shall promptly notify each Lender whenever any Incremental Commitment becomes effective.
(e) No Incremental Commitment Agreement shall become effective unless the Facilities Administrative Agents have received (i) a certificate executed by a Responsible Officer of the Borrower to the effect that no Event of Default has occurred and is continuing (subject to Section 1.3), and (ii) such additional Security Documents, legal opinions, board resolutions, certificates and other documentation as may be required by such Incremental Commitment Agreement or reasonably requested by the Facilities Administrative Agents.
(f) Upon the implementation of any Incremental Revolving Facility pursuant to this Section 4.17, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Facility Lender, and each relevant Incremental Revolving Facility Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each deemed assignment and assumption of participations, all of the Revolving Lenders’ (including each Incremental Revolving Facility Lender) (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans shall be held on a pro rata basis on the basis of their respective Revolving Commitments (after giving effect to any increase in the Revolving Commitment pursuant to this Section 4.17) and (ii) the existing Revolving Lenders shall assign Revolving Loans to certain other Revolving Lenders (including the Revolving Lenders providing the relevant Incremental Revolving Facility), and such other Revolving Lenders (including the Revolving Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Revolving Lenders participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Revolving Commitments (after giving effect to any increase in the Revolving Commitment pursuant to this Section 4.17); it being understood and agreed that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
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(g) Subject to clause (i) below, each Incremental Commitment Agreement shall contain representations and warranties by the Borrower substantially in the form of those made by the Borrower in this Agreement, except for any exceptions, disclosures or modifications reasonably acceptable to the Facilities Administrative Agents, the Borrower and the Additional Lender(s) making an Incremental Commitment pursuant to such Incremental Commitment Agreement; provided that in connection with any Permitted Acquisition or similar committed investment that constitutes a Limited Condition Acquisition, such representations and warranties will be limited to Specified Representations and the Additional Lender(s) making such Incremental Commitment may elect to waive the requirement to make any other representations and warranties.
(h) In connection with any Incremental Commitment Agreement pursuant to this Section 4.17, at the direction and as reasonably requested by Administrative Agent to ensure the continuing priority of the Lien of the Mortgages as security for the Loans,
(A) the Borrower or Loan Party to the Mortgages shall enter into, and deliver to the
Administrative Agent a Modification and (B) Borrower shall deliver, or cause the
title company or local counsel, as applicable, to deliver, to the Administrative Agent local counsel opinions, an endorsement to the relevant title policies, date down(s) or other documents, instruments or evidence of the priority of the Lien of the
Mortgages as security for the Loans, each in form and substance reasonably satisfactory to Administrative Agent. In addition, as reasonably requested by the Administrative Agent, the Borrower shall deliver an updated flood hazard certificate for
each of the Mortgaged Properties.
(h) [reserved].
(i) Notwithstanding anything to the contrary in this Section 4.17 or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, the conditions to entering into and availability of such Incremental Facility (including applicability of customary “SunGard” or other “certain funds” conditionality), and the timing of satisfaction or waiver of any such conditions (as between being satisfied or waived upon execution of an amendment evidencing such Incremental Facility or upon the making of any Incremental Loans thereunder), shall be as agreed to among the Borrower and the Incremental Lenders.
4.18 Extension Amendments. (a) The Borrower may at any time and from time to time request that all or a portion, including one or more Tranches, of any commitments or the Loans (including any Extended Loans), each existing at the time of such request (each, an “Existing Tranche” and the Loans of such Tranche, the “Existing Loans”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of any Existing Tranche (any such Existing Tranche which has been so extended, “Extended Tranche” and the Loans of such Tranche, the “Extended Loans”) and to provide for other terms consistent with this Section 4.18. In order to establish any Extended Tranche, the Borrower shall provide a notice to the Facilities Administrative Agents (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Tranche) (an “Extension Request”) setting forth the proposed terms of the Extended Tranche to be established, which terms (other than provided in Section 4.18(c) below) shall be identical to those applicable to the Existing Tranche from which they are to be extended
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(the “Specified Existing Tranche”) except (x) all or any of the final maturity dates of such Extended Tranches may be delayed to later dates than the final maturity dates of the Specified Existing Tranche, (y) (A) the interest margins with respect to the Extended Tranche may be higher or lower than the interest margins for the Specified Existing Tranche and/or (B) additional fees may be payable to the Lenders providing such Extended Tranche in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the commitment fee, if any, with respect to the Extended Tranche may be higher or lower than the commitment fee, if any, for the Specified Existing Tranche, in each case to the extent provided in the applicable Extension Amendment; provided, that, notwithstanding anything to the contrary in this Section 4.18 or otherwise, (1) such Extended Tranche shall not be, (x) in the case of any Extended Tranche relating to Loans under any of the Term Facilities hereunder, in an amount less than $100,000,000 and shall be in integral multiples of $50,000,000 in excess thereof and (y) in the case of any Extended Tranche relating to Loans under the Revolving Facility hereunder, in an amount less than $50,000,000 and shall be in integral multiples of $25,000,000 in excess thereof, (2) no Extended Tranche shall be secured by or receive the benefit of any collateral, credit support or security that does not secure or support the Existing Tranches, (3) the repayment (other than in connection with a permanent repayment and, if applicable, termination of commitments), the mandatory prepayment and the commitment reduction of any of Loans or Commitments under the Extended Tranches shall be made on a pro rata basis with all other outstanding Loans or Commitments (including all Extended Tranches) respectively; provided, that, Extended Loans may, if the Extending Lenders making such Extended Loans so agree, participate on a less than pro rata basis in any voluntary or mandatory repayment or prepayment or commitment reductions hereunder, (4) the final maturity of any Extended Tranche shall not be earlier than, and if such Extended Tranche is a term facility, shall not have a Weighted Average Life to Maturity shorter than the applicable Specified Existing Tranche, (5) each Lender in the Specified Existing Tranche shall be permitted to participate in the Extended Tranche in accordance with its pro rata share of the Specified Existing Tranche and (6) assignments and participations of Extended Tranches shall be governed by the same assignment and participation provisions applicable to Loans and Commitments hereunder as set forth in Section 11.6. No Lender shall have any obligation to agree to have any of its Existing Loans or, if applicable, commitments of any Existing Tranche converted into an Extended Tranche pursuant to any Extension Request. Any Extended Tranche shall constitute a separate Tranche of Loans (and, if applicable, commitments) from the Specified Existing Tranches and from any other Existing Tranches (together with any other Extended Tranches so established on such date).
(b) The Borrower shall provide the applicable Extension Request at least five (5) Business Days prior to the date on which Lenders under the applicable Existing Tranche or Existing Tranches are requested to respond. Any Lender (an “Extending Lender” and with respect to Term Loans an “Extending Term Loan Lender” and with respect to Revolving Commitments an “Extending Revolving Lender”) wishing to have all or a portion of its Specified Existing Tranche converted into an Extended Tranche shall notify the Facilities Administrative Agents (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Specified Existing Tranche that it has elected to convert into an Extended Tranche. In the event that the aggregate amount of the Specified Existing Tranche subject to Extension Elections exceeds the amount of Extended Tranches requested pursuant to the Extension Request, the Specified Existing Tranches subject to Extension Elections shall be converted to Extended Tranches on a pro rata basis based on the amount of Specified Existing Tranches included in each such Extension Election.
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(c) Extended Tranches shall be established pursuant to an amendment (an “Extension Amendment”) to this Agreement (which may include amendments to provisions related to maturity, interest margins, fees or prepayments referenced in Section 4.18(a) and which, except to the extent expressly contemplated by the penultimate sentence of this Section 4.18(c) and notwithstanding anything to the contrary set forth in Section 11.1, shall not require the consent of any Lender other than the Extending Lenders with respect to the Extended Tranches established thereby) executed by the Borrower, the Facilities Administrative Agents and the Extending Lenders. No Extension Amendment shall provide for any Extended Tranche in an aggregate principal amount that is less than (x) in the case of any Extended Tranche relating to Loans under either of the Term Facilities hereunder, in an amount less than $100,000,000 and shall be in integral multiples of $50,000,000 in excess thereof and (y) in the case of any Extended Tranche relating to Loans under the Revolving Facility hereunder, in an amount less than $50,000,000 and shall be in integral multiples of $25,000,000 in excess thereof; provided, that no Extension Amendment may provide for any Extended Tranche to be secured by any Collateral or other assets of any Loan Party that does not also secure the Existing Tranches. It is understood and agreed that each Lender has consented to each amendment to this Agreement and the other Loan Documents authorized by this Section 4.18 and the arrangements described above in connection therewith for all purposes requiring its consent, and shall at the effective time thereof be deemed to consent to each amendment to this Agreement and the other Loan Documents authorized by this Section 4.18 and the arrangements described above in connection therewith. In connection with any Extension Amendment, the Borrower shall, if requested by the Facilities Administrative Agents, deliver an opinion of counsel reasonably acceptable to the Facilities Administrative Agents as to the enforceability of such Extension Amendment, this Agreement as amended thereby, and such of the other Loan Documents (if any) as may be amended or affected thereby.
(d) Notwithstanding anything to the contrary contained in this Agreement, (A) on any date on which any Existing Tranche is converted to extend the related scheduled maturity date(s) in accordance with Section 4.18(a) (an “Extension Date”), in the case of the Specified Existing Tranche of each Extending Lender, the aggregate principal amount of such Specified Existing Tranche shall be deemed reduced by an amount equal to the aggregate principal amount of Extended Tranche so converted by such Lender on such date, and such Extended Tranches shall be established as a separate Tranche from the Specified Existing Tranche and from any other Existing Tranches (together with any other Extended Tranches so established on such date) and (B) if, on any Extension Date, any Revolving Loans of any Extending Lender are outstanding under the applicable Specified Existing Tranches, such loans (and any related participations) shall be deemed to be allocated as Extended Loans (and related participations) and Existing Loans (and related participations) in the same proportion as such Extending Lender’s applicable Specified Existing Tranches to the applicable Extended Tranches so converted by such Lender on such date.
(e) If, in connection with any proposed Extension Amendment, any Lender declines to consent to the applicable extension on the terms and by the deadline set forth in the applicable Extension Request (each such Lender, a “Non-Extending Lender”) then the Borrower may, on notice to the Applicable Administrative Agent and the Non-Extending Lender, (A) replace such Non-Extending Lender by causing such Lender to (and such Lender shall be obligated to) assign pursuant to Section 11.6 (with the assignment fee and any other costs and expenses to be paid by the Borrower in such instance) all of its rights and obligations under this
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Agreement to one or more assignees; provided, that neither the Applicable Administrative Agent nor any Lender shall have any obligation to the Borrower to obtain a replacement Lender; provided, further, that the applicable assignee shall have agreed to provide Loans and/or a commitment on the terms set forth in such Extension Amendment; provided, further, that all obligations of the Borrower owing to the Non-Extending Lender relating to the Loans and participations so assigned shall be paid in full at par by the assignee Lender to such Non-Extending Lender concurrently with such Assignment and Assumption or (B) prepay the Loans and, at the Borrower’s option, if applicable, terminate the Commitments of such Non-Extending Lender, in whole or in part, subject to Section 4.11, without premium or penalty. In connection with any such replacement under this Section 4.18, if the Non-Extending Lender does not execute and deliver to the Applicable Administrative Agent a duly completed Assignment and Assumption and/or any other documentation necessary to reflect such replacement by the later of (a) the date on which the replacement Lender executes and delivers such Assignment and Assumption and/or such other documentation and (b) the date as of which all obligations of the Borrower owing to the Non-Extending Lender relating to the Loans and participations so assigned shall be paid in full in cash by the assignee Lender to such Non-Extending Lender, then such Non-Extending Lender shall be deemed to have executed and delivered such Assignment and Assumption and/or such other documentation as of such date without any action on the part of such Non-Extending Lender and the Assignment and Assumption executed by the replacement Lender shall be effective for the purposes of this Section 4.18.
(f) This Section 4.18 shall supersede any provisions in Section 4.8 or Section 11.1 to the contrary.
(g) No amendment, conversion or exchange of Loans pursuant to any Extension Amendment in accordance with Section 4.18 shall constitute a voluntary or mandatory payment or prepayment for purposes of this Agreement.
4.19 Refinancing Facilities. (a) At any time after the Closing Date, the Borrower may obtain, from any Lender or any Additional Lender, Credit Agreement Refinancing Indebtedness in respect of (A) all or any portion of the Term Loans then outstanding under this Agreement (which for purposes of this clause (A) will be deemed to include any then outstanding Incremental Loans under any Incremental Term Loan Commitments) and any then outstanding Refinancing Term Loans or (B) all or any portion of the Revolving Loans (or unused Revolving Commitments or any Incremental Loans or unused Incremental Revolving Commitments or any unused Refinancing Revolving Commitment of Refinancing Revolving Loans) under this Agreement, in the form of (x) Refinancing Term Loans or Refinancing Term Commitments or (y) Refinancing Revolving Loans or Refinancing Revolving Commitments, as the case may be, in each case pursuant to a Refinancing Amendment; provided, that such Credit Agreement Refinancing Indebtedness (i) will rank pari passu or junior in right of payment and of security with the other Loans and Commitments hereunder, (ii) will have such pricing and optional prepayment terms as may be agreed by the Borrower and the Lenders thereof, (iii) (x) with respect to any Refinancing Revolving Loans or Refinancing Revolving Commitments, will have a maturity date that is not prior to the maturity date of Revolving Loans (or unused Revolving Commitments) being refinanced and (y) with respect to any Refinancing Term Loans or Refinancing Term Commitments, will have a maturity date that is not prior to the maturity date of, and will have a Weighted Average Life to Maturity that is not shorter than, the Term Loans being refinanced, (iv)
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will have such pricing, premiums, optional prepayment terms and financial covenants as may be agreed by the Borrower and the Lenders thereof, and (v) will have other terms and conditions that are substantially identical to (or in the case of any Credit Agreement Refinancing Indebtedness in the form of notes, are on market terms or are substantially identical to), or (taken as a whole) are no more favorable to the investors providing such Credit Agreement Refinancing Indebtedness than the Refinanced Debt; provided, further, that the terms and conditions applicable to such Credit Agreement Refinancing Indebtedness may provide for any additional or different financial or other covenants or other provisions that are agreed between the Borrower and the Lenders thereof and applicable only during periods after the Latest Maturity Date that is in effect on the date such Credit Agreement Refinancing Indebtedness is issued, Incurred or obtained. The effectiveness of any Refinancing Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 6.2 and, to the extent reasonably requested by the Facilities Administrative Agents, receipt by the Facilities Administrative Agents of legal opinions, board resolutions, officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Closing Date (other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Facilities Administrative Agents). Each Tranche of Credit Agreement Refinancing Indebtedness Incurred under this Section 4.19 shall be in an aggregate principal amount that is (x) not less than $100,000,000 in the case of Refinancing Term Loans or $50,000,000 in the case of Refinancing Revolving Loans and (y) an integral multiple of $50,000,000 in excess thereof in the case of Refinancing Term Loans or $25,000,000 in excess thereof in the case of Refinancing Revolving Loans. Any Refinancing Amendment may provide for the issuance of Letters of Credit for the account of the Borrower, or the provision to the Borrower of Swingline Loans, pursuant to any Refinancing Revolving Commitments established thereby, in each case on terms substantially equivalent to the terms applicable to Letters of Credit and Swingline Loans under the Revolving Commitments and in each case with the consent of the applicable Issuing Lenders and Swingline Lenders. The Facilities Administrative Agents shall promptly notify each Lender as to the effectiveness of each Refinancing Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Refinancing Amendment, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Credit Agreement Refinancing Indebtedness Incurred pursuant thereto (including any amendments necessary to treat the Loans and Commitments subject thereto as Refinancing Term Loans, Refinancing Revolving Loans, Refinancing Revolving Commitments and/or Refinancing Term Commitments). Any Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Facilities Administrative Agents, to effect the provisions of this Section. In addition, if so provided in the relevant Refinancing Amendment and with the consent of each Issuing Lender, participations in Letters of Credit expiring on or after the Revolving Termination Date shall be reallocated from Lenders holding Revolving Commitments to Lenders holding extended revolving commitments in accordance with the terms of such Refinancing Amendment; provided, however, that such participation interests shall, upon receipt thereof by the relevant Lenders holding Revolving Commitments, be deemed to be participation interests in respect of such Revolving Commitments and the terms of such participation interests (including, without limitation, the commission applicable thereto) shall be adjusted accordingly.
(b) This Section 4.19 shall supersede any provisions in Section 4.8 or Section 11.1 to the contrary.
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SECTION 5. REPRESENTATIONS AND WARRANTIES
To induce the Facilities Administrative Agents and the Lenders to enter into this Agreement and to make the Loans and issue or participate in the Letters of Credit, the Borrower hereby represents and warrants to the Facilities Administrative Agents and each Lender that, on and as of the Closing Date and on and as of each date as required by Section 6.2(b):
5.1 Financial Condition.
(a) The (i) audited consolidated balance sheets and the related consolidated statements of income and of cash flows of the Borrower and
its consolidated Subsidiaries for the fiscal year ended March 31, 20182024, reported on by Deloitte & Touche LLP, and for the fiscal year ended March 31, 20192025
, reported on by Deloitte & Touche LLP, and (ii) the unaudited consolidated balance sheet of the Borrower and its consolidated Subsidiaries as of
June 30,
2019December 31, 2025 and the related consolidated statements of income or operations, changes in stockholders’ equity and cash
flows as of and for the
three-monthnine-month
period ended
June
30, 2019December 31,
2025 and for the comparable period of the preceding fiscal year certified by a Responsible Officer of the Borrower, in each case, present fairly in all material respects the consolidated financial condition of the Borrower and its
consolidated Subsidiaries, as of such dates and their consolidated results of operations and consolidated cash flows for the periods to which they relate (subject to normal year-end audit adjustments and the
absence of footnotes) (such financial statements, the “Borrower Historical Financial Statements”). All such financial statements, including the related schedules and notes (if any) thereto, have been prepared in accordance with
GAAP applied consistently throughout the periods involved (except as disclosed therein).
(b) The (i) audited consolidated balance sheets and the related consolidated statements of income, stockholders’ equity and of cash flows of the Target and its consolidated Subsidiaries for the fiscal year ended December 31, 2017, reported on by Deloitte & Touche LLP, and for the fiscal year ended December 31, 2018, reported on by Deloitte & Touche LLP, and (ii) the unaudited consolidated balance sheet of the Target and its consolidated Subsidiaries as of May 31, 2019 and the related consolidated statement of income, stockholders’ equity and cash flows as of and for the five-month period ended May 31, 2019, in each case, present fairly in all material respects the consolidated financial condition of the Target and its consolidated Subsidiaries, as of such dates and their consolidated results of operations and consolidated cash flows for the periods to which they relate (subject to normal year-end audit adjustments and the absence of footnotes) (such financial statements, the “Target Historical Financial Statements”). All such financial statements, including the related schedules and notes (if any) thereto, have been prepared in accordance with GAAP applied consistently throughout the periods involved (except as approved by the aforementioned firms of accountants and disclosed therein).
(c) As of the Closing Date, no Group Member has any material Guarantee Obligations, contingent liabilities or any long-term leases or unusual forward or long-term commitments, including any interest rate or foreign currency swap or exchange transaction or other obligation in respect of derivatives, that are not reflected in the most recent financial statements referred to in this Section 5.1 other than as contemplated by the Loan Documents.
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5.2 No Change. There has not been since the Closing Date, any development or event that has had or would reasonably be expected to have a Material Adverse Effect.
5.3 Corporate Existence; Compliance with Law. Each of the Borrower and its Material Subsidiaries (a) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (b) has the organizational power and authority, to own and operate its property, to lease the property it operates as lessee and to conduct the business in which it is currently engaged, (c) is duly qualified as a foreign corporation or other organization and in good standing under the laws of each jurisdiction where its ownership, lease or operation of property or the conduct of its business requires such qualification except to the extent the failure to be so qualified would not, in the aggregate, reasonably be expected to have a Material Adverse Effect and (d) is in compliance with all Requirements of Law and Organizational Documents, except to the extent that the failure to comply therewith would not, in the aggregate, reasonably be expected to have a Material Adverse Effect.
5.4 Power; Authorization; Enforceable Obligations. Each Loan Party has the organizational power and authority, and the legal right, to make, deliver and perform the Loan Documents to which it is a party and, in the case of the Borrower, to obtain extensions of credit under this Agreement. Each Loan Party has taken all necessary organizational action to authorize the execution, delivery and performance of the Loan Documents to which it is a party and, in the case of the Borrower, to authorize the borrowings under this Agreement. No consent or authorization of, filing with, notice to or other act by or in respect of, any Governmental Authority or any other Person is required in connection with the Transactions, the borrowings under this Agreement or the execution, delivery, performance, validity or enforceability of the Loan Documents except (i) consents, authorizations, filings and notices described in Schedule 5.4, which consents, authorizations, filings and notices have been obtained or made and are in full force and effect except as specifically described in Schedule 5.4 and (ii) the filings referred to in Section 5.19. Each Loan Document has been duly executed and delivered on behalf of each Loan Party party thereto. This Agreement constitutes, each other Loan Document upon execution will constitute the legal, valid and binding obligation of each Loan Party party thereto, enforceable against such Loan Party in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law).
5.5 No Legal Bar. The execution, delivery and performance of the Loan Documents and the issuance of Letters of Credit and the borrowings hereunder do not and will not violate in any material respect any Requirement of Law, Organizational Documents or any material Contractual Obligation of the Borrower or any Material Subsidiary or result in or require the creation or imposition of any Lien on any property or revenues of the Borrower or any Material Subsidiary in any material respect pursuant to any Requirement of Law, Organizational Documents or material Contractual Obligation (other than the Liens created by the Security Documents). No Group Member is subject to any Requirement of Law, Organizational Documents or Contractual Obligation that has had or would reasonably be expected to have a Material Adverse Effect.
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5.6 Litigation. Except as set forth on Schedule 5.6, no litigation, investigation or proceeding of or before any arbitrator or Governmental Authority is pending or, to the knowledge of the Borrower, threatened by or against any Group Member or against any of their respective properties or revenues (a) with respect to any of the Loan Documents or any of the transactions contemplated hereby or thereby, or (b) that would reasonably be expected to have a Material Adverse Effect.
5.7 No Default. No Default or Event of Default has occurred and is continuing.
5.8 Ownership of Property; Liens. Each of the Borrower and its Material Subsidiaries has good and marketable title to the Mortgaged Properties,
and, to the knowledge of the Borrower, has good and
valid title to, or a valid leasehold interest in, all its other
material property and none of such property is subject to any Lien except Permitted Liens.
5.9 Intellectual Property. Each Group Member owns, or is licensed to use, all material Intellectual Property necessary for the conduct of its business as currently conducted, except to the extent such failure to own or possess the right to use, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. Except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect, (a) no claim has been asserted and is pending before a governmental authority against any Group Member by any Person challenging or questioning the use of any Intellectual Property, or the validity or enforceability of any Intellectual Property owned by any Group Member, and (b) the use of Intellectual Property by each Group Member does not infringe on the rights of any Person in any material respect.
5.10 Taxes. Each Group Member has filed or caused to be filed all Federal and state income and other material Tax returns that are required to be filed and has paid all material Taxes due and payable by such Group Member or any assessments made against it or any of its property and all other material Taxes, fees or other charges imposed on it or any of its property by any Governmental Authority (except that are being contested in good faith by appropriate proceedings diligently conducted and for which such Person, as applicable, has set aside on its books adequate reserves in conformity with GAAP); as of the Closing Date, no tax Lien has been filed (other than Liens for taxes not yet delinquent or that are being contested in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided on the books of the relevant Group Member), and, to the knowledge of the Borrower, no claim is being asserted, with respect to any material Tax, fee or other charge. No Group Member intends to treat the Loan, the Transactions, or any other transaction contemplated hereby as being a “reportable transaction” (within the meaning of Treasury Regulation section 1.6011-4).
5.11 Federal Regulations. No part of the proceeds of any Loans or Revolving Extensions of Credit will be used for “buying” or “carrying” any “margin stock” within the respective meanings of each of the quoted terms under Regulation U as now and from time to time hereafter in effect or for any purpose that violates the provisions of the Regulations of the Board, including, without limitation, Regulation T, Regulation U or Regulation X of the Board.
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5.12 Labor Matters. Except as, in the aggregate, there has not had and would not reasonably be expected to have a Material Adverse Effect: (a) there are no strikes or other labor disputes against any Group Member pending or, to the knowledge of the Borrower, threatened; (b) to the knowledge of the Borrower, hours worked by and payment made to employees of each Group Member have not been in violation of the Fair Labor Standards Act or any other applicable Requirement of Law regarding minimum wages or overtime payments; and (c) all payments due from any Group Member on account of employee health and welfare insurance have been paid or accrued as a liability on the books of the relevant Group Member.
5.13 ERISA. Neither a Reportable Event nor a failure to satisfy the minimum funding standard (within the meaning of Sections 412 and 430 of the Code or Sections 302 and 303 of ERISA) has occurred during the five-year period prior to the date on which this representation is made or deemed made with respect to any Single Employer Plan, whether or not waived, which resulted in any material liability to any Group Member or Commonly Controlled Entity, and each Single Employer Plan has complied in all material respects with the applicable provisions of ERISA and the Code. No termination of a Single Employer Plan has occurred, and no Lien in favor of the PBGC or a Plan has arisen, during such five-year period. The present value of all accrued benefits under each Single Employer Plan (based on those assumptions used to fund such Plans) did not, as of the last annual valuation date prior to the date on which this representation is made or deemed made, exceed the value of the assets of such Plan allocable to such accrued benefits by a material amount. No Group Member or Commonly Controlled Entity has had a complete or partial withdrawal from any Multiemployer Plan that has resulted or would reasonably be expected to result in a material liability under ERISA. No such Multiemployer Plan is Insolvent, or was determined to or expected to be in “critical” or “endangered” status under Section 432 of the Code or Section 305 of ERISA, and no Single Employer Plan was determined to or expected to be in “at risk” status as defined in Section 430 of the Code or Section 303 of ERISA, and no Group Member or Commonly Controlled Entity would become subject to any material liability under ERISA if any Group Member or Commonly Controlled Entity were to withdraw completely from all Multiemployer Plans as of the valuation date most closely preceding the date on which this representation is made or deemed made. No Group Member has any liability with respect to any employee benefit plan that is not subject to the laws of the United States or a political subdivision thereof that would reasonably be expected to result in a Material Adverse Effect.
5.14 Investment Company Act. No Group Member is an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended.
5.15 Restricted Subsidiaries. As of the Closing Date, (a) Schedule 5.15 sets forth the name and jurisdiction of organization of each Restricted Subsidiary and, as to each such Restricted Subsidiary, the percentage of each class of Capital Stock owned by any Group Member and (b) there are no outstanding subscriptions, options, warrants, calls, rights or other agreements or commitments of any nature relating to any Capital Stock of the Group Member (other than the Borrower), except as created by the Loan Documents.
5.16 Use of Proceeds. (a) The proceeds of the Initial Term Loans made on the Closing Date shall be used to finance the Transactions and any amounts that remain unutilized after the consummation of the Transactions may be used by the Borrower and its Subsidiaries after the Closing Date for ongoing working capital needs and general corporate purposes and (b) on or after the Closing Date, the Borrower and its Subsidiaries may use proceeds from Revolving Loans, Letters of Credit, Swingline Loans and proceeds of any Incremental Loans for working capital, Permitted Acquisitions or other general corporate purposes.
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5.17 Environmental Matters. Except as has not had and would not reasonably be expected to have a Material Adverse Effect:
(a) the facilities and properties currently owned, leased or operated by any Group Member (the “Properties”) do not contain either (i) any Materials of Environmental Concern or (ii) contamination in amounts or concentrations or under circumstances, in either case that constitute, or would reasonably be expected to give rise to liability of any Group Member under, any Environmental Law;
(b) no Group Member has received any written notice of violation, alleged violation, non-compliance or liability or potential liability, under Environmental Laws with regard to any of the Properties or any Group Member’s operation of any of the Properties or the business operated by any Group Member (the “Business”), nor does the Borrower have knowledge that any such notice is likely to be received or is being threatened;
(c) the Group Members (i) conduct the Business in compliance with Environmental Law, (ii) hold all Environmental Permits (each of which is in full force and effect) required pursuant to Environmental Law for the conduct of the Business, and (iii) are in compliance with all such Environmental Permits;
(d) Materials of Environmental Concern have not been transported or disposed of by or on behalf of any Group Member from the Properties in violation of, or in a manner or to a location that would give rise to liability under, any Environmental Law, nor during any Group Member’s ownership or operation of the Properties or, to the knowledge of the Borrower, at any formerly owned, leased or operated facilities or properties (“Former Properties”) have any material quantity of Materials of Environmental Concern been generated, treated, stored or disposed of, released or threatened to be released at, on or under any of the Properties or Former Properties or otherwise in connection with the Business in violation of Environmental Law, or in a manner that could give rise to liability under, any Environmental Law; and
(e) No judicial proceeding or governmental or administrative action is pending or, to the knowledge of the Borrower, threatened, under any Environmental Law to which any Group Member is or is reasonably likely to be named as a party with respect to the Properties or the Business or, to the knowledge of the Borrower, any Former Properties, nor are there any consent decrees, consent orders, administrative orders or other orders, or other binding administrative or judicial requirements outstanding under any Environmental Law with respect to the Properties or the Business or, to the knowledge of the Borrower, any Former Properties.
5.18 Accuracy of Information, etc. No statement or information (other than any projections and information of a general economic or general industry nature) contained in this Agreement, any other Loan Document, or any other material document, certificate or written statement furnished by or on behalf of any Group Member to any Facilities Administrative Agent or the Lenders, or any of them, for use in connection with the transactions contemplated by this
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Agreement or the other Loan Documents, taken as a whole, contained as of the date such statement, information, document or certificate was so furnished, any untrue statement of a material fact or omitted to state a material fact necessary to make the statements contained herein or therein not materially misleading, in the light of the circumstances under which they were made (after giving effect to all supplements). The forecasts, projections and pro forma financial information contained in the materials referenced above are based upon good faith estimates and assumptions believed by management of the Borrower to be reasonable at the time made, it being recognized by the Lenders that such financial information as it relates to future events is not to be viewed as fact and that actual results during the period or periods covered by such financial information may differ from the projected results set forth therein by a material amount.
5.19 Security Documents. (a) The Guarantee and Collateral Agreement is effective to create in favor of the Administrative Agent, for the benefit of the Secured Parties, a legal, valid and enforceable security interest in the Collateral described therein and proceeds and products thereof, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally. In the case of the Pledged Stock consisting of certificated securities described in the Guarantee and Collateral Agreement, when stock certificates representing such Pledged Stock are delivered to the Administrative Agent, and in the case of the other Collateral described in the Guarantee and Collateral Agreement, to the extent provided therein, when financing statements, other filings specified on Schedule 4 to the Guarantee and Collateral Agreement in appropriate form are filed in the offices specified on Schedule 4 to the Guarantee and Collateral Agreement and the other actions described in Section 4.3 of the Guarantee and Collateral Agreement are completed, the Guarantee and Collateral Agreement shall be effective to create a perfected Lien on, and security interest in, all right, title and interest of the Loan Parties in such Collateral and the proceeds thereof, as security for the Obligations (as defined in the Guarantee and Collateral Agreement), in each case (to the extent provided therein) prior and superior in right to any other Person (except for Permitted Liens), to the extent that a Lien in such Collateral can be perfected by the filing of the UCC-1 financing statement or other filing specified on Schedule 4 to the Guarantee and Collateral Agreement;
(b) Upon execution thereof, each of the Mortgages shall be effective to create in favor of the Administrative Agent, for the benefit of the Secured Parties, a legal, valid and enforceable
Lien on the Mortgaged Properties described therein and proceeds and products thereof, and when the Mortgages are appropriately filed or recorded and indexed in the appropriate offices as may be required under applicable Requirements of Law (to the
extent required hereunder and thereunder), together with payment of appropriate filing or recording fees and applicable taxes, if any, in the offices specified therein, each such Mortgage shall constitute, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally (to the extent provided therein), a perfected Lien on, and security interest in, all right, title and interest of the Loan Parties in the Mortgaged Properties and the
proceeds thereof, as security for the Obligations (as defined in the relevant Mortgage), in each case (except as expressly set forth therein) prior and superior in right to any other Person (except for Permitted Liens).
(b) [Reserved].
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(c) When delivered and at all times thereafter, each Intellectual Property Security Agreement, together with the Guarantee and Collateral Agreement, is effective to create in favor of the Administrative Agent, for the benefit of the Secured Parties, a legal, valid and enforceable security interest in the Intellectual Property Collateral described therein and the proceeds and products thereof, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally. Upon the filing of (i) each Intellectual Property Security Agreement in the appropriate indexes of the United States Patent and Trademark Office (the “PTO”) relative to United States patents and United States trademarks, and the United States Copyright Office relative to United States copyrights, if any, together with provision for payment of all requisite fees, and (ii) financing statements in appropriate form for filing in the offices specified on Schedule 4 of the Guarantee and Collateral Agreement, each Intellectual Property Security Agreement shall constitute (to the extent provided in the Guarantee and Collateral Agreement) a perfected Lien on, and security interests in, all right, title and interest of the Loan Parties in such Intellectual Property Collateral and the proceeds and products thereof, as security for the Obligations (as defined in the Guarantee and Collateral Agreement), in each case (except as expressly set forth therein) prior and superior in right to any other Person (except for Permitted Liens); provided, that, notwithstanding anything to the contrary in any of the Loan Documents, the Loan Parties shall not have any obligation to perfect any security interest or lien, or record any notice thereof, in any Intellectual Property Collateral in any jurisdiction other than the United States of America, and subsequent filings in the PTO and United States Copyright Office and actions and filings under applicable law to obtain the equivalent perfection may be necessary with respect to registrations for Intellectual Property acquired by any Loan Party after the Closing Date.
5.20 Solvency. The Borrower and its Subsidiaries, on a consolidated basis, are, and after giving effect to the Transactions and the Incurrence of all Indebtedness and the obligations being Incurred in connection herewith and therewith will be, Solvent.
5.21 Regulation H[Reserved]. No Mortgage encumbers improved real property that is located in an area that has been identified by the Secretary of Housing
and Urban Development as an area having special flood hazards and in respect of which the procurement of flood insurance is required by any Requirement of Law, unless such flood insurance has been obtained and is in full force and
effect. .
5.22 Anti-Terrorism Laws. (a) No Group Member or any Subsidiary of any Group Member is in violation of (i) the Trading with the Enemy Act, as amended, and each of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) and any other enabling legislation or executive order relating thereto, (ii) the PATRIOT Act or (iii) or any other similar anti-terrorism laws. No part of the proceeds of the Loans or the Revolving Extensions of Credit will be used, directly or indirectly, for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977 or the United Kingdom Bribery Act of 2010, as amended.
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(b) No Group Member or Subsidiary of any Group Member is any of the following (each a “Blocked Person”):
(i) a Person that is listed in the annex to, or is otherwise subject to the provisions of, Executive Order No. 13224;
(ii) a Person owned or controlled by, or acting for or on behalf of, any Person that is listed in the annex to, or is otherwise subject to the provisions of, Executive Order No. 13224;
(iii) a Person or entity with which any bank or other financial institution is prohibited from dealing or otherwise engaging in any transaction by any applicable anti-terrorism law;
(iv) a Person or entity that commits, threatens or conspires to commit or supports “terrorism” as defined in Executive Order No. 13224;
(v) a Person or entity that is named as a “specially designated national” on the most current list published by the U.S. Treasury Department Office of Foreign Asset Control at its official website or any replacement website or other replacement official publication of such list; or
(vi) a Person or entity who is affiliated with a Person or entity listed above.
(c) No Group Member knowingly (i) conducts any business or engages in making or receiving any contribution of funds, goods or services to or for the benefit of any Blocked Person or (ii) deals in, or otherwise engages in any transaction relating to, any property or interests in property blocked pursuant to Executive Order No. 13224.
5.23 Anti-Corruption Laws and Sanctions. The Borrower has implemented and maintains in effect policies and procedures reasonably designed to promote compliance by the Borrower, its Subsidiaries and their respective directors, officers and employees with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers, and, to the knowledge of the Borrower, its directors, employees and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any of its Subsidiaries or any of their respective officers, or (b) to the knowledge of the Borrower, any director, employee or agent of the Borrower or any of its Subsidiaries that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No borrowing or Letter of Credit, use of proceeds or other transaction contemplated by this Agreement will directly or knowingly indirectly violate Anti-Corruption Laws or applicable Sanctions.
5.24 EEA Financial Institutions. No Loan Party is an Affected Financial Institution.
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5.25 Beneficial Ownership Certificate. The information included in the Beneficial Ownership Certificate last delivered with respect to the Borrower, if applicable, is true and correct in all material respects.
5.26 Outbound Investment Rules. Neither the Borrower nor any of its Subsidiaries is a ‘covered foreign person’ as that term is used in the Outbound Investment Rules. Neither the Borrower nor any of its Subsidiaries currently engages, or has any present intention to engage in the future, directly or indirectly, in (i) a “covered activity” or a “covered transaction”, as each such term is defined in the Outbound Investment Rules, (ii) any activity or transaction that would constitute a “covered activity” or a “covered transaction”, as each such term is defined in the Outbound Investment Rules, if the Borrower were a U.S. Person or (iii) any other activity that would cause any Facilities Administrative Agent or any Lender to be in violation of the Outbound Investment Rules or cause any Facilities Administrative Agent or any Lender to be legally prohibited by the Outbound Investment Rules from performing under this Agreement.
SECTION 6. CONDITIONS PRECEDENT
6.1 Conditions to Initial Extension of Credit. The agreement of each Lender to make the initial extension of credit requested to be made by it on the Closing Date is subject to the satisfaction (or waiver), prior to the making of such extension of credit, of the following conditions precedent:
(a) Credit Agreement; Guarantee and Collateral Agreement. The Administrative Agent shall have received (i) this Agreement, executed and delivered by the Borrower, the Administrative Agent and each Person identified herein as a Lender signatory hereto, and (ii) the Guarantee and Collateral Agreement, executed and delivered by the Borrower and each Subsidiary Guarantor.
(b) Closing Certificate of the Borrower. The Administrative Agent shall have received (i) a certificate executed on behalf of the Borrower by a Responsible Officer of the Borrower dated as of the Closing Date, substantially in the form of Exhibit J, and (ii) a good standing certificate for the Borrower from its jurisdiction of organization.
(c) Financial Statements. The Administrative Agent shall have received the Borrower Historical Financial Statements and the Target Historical Financial Statements.
(d) Fees. The Administrative Agent shall have received confirmation reasonably satisfactory to it that all fees required to be paid and all reasonable and documented invoiced expense reimbursements (to the extent invoiced at least 2 Business Days prior to the Closing Date) payable by any Loan Party for account of any of the Other Representatives, Administrative Agent or Lenders on or before the Closing Date will be paid concurrently with the funding of the Term Loans on the Closing Date (which amounts may be offset against the proceeds of the Facilities).
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(e) Closing Certificate of the Guarantors, Certificate of Incorporation; Good Standing. The Administrative Agent shall have received (i) a certificate of each Subsidiary Guarantor, dated the Closing Date, substantially in the form of Exhibit C, and (ii) a good standing certificate for each Subsidiary Guarantor from its jurisdiction of organization.
(f) Legal Opinions. The Administrative Agent shall have received a customary legal opinion of Squire Patton Boggs (US) LLP, counsel to the Loan Parties.
(g) Pledged Stock; Stock Powers; Pledged Notes. Except as set forth on Schedule 7.13, arrangements consistent with the applicable payoff letters or otherwise reasonably satisfactory to the Administrative Agent shall have been made for the delivery of all (i) certificates representing the shares of Capital Stock listed on Schedule 2 to the Guarantee and Collateral Agreement, together with an undated stock power or equivalent for each such certificate executed in blank by the pledgor thereof and (ii) each promissory note (if any) listed on Schedule 2 to the Guarantee and Collateral Agreement endorsed (without recourse) in blank (or accompanied by an executed transfer form in blank) by the pledgor thereof.
(h) Solvency Certificate. The Administrative Agent shall have received a solvency certificate of the chief financial officer of the Borrower, substantially in the form of Exhibit I, which shall document the solvency of the Borrower and its Subsidiaries, on a consolidated basis, as of the Closing Date after giving effect to the Transactions and other transactions contemplated hereby.
(i) Existing Indebtedness. Arrangements reasonably satisfactory to the Administrative Agent shall have been made for the delivery of all documents or instruments necessary to release all Liens securing all obligations of the Borrower, the Target and their respective Subsidiaries under the Existing Debt Agreements and all Guarantee Obligations of the Borrower, the Target and their respective Subsidiaries in respect of the obligations under the Existing Debt Agreements.
(j) Filings, Registrations and Recordings. Any Uniform Commercial Code financing statement required by the Guarantee and Collateral Agreement or under law or reasonably requested by the Administrative Agent to be filed, registered or recorded in order to create in favor of the Administrative Agent, for the benefit of the Secured Parties, a perfected Lien on the Collateral described therein (to the extent such Lien may be perfected by the filing of UCC financing statement), prior and superior in right to any other Person (other than with respect to Liens expressly permitted by Section 8.3), shall be in proper form for filing, registration or recordation.
(k) Lien Searches. The Administrative Agent shall have received the results of a recent lien search with respect to each Loan Party in the jurisdiction where each such Loan Party is located, and such search shall reveal no liens on any of the assets of the Loan Parties except for liens permitted by Section 8.3 or discharged substantially concurrently with or prior to the Closing Date pursuant to documentation reasonably satisfactory to the Administrative Agent.
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(l) Perfection Certificate. The Administrative Agent shall have received a perfection certificate executed by the Borrower, dated as of the Closing Date, in form and substance reasonably acceptable to the Administrative Agent.
(m) Patriot Act. The Lenders shall have received from the Loan Parties, at least three Business Days prior to the Closing Date, (i) to the extent reasonably requested by the Administrative Agent or any Lender at least ten (10) Business Days prior to the Closing Date, all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the Patriot Act and the Beneficial Ownership Regulation and (ii) if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certificate in relation to the Borrower.
(n) Specified Acquisition Representation and Specified Representations. (i) The Specified Acquisition Agreement Representations shall be true and correct as of the Closing Date and (ii) the Specified Representations shall be true and correct in all material respects as of the Closing Date, except, in each case, to the extent that such representations and warranties refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; provided that, in case of subclause (i) hereof, such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof.
(o) Target Material Adverse Effect. Since December 31, 2018, no Target Material Adverse Effect shall have occurred.
(p) Concurrent Acquisition. Substantially concurrently with the initial funding of the Facilities, the Acquisition shall be consummated, in all material respects, in accordance with the terms of the Acquisition Agreement.
(q) Borrowing Notices. The Administrative Agent shall have received a notice of borrowing pursuant to Section 2.2.
6.2 Conditions to Each Extension of Credit after the Closing Date. Subject to Section 1.3 and Section 4.17(i), the agreement of each Lender to make any extension of credit requested to be made by it on the date of this Agreement or any other date is subject to the satisfaction (or waiver) of the following conditions precedent:
(a) No Default. No Default or Event of Default shall have occurred and be continuing on such date or after giving effect to the extensions of credit requested to be made on such date.
(b) Representations and Warranties. Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects on and as of such date as if made on and as of such date, except to the extent that such representations and warranties refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; provided that, in each case, such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof.
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(c) Borrowing Notices. The Revolving Administrative Agent shall have received (i) a notice of borrowing pursuant to Section 3.2 or 3.4, as the case may be, in connection with any borrowing under the Revolving Commitments or Swingline Loans or (ii) an Application pursuant to Section 3.8 for issuance of a Letter of Credit on behalf of the Borrower.
Each borrowing by and issuance or increase of a Letter of Credit on behalf of the Borrower hereunder shall constitute a representation and warranty by the Borrower as of the date of such extension of credit that the conditions contained in this Section 6.2 have been satisfied.
SECTION 7. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments remain in effect, any Letter of Credit remains outstanding (other than Letters of Credit which have been Cash Collateralized or as to which other arrangements satisfactory to the applicable Issuing Lender shall have been made) or any Loan or other amount (other than contingent surviving indemnity obligations in respect of which no claim or demand has been made) is owing to any Lender or any Facilities Administrative Agent hereunder, the Borrower shall and shall cause each of its Restricted Subsidiaries to:
7.1 Financial Statements.
(a) Furnish to each Facilities Administrative Agent on behalf of each Lender:
(i) as soon as available, but in any event within 90 days after the end of each fiscal year of the Borrower, a copy of the audited consolidated balance sheet of the Borrower and its consolidated Subsidiaries as at the end of such year and the related audited consolidated statements of income and of cash flows for such year, setting forth in each case in comparative form the figures for the previous year, reported on without any material qualification or exception including a “going concern” or like qualification or exception, or qualification arising out of the scope of the audit (except to the extent solely due to the scheduled occurrence of a maturity date within one year from the date of such audit or the potential inability to satisfy the financial covenant set forth in Section 8.1), by Deloitte & Touche LLP or other independent certified public accountants of nationally recognized standing; and
(ii) as soon as available, but in any event not later than 45 days after the end of each of the first three quarterly periods of each fiscal year of the Borrower (or, in the case of the first fiscal quarter ending after the Closing Date, 60 days after the end of such fiscal quarter), the unaudited consolidated balance sheet of the Borrower and its consolidated Subsidiaries as at the end of such quarter and the related unaudited consolidated statements of income and of cash flows for such quarter and the portion of the fiscal year through the end of such quarter, setting forth in each case in comparative form the figures for the previous year, certified by a Responsible Officer as being fairly stated in all material respects (subject to normal year-end audit adjustments and the absence of footnotes).
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(b) All such financial statements shall be complete and correct in all material respects and shall be prepared in reasonable detail and in accordance with GAAP applied consistently throughout the periods reflected therein and with prior periods (except as approved by such accountants or officer, as the case may be, and disclosed therein).
(c) Notwithstanding the foregoing such financial statements may be delivered in the form and with the accompanying certifications required by applicable Requirements of Law for filing Forms 10-K and Forms 10-Q with the SEC.
Documents required to be delivered pursuant to Section 7.1 (to the extent any such documents are included in materials otherwise filed with the SEC) shall be deemed to have been delivered on the date on which such report or other information is posted on the SEC’s website at www.sec.gov, and such posting shall be deemed to satisfy the reporting and delivery requirements of such Section.
7.2 Certificates; Other Information. Furnish to each Facilities Administrative Agent on behalf of each Lender (or, in the case of clause (g), to the relevant Lender):
(a) concurrently with the delivery of any financial statements pursuant to Section 7.1, (i) a certificate of a Responsible Officer stating that such Responsible Officer has obtained no knowledge of any Default or Event of Default, in each case except as specified in such certificate and (ii)(x) a Compliance Certificate containing all information and calculations reasonably necessary for determining compliance by each Group Member with the provisions of this Agreement referred to therein as of the last day of the fiscal quarter or fiscal year of the Borrower, as the case may be, and, if applicable, for determining the Commitment Fee Rate and Excess Cash Flow, and (y) to the extent not previously disclosed to the Facilities Administrative Agents, a description of any change in the jurisdiction of organization of any Loan Party and, concurrently with the delivery of any financial statements pursuant to Section 7.1(a)(i) only, a listing of any registered or applied-for material Intellectual Property in the United States acquired by any Loan Party since the date of the most recent list delivered pursuant to this clause (y) (or, in the case of the first such list so delivered pursuant to Section 7.13);
(b) as soon as available, and in any event no later than 90 days after the end of each fiscal year of the Borrower, a detailed consolidated budget for the following fiscal year (including a projected consolidated balance sheet of the Borrower and its Subsidiaries as of the end of the following fiscal year, the related consolidated statements of projected cash flow, projected changes in financial position and projected income and a description of the underlying assumptions applicable thereto) (collectively, the “Projections”);
(c) if the Borrower is not then a reporting company under the Exchange Act within 45 days after the end of each fiscal quarter of the Borrower (90 days, in the case of the fourth fiscal quarter of any fiscal year, and 60 days, in the case of the first fiscal quarter ending after the Closing Date), a narrative discussion and analysis of the financial condition and results of operations of the Borrower and its Subsidiaries for such fiscal quarter and for the period from the beginning of the then current fiscal year to the end of such fiscal quarter, as compared to the portion of the Projections covering such periods and to the comparable periods of the previous year;
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(d) [reserved];
(e) within five Business Days after the same are sent, copies of all financial statements and reports that the Borrower sends to the holders of any class of its debt securities or public equity securities and, within five Business Days after the same are filed, copies of all financial statements and reports that the Borrower may make to, or file with, the SEC;
(f) concurrently with the delivery of any document or notice required to be delivered pursuant to Section 7.1 or 7.2, Borrower shall indicate in writing whether such document or notice contains Non-public Information. Borrower and each Lender acknowledge that certain of the Lenders may be “public-side” Lenders (Lenders that do not wish to receive material non-public information with respect to any Group Member or their securities) and, if documents or notices required to be delivered pursuant to Section 7.1 or 7.2 or otherwise are being distributed through IntraLinks/IntraAgency, SyndTrak or another relevant website or other information platform (the “Platform”), any document or notice that Borrower has indicated contains Non-public Information shall not be posted on that portion of the Platform designated for such public-side Lenders. If Borrower has not indicated whether a document or notice delivered pursuant to Section 7.1 or 7.2 contains Non-public Information, each Applicable Administrative Agent reserves the right to post such document or notice solely on that portion of the Platform designated for Lenders who wish to receive material nonpublic information with respect to the Group Members and their securities. Notwithstanding anything herein to the contrary, in no event shall the Borrower request that the Facilities Administrative Agents make available to “public-side” Lenders budgets or any certificates, reports or calculations with respect to the Borrower’s compliance with the covenants contained herein; and
(g) promptly, such additional financial and other information (including, without limitation, information regarding any Single Employer Plan or Multiemployer Plan and any reports or other information required to be filed under ERISA) as the Facilities Administrative Agents or any Lender may from time to time reasonably request (including any information that any Lender reasonably requests in order to comply with its obligations under any “know-your-customer” or anti-money laundering laws or regulations, including Patriot Act and the Beneficial Ownership Regulation).
Documents required to be delivered pursuant to Section 7.2 (to the extent any such documents are included in materials otherwise filed with the SEC) shall be deemed to have been delivered on the date on which such report or other information is posted on the SEC’s website at www.sec.gov, and such posting shall be deemed to satisfy the reporting and delivery requirements of such Section.
7.3 Payment of Obligations; Payment of Taxes. (a) Pay, discharge or otherwise satisfy at or before maturity or before they become delinquent, as the case may be, all its obligations of whatever nature, except where the amount or validity thereof is currently being contested in good faith by appropriate proceedings and reserves in conformity with GAAP with respect thereto have been provided on the books of the relevant Group Member or where failure to pay, discharge or otherwise satisfy such material obligations, in the aggregate, has not had and would not reasonably be expected to result in a Material Adverse Effect; and
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(b) pay all material Taxes imposed upon it or any of its properties or assets or in respect of any of its income, businesses or franchises when due and payable, and all claims (including claims for labor, services, materials and supplies) for sums that have become due and payable and that by law have or may become a Lien upon any of its properties or assets; provided, no such Tax need be paid if it is being contested in good faith by appropriate proceedings promptly instituted and diligently conducted, so long as (a) adequate reserve or other appropriate provision, as shall be required in conformity with GAAP, shall have been made therefore and for any accrued interest and potential penalties or other costs relating thereto, (b) in the case of a Tax or claim which has or may become a Lien against any of the Collateral, such contest proceedings conclusively operate to stay the sale of any material portion of the Collateral to satisfy such Tax or claim and (c) any Tax or claim determined to be due, together with any interest or penalties thereon is promptly paid after final resolution of such contest.
7.4 Maintenance of Existence; Compliance. (a) (i) Preserve, renew and keep in full force and effect its organizational existence and (ii) take all reasonable action to maintain all rights, privileges and franchises necessary to conduct its business, except, in each case, as otherwise permitted by Section 8.4 and except to the extent that failure to do so would not reasonably be expected to have a Material Adverse Effect; and (b) comply with all Contractual Obligations and Requirements of Law except to the extent that failure to comply therewith would not, in the aggregate, reasonably be expected to have a Material Adverse Effect. The Borrower will maintain in effect and enforce policies and procedures reasonably designed to promote compliance by the Borrower, its Subsidiaries and their respective directors, officers and employees with Anti-Corruption Laws and applicable Sanctions.
7.5 Maintenance of Property; Insurance. (a) Keep all property useful and necessary in its business in good working order and condition, ordinary wear and tear excepted, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect and (b) maintain with reputable insurance companies insurance on all its property in at least such amounts and against such risks (but including in any event public liability) as are usually insured against in the same general area by companies engaged in the same or a similar business.
7.6 Inspection of Property; Books and Records; Discussions. (a) Keep proper books of records and account in which full, true and correct entries in conformity with GAAP and all Requirements of Law shall be made of all dealings and transactions in relation to its business and activities and (b) permit, upon reasonable prior notice, any persons designated by the Administrative Agent, or upon the occurrence and during the continuance of an Event of Default, any Lender, to visit and inspect any of its properties and examine and make abstracts from any of its books and records at such reasonable times and upon reasonable intervals and to discuss the business, operations, properties and financial and other condition of the Group Members with officers of the Group Members and with their independent certified public accountants at such reasonable times and upon reasonable intervals, in each case as any Facilities Administrative Agent or, upon the occurrence of and during the continuance of an Event of Default, any Lender may reasonably request; provided, that, unless an Event of Default has occurred and is continuing, such visitation and inspection rights may only be exercised by the Administrative Agent once per calendar year. Notwithstanding anything to the contrary in this Section 7.6, none of the Group Members will be required to disclose, permit the inspection, examination or making copies or abstracts of, or discussion of, any document, information or other matter that is subject to attorney-client or similar privilege or constitutes attorney work product; provided that such Group Member shall have notified the Administrative Agent that such document, information or other matter is being withheld on the basis of the foregoing.
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7.7 Notices. Promptly (but in any event within any time period that may be specified below) upon any Responsible Officer of any Group Member acquiring knowledge thereof, give notice to each Facilities Administrative Agent and each Lender of the following:
(a) the occurrence of any Default or Event of Default;
(b) any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified therein;
(c) any litigation or proceeding affecting any Group Member (i) which is reasonably expected to be determined adversely and, if so determined, would have or would reasonably be expected to have a Material Adverse Effect, (ii) in which injunctive or other temporary or specific relief is sought which, if granted, would reasonably be expected to have a Material Adverse Effect or (iii) which relates to any Loan Document;
(d) the following events, as soon as possible and in any event within 30 days after a Responsible Officer of the Borrower knows or has reason to know thereof: (i) the occurrence of any Reportable Event with respect to any Single Employer Plan, the incurrence of a failure to satisfy the minimum funding standard (as defined in Sections 412 and 430 of the Code and Sections 302 and 303 of ERISA) (whether or not waived) with respect to a Single Employer Plan, the creation of any Lien in favor of the PBGC or a Single Employer Plan or any withdrawal from, or the termination or Insolvency of, any Multiemployer Plan or (ii) the institution of proceedings or the taking of any other action by the PBGC or the Borrower or any Commonly Controlled Entity or any Multiemployer Plan with respect to the withdrawal from, or the termination or Insolvency of, any Plan; and
(e) any other development or event that has had or would reasonably be expected to have a Material Adverse Effect.
Each notice pursuant to this Section 7.7 shall be accompanied by a statement of a Responsible Officer setting forth details of the occurrence referred to therein and stating what action, if any, the relevant Group Member has taken or proposes to take with respect thereto.
7.8 Environmental Laws. (a) Comply in all material respects and conduct the Business in compliance with, and make all commercially reasonable efforts to ensure compliance in all material respects by all tenants and subtenants, if any, with, all Environmental Laws, and obtain and comply in all material respects with and maintain, and make all commercially reasonable efforts to ensure that all tenants and subtenants, if any, obtain and comply in all material respects with and maintain, any and all Environmental Permits required pursuant to Environmental Law for the conduct of the Business or their respective operations, in each case except for any such non-compliance or failure to obtain that, individually or in the aggregate, would not be expected to result in a Material Adverse Effect.
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(b) (b) Except as would not be expected to result in a Material Adverse Effect, (i) unless being contested in good faith, conduct and complete in all material respects all investigations, studies, sampling and testing, and all remedial, removal and other actions required in writing by a Governmental Authority under Environmental Laws and (ii) promptly comply, to the extent practicable, in all material respects with all other lawful orders and directives of all Governmental Authorities regarding Environmental Laws unless the order or directive in being contested in good faith; provided, that compliance within deadlines set by such orders or authorities shall be deemed to be prompt.
7.9 Additional Collateral, etc. (a) With respect to any property (other than fee-owned property) constituting Collateral acquired after the Closing Date by the Borrower or any Subsidiary Guarantor as to which the Administrative Agent, for the benefit of the Secured Parties, does not have a perfected Lien (except as expressly set forth in the applicable Security Document), within 30 days of such acquisition (or within such longer period of time as reasonably consented to by the Administrative Agent) (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement or such other documents as the Administrative Agent reasonably deems necessary or advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a security interest in such property and (ii) take all actions reasonably necessary or advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a (except as expressly set forth in the applicable Security Document) perfected security interest in such property, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be reasonably requested by the Administrative Agent.
(b)
Subject to the last sentence of this
Section 7.9(b), with respect to any fee simple
interest in any real property having, in the reasonable opinion of the Borrower, a fair market value of at least $10,000,000 acquired after the Closing Date by the Borrower or any Subsidiary Guarantor within ninety (90) days of such acquisition (or within such longer period of time as
reasonably consented to by the Administrative Agent)
(A) execute, acknowledge and deliver a Mortgage
in favor of the Administrative Agent, for the benefit of the Secured Parties, in an amount no greater than 125% of the purchase price thereof if the property is located in a state with mortgage recording tax covering such real property,
(B) if requested by the Administrative Agent,
provide the Secured Parties with (1) title and
extended coverage insurance covering such real property in an amount at least equal to the purchase price of such real property (and endorsements thereto) together with a current ALTA survey thereof, together with a surveyor’s certificate, provided that, if the Borrower is able to obtain a
“no change” affidavit acceptable to the title company and does deliver such
certificate to the title company to enable it to issue a title policy (x) removing all exceptions which would otherwise have been raised by the title company as a result of the absence of a current survey for such real property and
(y) including all endorsements that would
otherwise have been included had a current survey been obtained, then a current survey shall not be required; and (2) use commercially reasonable efforts to obtain any consents or estoppels reasonably deemed necessary or advisable by the Administrative Agent in connection with such
Mortgage, each of the foregoing in form and substance reasonably satisfactory to the Administrative Agent, (C) a flood hazard certificate, certified to the Administrative Agent, specifying whether such real property is located in a special flood hazard zone and if so, evidence
of flood insurance as required by any Requirement of Law
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and
(D) if reasonably requested by the
Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding
the foregoing, the Administrative Agent shall not enter into any Mortgage in respect of any real property acquired by any Loan Party after the Closing Date unless and until (a) if such Mortgaged Property relates to a property not located in a
flood zone, the date that is five (5) Business
Days or (b) if such Mortgaged Property relates
to a property located in a flood zone, the date that is fourteen (14) days, after the Administrative Agent has delivered to the Lenders the following documents in respect of such real property: (i) a completed flood hazard determination from a third party vendor;
(ii) if such real property is located in a
“special flood hazard area”, (A) a notification to the applicable Loan Parties of that fact and
(if applicable) notification to the applicable Loan Parties that flood insurance coverage is not available and (B) evidence of the receipt by the applicable Loan Parties of such notice; and
(iii) if required by Flood Insurance Laws,
evidence of required flood insurance.
(b) [Reserved].
(c) With respect to any new Restricted Subsidiary that is not an Excluded Subsidiary (or such other Restricted Subsidiary designated by the Borrower as a Subsidiary Guarantor) created or acquired after the Closing Date by any Group Member (which, for the purposes of this Section 7.9(c), shall include any existing Restricted Subsidiary that ceases to be a Foreign Subsidiary or an Excluded Subsidiary), promptly (or within such period of time as reasonably consented to by the Administrative Agent) (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent reasonably deems necessary or advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected security interest in the Capital Stock of such new Restricted Subsidiary (to the extent constituting Collateral) that is owned by any Loan Party, (ii) to the extent constituting Collateral, deliver to the Administrative Agent the certificates, if any, representing such Capital Stock, together with undated stock powers or equivalents, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, (iii) cause such new Restricted Subsidiary (A) to become a party to the Guarantee and Collateral Agreement, (B) to take such actions reasonably necessary or reasonably advisable to grant to the Administrative Agent for the benefit of the Secured Parties a (to the extent provided in the Guarantee and Collateral Agreement) perfected security interest in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Restricted Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be reasonably requested by the Administrative Agent and (C) to deliver to each Facilities Administrative Agent a certificate of such Restricted Subsidiary, substantially in the form of Exhibit C, with appropriate insertions and attachments, and (iv) if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent.
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(d) With respect to (i) any new Foreign Subsidiary created or acquired after the Closing Date by any Group Member (other than by any Group Member that is a Foreign Subsidiary) that is a Material Foreign Subsidiary or a direct or indirect parent of any Material Subsidiaries or (ii) any Foreign Subsidiary owned by any Group Member (other than by any Group Member that is a Foreign Subsidiary) that (x) becomes a Material Foreign Subsidiary or (y) is a direct or indirect parent of any Subsidiary that becomes a Material Foreign Subsidiary, promptly (or within such period of time as reasonably consented to by the Administrative Agent) (A) execute and deliver to the Administrative Agent such amendments or supplements to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a (except as expressly set forth in the Guarantee and Collateral Agreement) perfected security interest in the Capital Stock of such new Foreign Subsidiary (to the extent constituting Collateral) that is owned by any such Group Member, (B) deliver to the Administrative Agent the certificates, if any, representing such Capital Stock, together with undated stock powers or equivalents, in blank, executed and delivered by a duly authorized officer of the relevant Group Member, as the case may be, and take such other action as may be reasonably necessary or, in the reasonable opinion of the Administrative Agent, desirable to perfect the Administrative Agent’s security interest therein, and (C) if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent.
(e) If the aggregate amount of Consolidated Total Assets as of the end of the most recently ended fiscal period for which financial statements have been delivered pursuant to Section 7.1 attributable to all Restricted Subsidiaries that are not Material Subsidiaries exceeds ten percent (10.0%) of Consolidated Total Assets of the Borrower and its Restricted Subsidiaries as of the end of such period, the Borrower (or, in the event the Borrower has failed to do so within sixty (60) days of delivery of such financial statements, the Administrative Agent) shall designate sufficient Domestic Subsidiaries as “Material Domestic Subsidiaries” or sufficient Foreign Subsidiaries as “Material Foreign Subsidiaries” to eliminate such excess, and such designated Restricted Subsidiaries shall for all purposes of this Agreement constitute Material Domestic Subsidiaries or Material Foreign Subsidiaries, respectively.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, it is understood and agreed that:
(i) no Loan Party shall be required to seek any landlord waiver, bailee letter, estoppel, warehouseman waiver or other collateral access, lien waiver or similar letter or agreement;
(ii) no Loan Party shall be required to perfect a security interest in any asset to the extent perfection of a security interest in such asset would be prohibited under any applicable Law;
(iii) the Administrative Agent shall not require the taking of a Lien on, or require the perfection of any Lien granted in, those assets as to which the cost of obtaining or perfecting such Lien (including any Taxes or expenses payable relating to such Lien) is excessive in relation to the benefit to the Lenders of the security afforded thereby as reasonably determined by the Borrower and the Administrative Agent;
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(iv) no actions in any non-U.S. jurisdiction or required by the laws of any non-U.S. jurisdiction shall be required in order to create any security interests in any assets or to perfect or make enforceable such security interests (including any Intellectual Property registered in any non-U.S. jurisdiction or the Capital Stock of Foreign Subsidiaries) (it being understood that there shall be no security agreements or pledge agreements governed under the laws of any non-U.S. jurisdiction or any requirement to make any filings in any foreign jurisdiction including with respect to foreign Intellectual Property or the Capital Stock of Foreign Subsidiaries); and
(v) no actions shall be required with respect to assets requiring perfection through control agreements
or perfection by “control” (as defined in the UCC) (other than in respect of Indebtedness for borrowed money (other than intercompany Indebtedness) owing to the Loan Parties evidenced by a note in excess of $10,000,00025,000,000
, Indebtedness of any non-Loan Party that is owing to any Loan Party in excess of
$10,000,00025,000,000
(which shall be evidenced by an intercompany note and pledged to the Administrative Agent)) and certificated Capital Stock of Wholly Owned Restricted Subsidiaries that are Material Subsidiaries otherwise required to be pledged
pursuant to the Guarantee and Collateral Agreement to the extent otherwise required by Section 7.9(a). Notwithstanding the foregoing, in each case subject to the terms and conditions set forth in (and to the extent required by) the Guarantee
and Collateral Agreement, in the case of any Collateral consisting of uncertificated securities in excess of $10,000,00025,000,000, the applicable Loan Party shall have caused the issuer thereof to
either (x) register the Administrative Agent as the owners of such uncertificated securities or (y) promptly agree in writing that such issuer will comply with instructions issued or originated by the Administrative Agent without further
consent of such Loan Party.
7.10 Use of Proceeds. Use the proceeds of the Loans only for the purposes specified in Section 5.16.
7.11 Further Assurances. From time to time execute and deliver, or cause to be executed and delivered, such additional instruments, certificates or documents, and take all such actions, as any Facilities Administrative Agent may reasonably request for the purposes of implementing or effectuating the provisions of this Agreement and the other Loan Documents, or of perfecting or renewing the rights of the Facilities Administrative Agents and the Lenders with respect to the Collateral (or with respect to any additions thereto or replacements or proceeds thereof or with respect to any other property or assets hereafter acquired by the borrower or any Restricted Subsidiary which may be deemed to be part of the Collateral) pursuant hereto or thereto. Upon the exercise by any Facilities Administrative Agent or any Lender of any power, right, privilege or remedy pursuant to this Agreement or the other Loan Documents which requires any consent, approval, recording, qualification or authorization of any Governmental Authority, the Borrower will, if reasonably requested by such Facilities Administrative Agent, use commercially reasonable efforts to execute and deliver, or to cause the execution and delivery of, all applications, certifications, instruments and other documents and papers that such Facilities Administrative Agent or such Lenders may be required to obtain from the Borrower or any of its Restricted Subsidiaries for such governmental consent, approval, recording, qualification or authorization.
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7.12 Ratings. The Borrower will use commercially reasonable efforts to obtain and maintain (but not maintain any specific rating) a public corporate family and/or corporate credit rating, as applicable, and public ratings in respect of the Term Loans provided pursuant to this Agreement, in each case, from at least two of S&P, Moody’s and Fitch.
7.13 Post-Closing Items. The Borrower will deliver the items described on Schedule 7.13 within the period or by the date specified therein or, within such longer period of time or by such later date as reasonably consented to by the Administrative Agent.
SECTION 8. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments remain in effect, any Letter of Credit remains outstanding (other than Letters of Credit which have been Cash Collateralized or as to which other arrangements satisfactory to the applicable Issuing Lender shall have been made) or any Loan or other amount (other than contingent surviving indemnity obligations in respect of which no claim or demand has been made) is owing to any Lender or any Facilities Administrative Agent hereunder, the Borrower shall not and shall not permit any of its Restricted Subsidiaries to, directly or indirectly:
8.1 Financial Condition Covenant. Permit the Consolidated Senior Secured Net Leverage Ratio, as of the last day of any fiscal quarter
(commencing with the fiscal quarter ending March 31,
20202026) to exceed 4.25:1.00; provided that the covenant contained in this Section 8.1 shall not apply unless on such last day, the Total Revolving Extensions of Credit
(including any L/C Obligations which are not Cash Collateralized) exceed
$210,00,00035% of the aggregate principal amount of Revolving Commitments then in effect (a “Covenant Triggering Event”)).
8.2 Indebtedness. Create, issue, assume, become liable in respect of or otherwise Incur, or suffer to exist, any Indebtedness, except:
(a) Indebtedness of any Loan Party pursuant to any Loan Document;
(b) Indebtedness (i) of the Borrower to any Restricted Subsidiary, (ii) of any Subsidiary Guarantor to the Borrower or any Restricted Subsidiary, (iii) of any Restricted Subsidiary that is not a Subsidiary Guarantor to any other Restricted Subsidiary that is not a Subsidiary Guarantor, and (iv) to the extent permitted pursuant to Section 8.7, of any Restricted Subsidiary that is not a Subsidiary Guarantor to the Borrower or any Subsidiary Guarantor;
(c) Guarantee Obligations Incurred in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries of obligations of the Borrower, any Subsidiary Guarantor and, to the extent permitted pursuant to Section 8.7, of any Restricted Subsidiary that is not a Subsidiary Guarantor; and Guarantee Obligations Incurred by any Restricted Subsidiary that is not a Subsidiary Guarantor of obligations of any other Restricted Subsidiary that is not a Subsidiary Guarantor;
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(d) Indebtedness of the Borrower and its Restricted Subsidiaries outstanding on the Closing Date and listed on Schedule 8.2(d) and any Permitted Refinancing thereof;
(e) Indebtedness (including Capital Lease Obligations) secured
by Liens permitted by Section 8.3(g) in an aggregate principal amount not to exceed, immediately after giving effect to the issuance or Incurrence of such Indebtedness and taken together with all such Indebtedness Incurred and then outstanding
under this Section 8.2(e), the greater of (i) $150,000,000400,000,000 and (ii) 10% of Consolidated Total Assets as of the last day of the most recently ended fiscal quarter for which
financial statements have been delivered pursuant to Section 7.1 and any Permitted Refinancing of such Indebtedness;
(f) Hedge Agreements permitted under Section 8.11;
(g) Indebtedness of Foreign Subsidiaries, and guarantees thereof by Foreign
Subsidiaries, in an aggregate principal amount not to exceed at any time the greater of (i)
$100,000,000200,000,000
and (ii) 5% of Consolidated Total Assets as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 7.1;
(h) unsecured Indebtedness of the Borrower in respect of Management Advances in an aggregate principal amount not to exceed $10,000,000 Incurred in any fiscal year;
(i) guarantees of Indebtedness of directors, officers and employees of Borrower or any of its Restricted
Subsidiaries in respect of expenses of such Persons in connection with relocations and other ordinary course of business purposes, if the aggregate amount of Indebtedness so guaranteed, when added to the aggregate amount of unreimbursed payments
theretofore made in respect of such guarantees and the amount of Investments then outstanding under Section 8.7(f), shall not at any time exceed
$10,000,00020,000,000
;
(j) (i) Indebtedness of a Restricted Subsidiary of the Borrower acquired in a Permitted Acquisition and outstanding at the time of such Permitted Acquisition, (ii) Indebtedness assumed at the time of a Permitted Acquisition of an asset securing such Indebtedness so long as, in the case of each of clauses (i) and (ii), (x) such Indebtedness was not Incurred in connection with, or in anticipation or contemplation of, such Permitted Acquisition and (y) the aggregate principal amount of such Indebtedness does not at any time exceed $50,000,000, and (iii) any Permitted Refinancing of such Indebtedness under clause (i) or (ii);
(k) guarantees of Indebtedness of a Person which is not a Restricted
Subsidiary of the Borrower and in which the Borrower or a Restricted Subsidiary made an investment permitted by Section 8.7(m) or preferred Capital Stock of a Foreign Subsidiary which such Foreign Subsidiary is obligated to purchase, redeem,
retire or otherwise acquire, if the aggregate outstanding principal amount so guaranteed and the aggregate outstanding redemption value of such Capital Stock, when added to (i) unreimbursed payments theretofore made in respect of such guarantees and (ii) Investments then outstanding under Section 8.7(m),
does not at any time exceed
$10,000,00025,000,000
;
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(l) [reserved];
(m) Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety, statutory, appeal or similar obligations (including in connection with workers’ compensation), or obligations in respect of letters of credit, bank guarantees or similar instruments related thereto, in each case Incurred in the ordinary course of business;
(n) Indebtedness in respect of Specified Cash Management Obligations, netting services, overdraft protections and otherwise in connection with deposit accounts;
(o) Indebtedness arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from guaranties, surety bonds or performance bonds securing the performance of the Borrower or any of its Restricted Subsidiaries pursuant to such agreements, in connection with permitted Investments or permitted Dispositions;
(p) Indebtedness consisting of promissory notes issued to present or former officers, directors or employees of any Group Member upon the death, disability, retirement or termination of employment or service of such officer, director or employee or otherwise to finance the purchase or redemption of Capital Stock of Borrower, to the extent the applicable Restricted Payment is permitted by Section 8.6;
(q) Indebtedness representing insurance premiums owing in the ordinary course of business;
(r) unsecured Indebtedness of any Borrower or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 100% of the amount of Net Cash Proceeds received by the Borrower from capital contributions or the issuance or sale of Capital Stock (other than Disqualified Capital Stock) to the extent such Net Cash Proceeds have not been otherwise applied to build the Available Amount or any other basket for the incurrence of Indebtedness or the making of any Investment or Restricted Payment and (ii) any Permitted Refinancing Indebtedness thereof;
(s) (i) Indebtedness of the Borrower or any Subsidiary Guarantor Incurred in connection with a Permitted Acquisition; provided that (A) (x) in the case of Indebtedness secured by a Lien on the Collateral that is pari passu with, or junior to, Liens securing the Secured Obligations, the Consolidated Senior Secured Net Leverage Ratio after giving effect to the Incurrence thereof (subject to Section 1.3) is less than or equal to 3.50:1.00, and (y) in the case of any unsecured Indebtedness, the Consolidated Net Leverage Ratio is less than or equal to 3.75:1.00, in each case assuming for the purposes of this Section 8.2(s) that any revolving commitments being incurred pursuant to this Section 8.2(s) at the time of such calculation are fully drawn), (B) such Indebtedness is not scheduled to mature prior to (x) in the case of such Indebtedness secured on a pari passu basis, the Latest Maturity Date and (y) in the case of such Indebtedness secured on a junior basis or unsecured, the date that is 91 days after the Latest Maturity Date (provided that, this clause (B) shall not apply to any bridge loans permitted under this Section 8.2(s) prior to its conversion), (C) such Indebtedness is not guaranteed by any Restricted Subsidiaries other than the Subsidiary Guarantors, (D) if such Indebtedness is secured,
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the obligations in respect thereof shall not be secured by any property or assets of the Borrower or any Restricted Subsidiary other than the Collateral and the security agreements relating to such Indebtedness are substantially the same as the Security Documents (with such differences as are reasonably satisfactory to the Administrative Agent), (E) if such Indebtedness is secured on a pari passu basis, such Indebtedness must be in the form of senior secured notes, and (F) if such Indebtedness is secured, a Senior Representative validly acting on behalf of the holders of such Indebtedness shall have become party to, if secured on a pari passu basis, a Pari Debt Intercreditor Agreement and, as applicable, the Intercreditor Agreement and, if secured on a junior basis, an Intercreditor Agreement or if such agreement has been previously entered into in connection with any other permitted Indebtedness, execute a joinder to such then existing agreement in substantially the form provided therein, and (ii) any Permitted Refinancing thereof;
(t) Indebtedness in respect of bid, workers’ compensation claims, self-insurance obligations, bankers’ acceptances, performance or surety, appeal or similar bonds issued for the account of and completion guarantees and other similar obligations provided by any Group Member in each case in the ordinary course of business and consistent with past practices, including guarantees or obligations with respect to letters of credit supporting such bid bonds, performance bonds, surety bonds and similar obligations;
(u) Indebtedness representing deferred compensation to employees of the Borrower and its Restricted Subsidiaries permitted by the terms of this Agreement and Incurred in the ordinary course of business;
(v) Permitted Pari Passu Refinancing Debt, Permitted Junior Refinancing Debt, Permitted Unsecured Refinancing Indebtedness and any Permitted Refinancing thereof;
(w) (i) Indebtedness of the Borrower or any Subsidiary Guarantor in respect of one or more series of notes or loans that are either senior or subordinated and unsecured or secured by Liens on the Collateral ranking junior to or pari passu with the Liens securing the Obligations (or any bridge loans to the extent that the long-term indebtedness into which such bridge loans convert into otherwise satisfies the requirements of this Section 8.2(w)) that are issued or made in lieu of Incremental Loans (any such Indebtedness, “Incremental Equivalent Debt”); provided that (A) such Indebtedness is not scheduled to mature prior to (x) in the case of such Indebtedness secured on a pari passu basis, the Latest Maturity Date and (y) in the case of such Indebtedness secured on a junior basis or unsecured, the date that is 91 days after the Latest Maturity Date (provided that, this clause (A) shall not apply to any bridge loans permitted under this Section 8.2(w) prior to its conversion), (B) the aggregate principal amount of all such Indebtedness Incurred pursuant to this Section 8.2(w) shall not exceed the Incremental Amount, (C) such Indebtedness is not guaranteed by any Restricted Subsidiaries other than the Subsidiary Guarantors, (D) in the case of such Indebtedness that is secured, the obligations in respect thereof shall not be secured by any property or assets of the Borrower or any Restricted Subsidiary other than the Collateral and the security agreements relating to such Indebtedness are substantially the same as the Security Documents (with such differences as are reasonably satisfactory to the Administrative Agent), (E) such unsecured or senior Incremental Equivalent Debt shall not provide for any scheduled prepayments of principal prior to the final maturity date of such debt, (F) if such Indebtedness is secured on a pari passu basis, such Indebtedness must be in the form of senior
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secured notes and (G) if such Indebtedness is secured, a Senior Representative validly acting on behalf of the holders of such Indebtedness shall have become party to, if secured on a pari passu basis, a Pari Debt Intercreditor Agreement and, if secured on a junior basis, an Intercreditor Agreement or if such agreement has been previously entered into in connection with any other permitted Indebtedness, execute a joinder to such then existing agreement in substantially the form provided therein, and (ii) any Permitted Refinancing thereof;
(x) unsecured Indebtedness of the Borrower or any Subsidiary Guarantor so long as (i) such Indebtedness (A) matures no earlier than the date that is 91 days after the Latest Maturity Date (provided that, this clause (A) shall not apply to any bridge loans to the extent that the long-term indebtedness into which such bridge loans convert into otherwise satisfies the requirements of this clause (A)) and (B) does not require any mandatory prepayments, redemptions, sinking fund payments or purchase offers prior to maturity, except in case of certain customary asset sales or changes of control (provided that, this clause (B) shall not apply with respect to any mandatory prepayments of bridge loans permitted under this Section 8.2(x) with the proceeds of other unsecured Indebtedness, including senior unsecured notes) and (ii) subject to Section 1.3, on the date of the Incurrence of such Indebtedness, and any Permitted Refinancing in respect thereof, as the case may be, after giving effect to the Incurrence thereof, the Consolidated Coverage Ratio would be greater than 2.00:1.00;
(y) Indebtedness for employer contributions to the ESOP not in excess of limitations set forth in Section 404 of the Code and Indebtedness arising under Borrower’s stock repurchase liability under the ESOP; and
(z) so long as no Event of Default has occurred and is continuing or would result therefrom, additional Indebtedness of the Group
Members in an aggregate principal amount not to exceed at any one time outstanding the greater of (i) $100,000,000600,000,000 and (ii) 515
% of Consolidated Total Assets as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 7.1.
The principal amount of any non-interest bearing Indebtedness or other discount security constituting Indebtedness at any date shall be the principal amount thereof that would be shown on a balance sheet of the Borrower dated such date prepared in accordance with GAAP.
8.3 Liens. Create, become subject to, assume or otherwise incur, or suffer to exist, any Lien upon any of its property, whether now owned or hereafter acquired, except for:
(a) Liens for taxes, assessments or government charges not yet due or that are being contested in good faith by appropriate proceedings and for which the relevant Group Member has set aside reserves with respect on its books in conformity with GAAP;
(b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business that are not overdue for a period of more than 60 days or that are being contested in good faith by appropriate proceedings;
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(c) pledges or deposits in connection with workers’ compensation, unemployment insurance, old age pensions, or other social security or retirement benefits or similar legislation;
(d) (i) deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business or (ii) arising by virtue of deposits made in the ordinary course of business to secure liability for premiums to insurance carriers;
(e) easements, rights-of-way, restrictions (including zoning restrictions) and other similar encumbrances and minor title defects or matters that would be disclosed in an accurate survey affecting real property incurred in the ordinary course of business that, in the aggregate, do not in any case materially interfere with the ordinary conduct of the business of any Group Member or materially detract from the value of the real property subject thereto;
(f) Liens created pursuant to the Loan Documents;
(g) Liens securing Indebtedness permitted by Section 8.2(e) if (i) such Liens are created substantially simultaneously with the Incurrence of such Indebtedness (for the acquisition of certain property) or within 270 days thereafter and (ii) such Liens do not at any time encumber any property other than the property financed by such Indebtedness (except for additions and accessions to such assets, replacements and products thereof and customary deposits); provided, that individual financings of equipment provided by one lender may be cross-collateralized to other financings of equipment provided by such lender;
(h) any interest or title of a lessor under any lease entered into by a Group Member in the ordinary course of its business and covering only the assets so leased and other statutory and common law landlords’ liens under leases;
(i) Liens in existence on the Closing Date listed on Schedule 8.3(i) and modifications, replacements, renewals or extensions thereof; provided, that no such Lien is spread to cover any additional property after the Closing Date and the amount of the aggregate obligations, if any, secured by any such Lien are not increased;
(j) attachment and judgment Liens, to the extent and for so long as the underlying judgments and decrees do not constitute an Event of Default pursuant to Section 9;
(k) Liens on property or assets acquired pursuant to a Permitted Acquisition, or on property or assets of a Restricted Subsidiary in existence at the time such Restricted Subsidiary is acquired pursuant to a Permitted Acquisition, if (i) any Indebtedness secured by such Liens is permitted by Section 8.2(j), and (ii) such Liens are not incurred in connection with, or in contemplation or anticipation of, such Permitted Acquisition and do not attach to any other asset of any Group Member; and Liens on such property or assets securing refinancings, renewals and extensions of such Indebtedness permitted under Section 8.2(j);
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(l) Liens on assets of Foreign Subsidiaries securing Indebtedness permitted pursuant to Section 8.2(g);
(m) Liens on property subject to sale-leaseback transactions;
(n) licenses, sublicenses, leases or subleases granted to other Persons in the ordinary course of business that do not, individually or in the aggregate, materially interfere with the conduct of the business of the Borrower or any of its Restricted Subsidiaries taken as a whole;
(o) (i) any encumbrances or restrictions with respect to the Capital Stock of any Unrestricted Subsidiary, (ii) consisting of customary rights of first refusal and tag, drag and similar rights in joint venture agreements and agreements with respect to non-Wholly Owned Subsidiaries and (iii) any encumbrance or restriction (including put and call arrangements) in favor of a joint venture party with respect to the Capital Stock of, or assets owned by, any joint venture or similar arrangement pursuant to any joint venture or similar agreement;
(p) [reserved];
(q) Liens securing Indebtedness permitted by Section 8.2(s);
(r) Liens (i) of a collection bank arising under Section 4-210 of the Uniform Commercial Code on items in the course of collection or (ii) in favor of a banking institution arising as a matter of law encumbering deposits (including the right of set-off) and which are within the general parameters customary in the banking industry;
(s) Liens (i) on earnest money deposits of cash or Cash Equivalents in connection with any Investments made pursuant to Section 8.7(h) or 8.7(z) or (ii) consisting of an agreement to Dispose of any property in a Disposition permitted under Section 8.5;
(t) Liens in the nature of the right of setoff in favor of counterparties to contractual agreements with the Loan Parties in the ordinary course of business;
(u) the filing of UCC financing statements solely as a precautionary measure in connection with operating leases or consignment of goods and similar arrangements;
(v) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods;
(w) Liens deemed to exist in connection with Investments in repurchase agreements permitted under Section 8.7;
(x) Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto to the extent permitted under Section 8.2(q);
(y) Liens in connection with the sale or transfer of any assets in a transaction permitted under Section 8.5, customary rights and restrictions contained in agreements relating to such sale or transfer pending the completion thereof solely relating to such assets so sold or transferred;
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(z) Liens in favor of a Loan Party on assets of a Subsidiary that is not required to be a Subsidiary Guarantor;
(aa) Liens on Collateral securing Permitted Pari Passu Refinancing Debt, Permitted Junior Refinancing Debt, secured Indebtedness Incurred pursuant to Section 8.2(v) (provided that, if secured on a pari passu basis, a Senior Representative validly acting on behalf of the holders of such Indebtedness shall have become party to a Pari Debt Intercreditor Agreement and, if applicable, the Intercreditor Agreement, and if secured on a junior basis, a Senior Representative validly acting on behalf of the holders of such Indebtedness shall have become party to an Intercreditor Agreement or if such agreement has been previously entered into in connection with any other permitted Indebtedness, execute a joinder to such then existing agreement in substantially the form provided therein) and any Permitted Refinancing thereof;
(bb) Permitted Encumbrances[reserved];
(cc) Liens solely on the proceeds of Escrow Debt and any interest thereof, securing the applicable Escrow Debt;
(dd) non-exclusive outbound licenses of patents, copyrights, trademarks and other intellectual property rights granted by any Group Member in the ordinary course of business and not interfering in any respect with the ordinary conduct of or materially detracting from the value of the business of such Group Member; and
(ee) Liens not otherwise permitted by this Section 8.3 so long as neither (i) the aggregate outstanding principal amount of the
obligations secured thereby nor (ii) the aggregate fair market value (determined as of the date such Lien is incurred) of the assets subject thereto exceeds at any one time the greater of (x) $60,000,000120,000,000
and (y) 3% of Consolidated Total Assets as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 7.1.
8.4 Fundamental Changes. Merge into, consolidate or amalgamate with any other Person, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), or Dispose of all or substantially all of its property or business or (solely with respect to the Borrower) change its jurisdiction of organization to any jurisdiction outside of the United States, except:
(a) (1) any Restricted Subsidiary of the Borrower may be merged, amalgamated, consolidated or liquidated (i) with or into the Borrower if the Borrower is the continuing or surviving corporation, (ii) with or into any Subsidiary Guarantor if the Subsidiary Guarantor is the continuing or surviving corporation or (iii) subject to Section 8.7(j), with or into any Foreign Subsidiary; and (2) any Restricted Subsidiary that is not a Loan Party may be merged, amalgamated or consolidated with or into any other Restricted Subsidiary that is not a Loan Party;
(b) any Restricted Subsidiary of the Borrower may Dispose of any or all of its assets (upon voluntary liquidation, winding up, dissolution or otherwise) as permitted by Section 8.5 (other than Section 8.5(c)), or to the Borrower or any Subsidiary Guarantor or, subject to Section 8.7(j), any Foreign Subsidiary; and any Restricted Subsidiary that is not a Loan Party may Dispose of any or all of its assets (upon voluntary liquidation or otherwise) to any other Restricted Subsidiary that is not a Loan Party;
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(c) any Restricted Subsidiary may merge into or consolidate with any Person in order to consummate a Disposition made in compliance with Section 8.5 (other than Section 8.5(c)) in which the surviving entity is not a Subsidiary;
(d) any Restricted Subsidiary may dissolve, liquidate or wind up its affairs at any time; provided that such dissolution, liquidation or winding up, as applicable, could not reasonably be expected to have a Material Adverse Effect; provided, further, that, if the other party is not a Loan Party, no Default exists after giving effect to such transaction;
(e) any merger, consolidation or amalgamation between the Borrower or a Subsidiary Guarantor, on the one hand, and any other Person, on the other hand; provided, that the Borrower or such Subsidiary Guarantor, as the case may be, is the surviving entity of any such merger, consolidation or amalgamation;
(f) any merger, consolidation or amalgamation between a Restricted Party that is not a Loan Party, on the one hand, and any other Person, on the other hand; provided, that such Restricted Subsidiary is the surviving entity of any such merger, consolidation or amalgamation; and
(g) upon consummation of the Acquisition, Ocean Sub, Inc. may merge with and into Target, with Target as the surviving entity.
8.5 Disposition of Property. Dispose of any of its property (which, for the avoidance of doubt, shall not include any stock of the Borrower), whether now owned or hereafter acquired, or, in the case of any Restricted Subsidiary, issue or sell any shares of such Restricted Subsidiary’s Capital Stock to any Person, except, subject to the Non-Loan Party Limitation Provision:
(a) the Disposition of (i) obsolete, used, surplus or worn out property in the ordinary course of business (including the abandonment or other Disposition of Intellectual Property that is in the reasonable judgment of the Borrower, no longer economically practicable to maintain or used or useful in the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole), (ii) Dispositions of property no longer used or useful in the conduct of the business of the Borrower and its Restricted Subsidiaries and (iii) cash and Cash Equivalents;
(b) the sale of inventory or the licensing, sublicensing or other disposition of Intellectual Property in the ordinary course of business;
(c) Dispositions expressly permitted by Sections 8.4(a), 8.4(b) and 8.4(e);
(d) the sale or issuance of (i) Capital Stock of any Restricted Subsidiary to the Borrower or any Subsidiary Guarantor and (ii) Capital Stock of any Subsidiary that is not a Subsidiary Guarantor to any other Subsidiary that is not a Subsidiary Guarantor;
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(e) sale-leaseback transactions;
(f) sales, transfers or dispositions by the Borrower or any of its Restricted Subsidiaries of non-strategic assets purchased as part of a Permitted Acquisition, so long as (i) no Default then exists or would result therefrom, (ii) the Borrower or such Restricted Subsidiary receives at least fair market value (as determined in good faith by the Borrower), (iii) the aggregate proceeds received by the Borrower or such Restricted Subsidiary from all such sales, transfers or dispositions relating to a given Permitted Acquisition do not exceed 40% of the aggregate consideration paid for such Permitted Acquisition and (iv) such non-strategic assets are sold, transferred or disposed of on or prior to the first anniversary of such Permitted Acquisition;
(g) Asset Swaps;
(h) Dispositions of property from (a) the Borrower to any Subsidiary Guarantor, (b) any Subsidiary Guarantor to any other
Subsidiary Guarantor or the Borrower, (c) any Restricted Subsidiary that is not a Subsidiary Guarantor to any other Restricted Subsidiary that is not a Subsidiary Guarantor or to any Loan Party and (d) the Borrower or any Subsidiary
Guarantor to any Restricted Subsidiary; provided that the amount of Dispositions made in reliance on this sub-clause (d) shall not exceed
$25,000,00050,000,000
per fiscal year;
(i) Dispositions expressly permitted by Section 8.3, Section 8.6 and Section 8.7;
(j) leases or subleases of property in the ordinary course of business which do not materially interfere with the conduct of the business of the Borrower or any of its Restricted Subsidiaries taken as a whole;
(k) Dispositions of property in connection with Recovery Events;
(l) Dispositions of past due accounts receivable in connection with the collection, write down or compromise thereof in the ordinary course of business;
(m) other Dispositions of property having an aggregate fair market value not in excess of $25,000,00050,000,000
(as determined by the Borrower in good faith);
(n) sales, transfers, leases and other dispositions to a Foreign Subsidiary; provided, that any such sales, transfers, leases or other dispositions from the Borrower or any Subsidiary Guarantor shall be made (i) in compliance with Section 8.9 and (ii) to the extent not made in compliance with Section 8.9, shall be treated as an Investment in such Foreign Subsidiary and shall be permitted only to the extent permitted pursuant to Section 8.7;
(o) Dispositions of Investments in joint ventures, to the extent required by, or made pursuant to buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; provided that the consideration received shall be in an amount at least equal to the fair market value thereof (determined in good faith by the Borrower);
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(p) sales, forgiveness or other dispositions of accounts receivable in the ordinary course of business in connection with the collection or compromise thereof;
(q) any issuance or sale of Capital Stock in, or sale of Indebtedness or other securities of, an Unrestricted Subsidiary;
(r) the issuance of Capital Stock by a Restricted Subsidiary that represents all or a portion of the consideration paid by the Borrower or a Restricted Subsidiary in connection with any Investment permitted by Section 8.7, including in connection with the formation of a joint venture with a Person other than a Restricted Subsidiary;
(s) Dispositions of other property; provided that (i) at the time of such Disposition, no Default
or Event of Default shall have occurred and been continuing or would result from such Disposition, (ii) with respect to any Disposition pursuant to this Section 8.5(s) of property having an aggregate fair market value (determined as of the
closing of such Disposition) not to exceed $25,000,00050,000,000, the Borrower or any of its Restricted Subsidiaries shall receive not less than 75% of such consideration in the
form of cash or Cash Equivalents; provided, however, that for the purposes of this clause (ii), the following shall be deemed to be cash: (A) any liabilities (as shown on the Borrower’s most recent balance sheet
provided hereunder or in the footnotes thereto) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the payment in cash of the Obligations, that are assumed by the transferee with respect to
the applicable Disposition and for which the Borrower and all of its Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, (B) any securities received by the Borrower or the applicable Restricted
Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 120 days following the closing of the applicable
Disposition, and (C) aggregate non-cash consideration received by the Borrower or the applicable Restricted Subsidiary having an aggregate fair market value (determined as of the closing of the applicable
Disposition for which such non-cash consideration is received) not to exceed $25,000,00050,000,000 and (iii) such Disposition is for fair market value as reasonably
determined by the Borrower in good faith;
(t) [reserved];
(u) the Disposition of Capital Stock of the Borrower’s Canadian Subsidiaries from the Borrower to ADS Worldwide, Inc.; and
(v) Dispositions of Capital Stock deemed to occur upon the exercise of stock options, warrants or other equity derivatives or settlement of convertible securities if such Capital Stock represent (i) a portion of the exercise price thereof or (ii) withholding incurred in connection with such exercise.
8.6 Restricted Payments. Declare or pay any dividend (other than dividends payable solely in Capital Stock (other than Disqualified Capital Stock) of the Person making such dividend) on, or make any payment on account of, or set apart assets for a sinking or other analogous fund for, the purchase, redemption, defeasance, retirement or other acquisition of, any Capital Stock of any Group Member, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of any Group Member (collectively, “Restricted Payments”), except that, subject to the Non-Loan Party Limitation Provision:
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(a) (i) any Restricted Subsidiary may make Restricted Payments to the Borrower or any Subsidiary Guarantor (and, in the case of a Restricted Payment by a non-Wholly Owned Subsidiary, to (x) the Borrower or any Subsidiary Guarantor and (y) to each other owner of Capital Stock of such Restricted Subsidiary based on their relative ownership interests); and (ii) any Restricted Subsidiary that is not a Loan Party may make Restricted Payments to any Restricted Subsidiary;
(b) so long as no Event of Default has occurred and is continuing or would result therefrom, the Borrower may purchase the Borrower’s
Capital Stock from present or former officers, directors or employees of any Group Member upon the death, disability, retirement or termination of employment or service of such officer, director or employee or otherwise under any stock option or
employee stock ownership plan approved by the board of directors of the Borrower, in an aggregate amount (net of any proceeds received by the Borrower in connection with resales of any Capital Stock so purchased) not exceeding $5,000,00010,000,000
in any fiscal year (with unused amounts carried over to the succeeding fiscal year);
(c) [Reserved];
(d) Restricted Payments by the Borrower to redeem in whole or in part any of its Capital Stock for another class of its Capital Stock or rights to acquire its Capital Stock or with proceeds from substantially concurrent equity contributions or issuances of new Capital Stock; provided that any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Capital Stock are at least as advantageous to the Lenders as those contained in the Capital Stock redeemed thereby; provided, further, that the only consideration paid for any such redemption is Capital Stock of the Borrower or the proceeds of any substantially concurrent equity contribution or issuance of Capital Stock;
(e) So long as
no Event of Default has occurred and is continuing or would result therefrom (i) the Borrower may make Restricted Payments in an aggregate amount not to exceed (x) the Fixed Restricted Payment Basket Amount in any fiscal year, less
(y) any Restricted Payments made pursuant to this Section 8.6(e), any Investments made pursuant to Section 8.7(z) and any repayments, repurchases, redemptions, defeasances or other acquisitions, retirements or discharges of Junior
Debt pursuant to Section 8.8, in each case, made in reliance on the Fixed Restricted Payment Basket Amount during such fiscal year, plus (z) the Available Amount, and (ii) the Borrower shall be permitted to make unlimited
Restricted Payments so long as the Consolidated Net Leverage Ratio is less than 3.253.50:1.00 after giving pro forma effect to such Restricted Payment;
(f) any dividends required by the terms of Capital Stock held by the ESOP may be paid;
(g) the Borrower may repurchase its Capital Stock upon the exercise of stock options, warrants or other equity derivatives or settlement of convertible securities if such Capital Stock represents a portion of the exercise price of such options, warrants or other equity derivatives or the settlement price of such convertible securities; provided that such repurchase shall not be paid in cash;
135
(h) the Borrower may make cash payments in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Capital Stock in the Borrower;
(i) the Borrower may make Restricted Payments in an aggregate amount not to exceed the aggregate amount of net cash proceeds received from sales or issuances of the Capital Stock of the Borrower (other than Disqualified Capital Stock) after the Closing Date to the extent such net cash proceeds have not been otherwise applied to build the Available Amount or any other basket for the incurrence of Indebtedness or the making of any Investment or Restricted Payment;
(j) any repurchase of Capital Stock deemed to occur upon the non-cash exercise of Capital Stock to pay Taxes shall be permitted; and
(k) the payment of any dividend or distribution, or the consummation of any irrevocable redemption, within 60 days after the date of declaration of the dividend or distribution or giving of the redemption notice, as the case may be, if at such date of declaration or redemption notice such dividend, distribution or redemption, as the case may be, would have complied with this Section 8.6 shall be permitted.
8.7 Investments. Make any advance, loan, extension of credit (by way of guaranty or otherwise) or capital contribution to, or purchase any Capital Stock, bonds, notes, debentures or other debt securities of, or any assets constituting a business unit of any Person (all of the foregoing, “Investments”), except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments in Cash Equivalents;
(c) Guarantee Obligations permitted by Section 8.2;
(d) Guarantee Obligations to insurers required in connection with worker’s compensation and other insurance coverage arranged in the ordinary course of business;
(e) Investments held by the Borrower or any Restricted Subsidiary on the Closing Date and described on Schedule 8.7(e);
(f) loans and advances to directors, officers and employees of any Group Member of the Borrower in the ordinary course
of business (including for travel, entertainment and relocation expenses) in an aggregate amount for all Group Members, together with the aggregate amount of Indebtedness outstanding under Section 8.2(i), not to exceed $10,000,00020,000,000
at any one time outstanding;
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(g) non-cash consideration received in any Disposition permitted by Section 8.5;
(h) any Permitted Acquisition; provided that the aggregate amount of consideration paid in respect of all Permitted Acquisitions of (x) Persons that do not become Subsidiary Guarantors and/or (y) assets that do not become Collateral shall not exceed 10.0% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the most recently ended period of four consecutive fiscal quarters for which financial statements have been delivered pursuant to Section 7.1;
(i) intercompany Investments by any Group Member in the Borrower or any Person that, prior to such Investment, is a Subsidiary Guarantor;
(j) Investments (x) in Restricted Subsidiaries that are not Subsidiary Guarantors (including Permitted Acquisitions of Persons
which become Foreign Subsidiaries, Incurrence of Guarantee Obligations with respect to obligations of Foreign Subsidiaries, loans made to Foreign Subsidiaries and Investments resulting from mergers with or sales of assets to any such Foreign
Subsidiaries) or (y) in joint ventures or other similar agreements or partnerships, in each case so long as the aggregate amount of all such Investments made by the Borrower or any of its Restricted Subsidiaries pursuant to this
Section 8.7(j) after the Second Amendment Effective Date does not, immediately after giving effect to such Investments (subject to Section 1.3), exceed the greater of (i)
$75,000,000400,000,000
and (ii)
510
% of Consolidated Total Assets as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 7.1;
(k) Investments (including debt obligations) received in connection with the bankruptcy or reorganization of suppliers and customers and in good faith settlement of delinquent obligations of, and other disputes with, customers and suppliers arising in the ordinary course of business;
(l) Hedge Agreements permitted under Section 8.11;
(m) intercompany Investments by any Restricted Subsidiary that is not a Loan Party in any other Restricted Subsidiary that is not a Loan Party;
(n) Investments expressly permitted by Sections 8.3, 8.4 and 8.6(c);
(o) Asset Swaps consummated in compliance with Section 8.5;
(p) any indemnity obligations in connection with the Acquisition;
(q) intercompany loans permitted by Section 8.2;
(r) advances of payroll payments to employees in the ordinary course of business;
(s) lease, utility and other similar deposits in the ordinary course of business;
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(t) Investments to the extent financed by the issuance of Capital Stock of the Borrower;
(u) Investments of any Person in existence at the time such Person becomes a Restricted Subsidiary; provided such Investment was not made in connection with or anticipation of such Person becoming a Restricted Subsidiary and any modification, replacement, renewal or extension thereof;
(v) any Investment in an aggregate amount not to exceed at any time the aggregate amount of Net Cash Proceeds received from sales or issuances of Capital Stock of the Borrower after the Closing Date to the extent such Net Cash Proceeds have not been otherwise applied to build the Available Amount, or to build any other basket for the incurrence of Indebtedness or the making of any Investment or Restricted Payment;
(w) [reserved];
(x) Investments (i) in Restricted Subsidiaries in connection with reorganizations or other activities related to tax planning; provided that, after giving effect to any such reorganization or other activity related to tax planning, the security interest of the Administrative Agent (for the benefit of the Secured Parties) in the Collateral, taken as a whole, is not materially impaired and (ii) by any Loan Party in any Restricted Subsidiary that is not a Loan Party consisting of the contribution of Capital Stock of any Person that is not a Loan Party (other than Capital Stock constituting Collateral);
(y) any Investments in any Subsidiary or joint venture in connection with intercompany cash management arrangements or related activities arising in the ordinary course of business; provided that any entity that serves to hold cash balances for the purposes of making such advances to Subsidiaries or joint ventures is a Loan Party;
(z) guarantees of leases (other than Capital Lease Obligations), contracts, or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(aa) Permitted Foreign Investments;
(bb) subject to Section 1.3, so long as no Event of Default has occurred and is continuing or would result therefrom (i) the Borrower may make Investments in an aggregate amount not to exceed (x) the Fixed Restricted Payment Basket Amount in any fiscal year, less (y) any Investments made pursuant to this Section 8.7(bb), any Restricted Payments made pursuant to Section 8.6(e), and any repayments, repurchases, redemptions, defeasances or other acquisitions, retirements or discharges of Junior Debt pursuant to Section 8.8, in each case made in reliance on the Fixed Restricted Payment Basket Amount during such fiscal year, plus (z) the Available Amount and (ii) the Borrower shall be permitted to make unlimited Investments so long as the Consolidated Net Leverage Ratio is less than 3.50:1.00 after giving pro forma effect to such Investment;
(cc) in addition to Investments otherwise expressly permitted by this Section, Investments by the Borrower or
any of its Restricted Subsidiaries in an aggregate amount at any time outstanding, not exceeding the greater of (i) $100,000,000200,000,000 and (ii) 5% of Consolidated Total Assets as of the last day of the
most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 7.1; and
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(dd) Guarantee Obligations of the Borrower in connection with obligations of the Restricted Subsidiaries party to Specified Hedge Agreements and Specified Cash Management Arrangements.
For purposes of covenant compliance with this Section 8.7, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment, less any amount paid, repaid, returned, distributed or otherwise received in cash in respect of such Investment. In addition, to the extent an Investment is permitted to be made by any Group Member directly in any other Person (each such person, a “Target Person”) under any provision of this Section 8.7, such Investment may be advanced or contributed by the Group Member to a Restricted Subsidiary that is not a Loan Party for purposes of ultimately making the relevant Investment in the Target Person without such advancement or contribution constituting an Investment for purposes of Section 8.7 (it being understood that such Investment must satisfy the requirements of, and shall count toward any thresholds or baskets in, the applicable clause under Section 8.7 as if made by the applicable Group Member directly in the Target Person).
Notwithstanding anything to the contrary in this Agreement, in no event shall (a) the Borrower or any of its Restricted Subsidiaries (i) designate (it being understood that any such designation shall be considered an Investment as set forth in the definition of Unrestricted Subsidiary in an amount equal to the fair market value of the Borrower’s or Restricted Subsidiary’s (as applicable) Investment therein), make any Investment in, or Dispose of assets to, or make any Restricted Payments to, Unrestricted Subsidiaries in an aggregate amount exceeding the greater of $200,000,000 and 5% of Consolidated Total Assets (the “Unrestricted Subsidiary Cap”); provided that, for avoidance of doubt, there shall be no (i) “rebuilding” of the Unrestricted Subsidiary Cap, including, without duplication, with proceeds received on account of any indebtedness incurred by an Unrestricted Subsidiary, return of investment or proceeds from the sale thereof or any redesignation of such Unrestricted Subsidiary as a Restricted Subsidiary or (ii) reclassification of the Unrestricted Subsidiary Cap (this clause (a), the “Unrestricted Subsidiary Cap Provision”) and (b) any Loan Party (i) dispose of (including, by way of exclusive license) any Material Asset to any Subsidiary that is not a Loan Party or (ii) contribute or otherwise invest any Material Asset to or in any Subsidiary that is not a Loan Party (this clause (b), together with the Unrestricted Subsidiary Cap Provision, the “Non-Loan Party Limitation Provision”).
8.8 Optional Payments and Modifications of Certain Debt Instruments; Certain Modifications. (a) Make or offer to make any
optional or voluntary payment, prepayment, repurchase or redemption of or otherwise optionally or voluntarily defease or segregate funds with respect to any unsecured Indebtedness (other than any intercompany Indebtedness) or subordinated or junior
lien Indebtedness of the Borrower or any of its Restricted Subsidiaries in an aggregate outstanding principal amount in excess of $25,000,00050,000,000 (including in such principal amount all indebtedness issued under the
same instrument) (collectively, “Junior Debt”)
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(other than in connection with Junior Debt, a Permitted Refinancing therefor or the conversion of any Junior Debt to Capital Stock of the Borrower (other than Disqualified Capital Stock));
provided, that on any date after the Closing Date, the Borrower may (i) so long as no Event of Default has occurred and is continuing or would result therefrom, redeem, repurchase, defease or otherwise prepay Junior Debt in an aggregate
amount not to exceed (x) the Fixed Restricted Payment Basket Amount in any fiscal year, less (y) any Restricted Payments made pursuant to Section 8.6(e), any Investments made pursuant to Section 8.7(z) and any repayments,
repurchases, redemptions, defeasances or other acquisitions, retirements or discharges of Junior Debt pursuant to this Section 8.8, in each case made in reliance on the Fixed Restricted Payment Basket Amount during such fiscal year, plus
(z) the Available Amount, (ii) redeem, repurchase, defease or otherwise prepay Junior Debt in an unlimited amount, so long as no Event of Default has occurred and is continuing or would result therefrom and the Consolidated Senior Secured
Net Leverage Ratio is less than
2.252.50
:1.00, (iii) convert any Junior Debt to Capital Stock (other than Disqualified Capital Stock) and (iv) prepay, redeem, purchase or defease any Junior Debt with any Permitted Refinancing thereof permitted pursuant to
Section 8.2, or (b) amend, modify, waive or otherwise change, or consent or agree to any amendment, modification, waiver or other change to, any of the terms of any of the Junior Debt (other than technical corrections or
modifications) (i) which shortens the fixed maturity or increases the principal amount of, or increases the rate or shortens the time of payment of interest on, or increases the amount or shortens the time of payment of any principal or premium
payable whether at maturity, at a date fixed for prepayment or by acceleration or otherwise of the Indebtedness evidenced by any Junior Debt, or increases the amount of, or accelerates the time of payment of, any fees or other amounts payable in
connection therewith; (ii) which adds or relates to any material affirmative or negative covenants or any events of default or remedies thereunder and the effect of which is to subject the Borrower or any of its Restricted Subsidiaries to any
more onerous or more restrictive provisions; or (iii) which otherwise materially and adversely affects the interests of the Lenders, taken as a whole, under this Agreement or any other Loan Document without the prior consent of the Facilities
Administrative Agents (such consent not to be unreasonably withheld); provided that it is understood and agreed that the foregoing limitation shall not prohibit any Permitted Refinancing Indebtedness in respect thereof that is otherwise
permitted by Section 8.2.
8.9 Transactions with Affiliates. Enter into any transaction with a value in excess of $10,000,00025,000,000, including any purchase, sale, lease or exchange of property, the rendering of any service or the payment of any management, advisory or similar fees, with any Affiliate (other than the Borrower or its Restricted
Subsidiaries), unless such transaction is (i) otherwise permitted under this Agreement and (ii) upon fair and reasonable terms not materially less favorable to the relevant Group Member, than it would obtain in an arm’s length
transaction with a Person that is not an Affiliate. Notwithstanding the foregoing, the Borrower and its Restricted Subsidiaries may do the following:
(a) Restricted Payments may be made to the extent permitted by Section 8.6;
(b) loans may be made and other transactions may be entered into by the Borrower and its Restricted Subsidiaries to the extent expressly permitted by Sections 8.2, 8.4, 8.5 and 8.7;
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(c) customary fees and indemnifications may be paid to directors of the Borrower and its Restricted Subsidiaries;
(d) the Borrower and its Restricted Subsidiaries may in the ordinary course of business (i) enter into, and may make payments under, employment agreements, employee benefits plans, stock option plans, indemnification provisions and other similar compensatory arrangements with officers, employees and directors of the Borrower and its Restricted Subsidiaries and (ii) establish Benefit Plans and make amendments and contributions thereto;
(e) the execution, delivery and performance of a tax sharing agreement with respect to any of the charges, taxes or assessments described in clause (B) of Section 8.6(c)(ii), to the extent that payments in connection with such tax sharing agreement are permitted by Section 8.6(c)(ii);
(f) [reserved];
(g) sales of Capital Stock (other than Disqualified Capital Stock) of the Borrower to its Affiliates and options and warrants exercisable therefore and the granting of registration and other customary rights in connection therewith;
(h) any transaction with an Affiliate where the only consideration paid is Capital Stock of the Borrower (other than Disqualified Capital Stock);
(i) any transaction with an Affiliate existing on the Closing Date and listed on Schedule 8.9(i);
(j) [reserved];
(k) leases or subleases of property in the ordinary course of business not materially interfering with the business of the Borrower and the Restricted Subsidiaries taken as a whole;
(l) transactions between or among the Borrower and/or any Restricted Subsidiary and any entity that becomes a Restricted Subsidiary as a result of such transaction;
(m) any agreement between any Person and an Affiliate of such Person existing at the time such Person is acquired by or merged into the Borrower or any of its Restricted Subsidiaries pursuant to the terms of this Agreement; provided that such agreement was not entered into in contemplation of such acquisition or merger, or any amendment thereto (so long as any such amendment is not disadvantageous to the Lenders in any material respect in the good faith judgment of the Borrower when taken as a whole as compared to such agreement as in effect on the date of such acquisition or merger); and
(n) any other transactions with an Affiliate, which is approved by a majority of Disinterested Directors of the Borrower in good faith.
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8.10 [Reserved].
8.11 Hedge Agreements. Enter into any Hedge Agreement, except (a) Hedge Agreements entered into to hedge or mitigate risks to which the Borrower or any Restricted Subsidiary has actual or anticipated exposure (other than those in respect of Capital Stock) and (b) Hedge Agreements entered into in order to effectively cap, collar or exchange interest rates (from fixed to floating rates, from one floating rate to another floating rate or otherwise) with respect to any interest-bearing liability or investment of the Borrower or any Restricted Subsidiary.
8.12 Changes in Fiscal Periods. Permit the fiscal year of the Borrower to end on or about a day other than March 31 or change the Borrower’s method of determining fiscal quarters without the prior consent of the Facilities Administrative Agents (not to be unreasonably withheld).
8.13 Negative Pledge Clauses. Enter into or suffer to exist or become effective any agreement that prohibits or limits the ability of any Group Member to create, become subject to, assume or otherwise incur, or suffer to exist, any Lien upon any of its assets, whether now owned or hereafter acquired, to secure its obligations under the Loan Documents to which it is or may become a party other than (a) this Agreement, the other Loan Documents and under any Hedge Agreement permitted under Section 8.11, (b) any agreements governing any purchase money Liens or Capital Lease Obligations otherwise permitted hereby, if the prohibition or limitation therein is only effective against the assets financed thereby, (c) agreements for the benefit of the holders of Liens described in Section 8.3(k) or 8.3(l) and applicable solely to the property subject to such Lien, (d) any agreement existing on the Closing Date and listed on Schedule 8.13(d), (e) covenants in documents creating Liens permitted by Section 8.3(k) prohibiting further Liens on the properties encumbered thereby, (f) any other agreement that does not restrict in any manner (directly or indirectly) Liens created pursuant to the Loan Documents on any Collateral securing the Secured Obligations or securing any Credit Agreement Refinancing Indebtedness and does not require the direct or indirect granting of any Lien securing any Indebtedness or other obligation by virtue of the granting of Liens on or pledge of property of any Loan Party to secure the Secured Obligations, (g) covenants in any Indebtedness permitted pursuant to Section 8.2 to the extent such restrictions or conditions are no more restrictive, taken as a whole, than the restrictions and conditions in the Loan Documents or, in the case of subordinated Indebtedness, are market terms at the time of issuance or, in the case of Indebtedness of any Restricted Subsidiary that is not a Loan Party, are imposed solely on any Restricted Subsidiary that is not a Loan Party, (h) any prohibition or limitation that (1) exists pursuant to Requirements of Law or any request of any Governmental Authority having regulatory authority over the Borrower or any of its Subsidiaries, (2) consists of customary restrictions and conditions contained in any agreement relating to the sale of any property permitted under Section 8.5 pending the consummation of such sale, solely with respect to such property subject to such sale, (3) is contained in leases, subleases, licenses, sublicenses or similar agreements, in each case, so long as such provisions are customary and such leases, subleases, licenses or similar agreements were entered into in the ordinary course of business, (4) exists in any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Borrower or any Restricted Subsidiary, or of an Unrestricted Subsidiary that is designated a Restricted Subsidiary, or that is assumed in connection with the acquisition of assets from such Person, in each case that is in existence at the time of such transaction (but not created in contemplation thereof), (5) is imposed by any amendments or refinancings that are otherwise permitted by the Loan Documents of the contracts, instruments or obligations referred to in clauses (b), (f), (g) or (h)(4); provided that such
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amendments and refinancings are, taken as a whole, no more materially restrictive with respect to such prohibitions and limitations than those prior to such amendment or refinancing, (i) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business, (j) customary restrictions that arise in connection with any Lien permitted by Section 8.3 on any asset or property that is not, and is not required to be, Collateral that relates to the asset or property subject to such Lien, (k) any restrictions and conditions imposed by any amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing of any contract, instrument or obligation referred to in clauses (a) through (i) above; provided that such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing is, in the good faith judgment of the Borrower, no more restrictive with respect to such restrictions taken as a whole than those in existence prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing, and (l) customary provisions in joint venture agreements, partnership agreements or limited liability company governance documents and other similar agreements applicable to joint ventures or non-Wholly Owned Subsidiaries and applicable solely to such joint venture or non-Wholly Owned Subsidiary.
8.14 Clauses Restricting Subsidiary Distributions. Enter into or suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary of any Group Member to (a) make Restricted Payments in respect of any Capital Stock of such Restricted Subsidiary held by, or pay any Indebtedness owed to, any Group Member, (b) make loans or advances to, or other Investments in, any Group Member, or (c) transfer any of its assets to any Group Member, except, in each case, for such encumbrances or restrictions existing under or by reason of (i) any restrictions existing under the Loan Documents, (ii) any encumbrance or restriction pursuant to applicable law or an agreement in effect at or entered into on the Closing Date (including any indenture in connection with the Transactions and any other transactions expected to be entered into in connection therewith) or in connection with the Transactions and any other transactions expected to be entered into in connection therewith, (iii) any encumbrance or restriction with respect to a Restricted Subsidiary or any of its Restricted Subsidiaries pursuant to an agreement relating to any Indebtedness Incurred by such Restricted Subsidiary prior to the date on which it became a Restricted Subsidiary (other than Indebtedness Incurred as consideration in, in contemplation of, or to provide all or any portion of the funds or credit support utilized to consummate the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary) and outstanding on such date, which encumbrance or restriction is not applicable to the any other Group Member or the properties or assets of any other Group Member, (iv) any encumbrance or restriction pursuant to an agreement effecting a refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i), (ii) or (iii) of this covenant or this clause (iv) or contained in any amendment to an agreement referred to in clause (i), (ii) or (iii) of this covenant or this clause (iv); provided, however, that the encumbrances and restrictions contained in any such refinancing agreement or amendment are not materially less favorable, taken as a whole, as determined by the Borrower in good faith, to the Lenders than the encumbrances and restrictions contained in such predecessor agreement, (v) with respect to clause (c), any encumbrance or restriction (A) that restricts the subletting, assignment or transfer of any property or asset or right and is contained in any lease, license or other contract entered into in the ordinary course of business or (B) contained in security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restriction restricts the transfer of the property subject to such security agreements, (vi) any restrictions with respect to a Restricted
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Subsidiary imposed pursuant to an agreement that has been entered into in connection with the Disposition of all or substantially all of the Capital Stock or assets of such Restricted Subsidiary, (vii) any encumbrances or restrictions applicable solely to a Restricted Subsidiary that is not a Loan Party and contained in any credit facility extended to such Restricted Subsidiary, (viii) restrictions in the transfers of assets encumbered by a Lien permitted by Section 8.3, (ix) any encumbrance or restriction arising under or in connection with any agreement or instrument relating to any Indebtedness permitted by Section 8.2 if the encumbrance or restriction is not materially more disadvantageous to the Lenders, taken as a whole, than is customary in comparable financings (as determined in good faith by the Borrower), (x) any encumbrance or restriction arising under or in connection with any agreement or instrument governing Capital Stock of any Person other than a Wholly Owned Subsidiary that is acquired after the Closing Date, (xi) customary restrictions and conditions contained in any agreement relating to the Disposition of any property permitted by Section 8.5 pending the consummation of such Disposition, (xii) customary provisions in joint venture agreements and other similar agreements applicable to joint ventures, (xiii) any holder of a Lien permitted by Section 8.3(k) restricting the transfer of the property subject thereto, (xiv) customary restrictions and conditions contained in any agreement relating to the sale of any property permitted under Section 8.5 pending the consummation of such sale, (xv) customary provisions in partnership agreements, limited liability company organizational governance documents, asset sale and stock sale agreements and other similar agreements entered into in the ordinary course of business that restrict the transfer of ownership interests in such partnership, limited liability company or similar person, (xvi) provisions in agreements or instruments which prohibit the payment of dividends or the making of other distributions with respect to any class of Capital Stock of a Person other than on a pro rata basis, and (xvii) any restrictions and conditions imposed by any amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing of any contract, instrument or obligation referred to in clauses (i) through (xviii) above; provided that such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing is, in the good faith judgment of the Borrower, no more restrictive with respect to such restrictions taken as a whole than those in existence prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
8.15 Lines of Business. Enter into any business, either directly or through any Restricted Subsidiary, except for those businesses in which the Borrower and its Restricted Subsidiaries are engaged on the Closing Date or that are reasonably related thereto or similar or complementary thereto or are reasonable extensions thereof, including without limitation the processing, sale and distribution of recycled plastic resin.
8.16 Outbound Investment Rules. The Borrower will not, and will not permit any of its Subsidiaries to, (a) be or become a “covered foreign person”, as that term is defined in the Outbound Investment Rules, or (b) engage, directly or indirectly, in (i) a “covered activity” or a “covered transaction”, as each such term is defined in the Outbound Investment Rules, (ii) any activity or transaction that would constitute a “covered activity” or a “covered transaction”, as each such term is defined in the Outbound Investment Rules, if the Borrower were a U.S. Person or (iii) any other activity that would cause any Facilities Administrative Agent or any Lender to be in violation of the Outbound Investment Rules or cause any Facilities Administrative Agent or any Lender to be legally prohibited by the Outbound Investment Rules from performing under this Agreement.
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SECTION 9. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) the Borrower shall fail to pay (i) any principal of any Loan or Reimbursement Obligation when due in accordance with the terms hereof or (ii) any interest on any Loan or Reimbursement Obligation, or any other amount payable hereunder or under any other Loan Document, within 5 Business Days after any such interest or other amount becomes due in accordance with the terms hereof; or
(b) any representation or warranty made or deemed made by any Loan Party herein or in any other Loan Document shall prove to have been inaccurate in any material respect on or as of the date made or deemed made; or
(c) any Loan Party shall fail to observe or perform any agreement contained in clause (i) or (ii) of Section 7.4(a) (with respect to the Borrower only), Section 7.7(a) or Section 8 of this Agreement; provided, that any failure by the Borrower to observe any term, covenant or agreement under Section 8.1 shall not constitute an Event of Default with respect to the Term Loans until the earlier of (i) the date that the Revolving Lenders declare all outstanding obligations under the Revolving Loans and Revolving Commitments to be immediately due and payable as a result of the Borrower’s failure to observe such term, covenant or agreement in Section 8.1 and (ii) the date on which the Revolving Administrative Agent or the Revolving Lenders exercise any remedies with respect to the Revolving Loans in accordance with Section 9; provided, further, that any failure by the Borrower to observe any term, covenant or agreement under Section 8.1 may be waived from time to time pursuant to clause (xiii) of Section 11.1; or
(d) any Loan Party shall fail to observe or perform any other agreement contained in this Agreement or any other Loan Document (other than as provided in paragraphs (a) through (c) or paragraph (l) of this Section 9), and such failure shall continue unremedied for a period of 30 days after written notice thereof is given to the Borrower by any Facilities Administrative Agent or any Lender; or
(e) the Borrower or any Material Subsidiary shall (i) default in making any payment of any principal of any Indebtedness (including any Hedge Agreement or Guarantee Obligation, but excluding the Loans) on the scheduled or original due date with respect thereto; (ii) default in making any payment of any interest on any such Indebtedness beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness was created; or (iii) default in the observance or performance of any other agreement or condition relating to any such Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist beyond the period of grace provided in such instrument or agreement, if any, the effect of which default or other event or condition is to cause, or to permit the holder or beneficiary of such Indebtedness (or a trustee or agent on behalf of such holder or beneficiary) to cause, with the giving of notice if required, such Indebtedness to become due prior to its stated maturity or to become subject to a mandatory offer to purchase by the obligor thereunder or (in the case of any such Indebtedness constituting a Guarantee Obligation) to become payable; provided, that a default, event or condition described in clause (i), (ii) or (iii) of this paragraph (e) shall not at any time constitute an Event of Default
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unless, at such time, one or more defaults, events or conditions of the type described in clauses (i), (ii) or (iii) of this paragraph (e) shall have occurred and be continuing with
respect to Indebtedness the outstanding principal amount of which exceeds in the aggregate
$50,000,000100,000,000
; provided, further, that this paragraph (e) shall not apply to (A) secured Indebtedness that becomes due as a result of the Disposition (including as a result of a casualty or condemnation event) of the property or
assets securing such Indebtedness unless such secured Indebtedness is not paid on such due date or (B) with respect to Indebtedness incurred under any Hedge Agreement, termination events or equivalent events pursuant to the terms of the
relevant Hedge Agreement which are not the result of any default thereunder by any Loan Party or any Subsidiary; or
(f) (i) the Borrower or any Material Subsidiary shall commence any case, proceeding or other action (A) under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (B) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or the Borrower or any Material Subsidiary shall make a general assignment for the benefit of its creditors; or (ii) there shall be commenced against the Borrower or any Material Subsidiary any case, proceeding or other action of a nature referred to in clause (i) above that (A) results in the entry of an order for relief or any such adjudication or appointment or (B) remains undismissed, undischarged or unbonded for a period of 60 days; or (iii) there shall be commenced against the Borrower or any Material Subsidiary any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets that results in the entry of an order for any such relief that shall not have been vacated, discharged, or stayed or bonded pending appeal within 60 days from the entry thereof; or (iv) the Borrower or any Material Subsidiary shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v) the Borrower or any Material Subsidiary shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due; or
(g) (i) any Person shall engage in any non-exempt “prohibited transaction” (as defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan, (ii) any failure to satisfy the minimum funding standard (as defined in Sections 412 and 430 of the Code and Sections 302 and 303 of ERISA), whether or not waived, shall exist with respect to any Single Employer Plan or any Lien in favor of the PBGC or a Single Employer Plan shall arise on the assets of any Group Member or any Commonly Controlled Entity, (iii) a Reportable Event shall occur with respect to, or proceedings shall commence to have a trustee appointed, or a trustee shall be appointed, to administer or to terminate, any Single Employer Plan, which Reportable Event or commencement of proceedings or appointment of a trustee is, in the reasonable opinion of the Required Lenders, likely to result in the termination of such Plan for purposes of Title IV of ERISA, (iv) any Single Employer Plan shall terminate in a distress termination under Section 4041(c) of ERISA or in an involuntary termination by the PBGC under Section 4042 of ERISA, (v) any Group Member or any Commonly Controlled Entity shall, or in the reasonable opinion of the Required Lenders is likely to, incur any liability in connection with a withdrawal from, or the Insolvency of, a Multiemployer Plan or (vi) any other event or condition shall occur or exist with respect to a Plan; and in each case in clauses (i), (iii), (iv), (v) and (vi) above, such event or condition, together with all other such events or conditions, if any, would, in the aggregate, reasonably be expected to have a Material Adverse Effect; or
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(h) one or more judgments or decrees for the payment of money shall be entered against the
Borrower or any Material Subsidiary involving in the aggregate a liability (not paid or fully covered by insurance) of $50,000,000100,000,000 or more, and all such judgments or decrees shall not have been
vacated, paid, discharged, stayed or bonded pending appeal within 60 days from the entry thereof; or
(i) any of the Security
Documents shall cease, for any reason other than as set forth in Section 11.14, to be in full force and effect, or any Loan Party shall so assert, or any Lien created by any of the Security Documents shall cease to be enforceable or (except as
expressly set forth therein or as a result of the actions, or lack thereof, by the Administrative Agent) perfected as to any property of the Loan Parties having an aggregate value exceeding $50,000,000100,000,000
; or
(j) the guarantee contained in Section 2 of the Guarantee and Collateral Agreement shall cease, for any reason, to be in full force and effect or any Loan Party shall so assert, in each case, other than in connection with a release of any Subsidiary Guarantor in accordance with the terms of this Agreement; or
(k) Change of Control shall occur,
then, and in any such event, (A) if such event is an Event of Default specified in clause (i) or (ii) of paragraph (f) above with respect to the Borrower, automatically the Commitments shall immediately terminate and the Loans hereunder (with accrued interest thereon) and all other amounts owing under this Agreement and the other Loan Documents (including all amounts of L/C Obligations, whether or not the beneficiaries of the then outstanding Letters of Credit shall have presented the documents required thereunder) shall immediately become due and payable, (B) if such event is any other Event of Default, either or both of the following actions may be taken: (i) the Revolving Administrative Agent may, or upon the request of the Required Revolving Lenders shall, by notice to the Borrower declare the Revolving Commitments to be terminated forthwith, whereupon the Revolving Commitments shall immediately terminate; and (ii) the Facilities Administrative Agents may, or upon the request of the Required Lenders shall, by notice to the Borrower, declare the Loans hereunder (with accrued interest thereon) and all other amounts owing under this Agreement and the other Loan Documents (including all amounts of L/C Obligations, whether or not the beneficiaries of the then outstanding Letters of Credit shall have presented the documents required thereunder) to be due and payable forthwith, whereupon the same shall immediately become due and payable, and (C) if such event is the failure by the Borrower to observe any term, covenant or agreement under Section 8.1 and exists solely with respect to the Revolving Loans and/or the Revolving Commitments, the Revolving Administrative Agent may, and at the request of the Required Revolving Lenders, shall, take any of the following actions solely as they relate to Revolving Loans and/or the Revolving Commitments: (i) by notice to the Borrower declare the Revolving Commitments to be terminated forthwith, whereupon the Revolving Commitments shall immediately terminate; and (ii) by notice to the Borrower, declare the Revolving Loans hereunder (with accrued interest thereon) and all other amounts owing under this Agreement and the other Loan Documents (including all amounts of L/C Obligations, whether
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or not the beneficiaries of the then outstanding Letters of Credit shall have presented the documents required thereunder) to be due and payable forthwith, whereupon the same shall immediately become due and payable. The Borrower shall, at the time of acceleration pursuant to this paragraph, Cash Collateralize the aggregate then undrawn and unexpired amount of all Letters of Credit then outstanding. Amounts held in such cash collateral account shall be applied by the Revolving Administrative Agent to the payment of drafts drawn under such Letters of Credit, and the unused portion thereof after all such Letters of Credit shall have expired or been terminated, if any, shall be applied to repay any of the other Secured Obligations pursuant to the requirements of the Guarantee and Collateral Agreement. After all such Letters of Credit shall have expired or been terminated, all Reimbursement Obligations shall have been satisfied and all other Secured Obligations shall have been paid in full, the balance, if any, in such cash collateral account shall be returned to the Borrower (or such other Person as may be lawfully entitled thereto).
Except as expressly provided above in this Section 9, presentment, demand, protest and all other notices of any kind are hereby expressly waived by the Borrower.
SECTION 10. THE FACILITIES ADMINISTRATIVE AGENTS AND OTHER REPRESENTATIVES
10.1 Appointment. Each Lender (and, if applicable, each other Secured Party) (and, in the case of (x) the Revolving Administrative Agent, each Revolving Lender, the Swingline Lender and each Letter of Credit IssuerIssuing Lender and
(y) the Term Administrative Agent, each Term Lender) hereby irrevocably designates and appoints the
Administrative Agent, the Term Administrative Agent and the Revolving Administrative Agent as the agent of such
Lender (and, if applicable, each other Secured Party) under this Agreement and the other Loan Documents, and each such Lender (and, if applicable, each other Secured Party) irrevocably authorizes the Administrative Agent, the Term Administrative Agent and the Revolving Administrative Agent in such capacity, to take such action on its behalf
under the provisions of this Agreement and the other Loan Documents and to exercise such powers and perform such duties as are expressly delegated to the Administrative
Agent, the Term Administrative Agent and the Revolving Administrative Agent by the terms of this Agreement and the
other Loan Documents, together with such other powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary elsewhere in this Agreement, none of the Other Representatives or the Facilities Administrative Agents shall
have any duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship with any Lender or other Secured Party, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be
read into this Agreement or any other Loan Document or otherwise exist against the Facilities Administrative Agents or any Other
Representative. 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, the Term Administrative Agent or the Revolving 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.
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10.2 Delegation of Duties. Each Facilities Administrative Agent may execute any of its duties under this Agreement and the other Loan Documents by or through agents or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. The exculpatory provisions of this Section 10 shall apply to any such sub-agent and to the Related Persons of each of the Facilities 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 Facilities Administrative Agents. The Facilities Administrative Agents shall not be responsible for the negligence or misconduct of any such agents or attorneys-in-fact except to the extent that a court of competent jurisdiction determines in a final and non-appealable judgment that such Facilities Administrative Agent acted with gross negligence or willful misconduct in the selection of such agents or attorneys-in-fact.
10.3 Exculpatory Provisions. No Facilities Administrative Agent, or Other Representative nor any of their respective officers, directors, employees, agents, attorneys-in-fact or AffiliatesRelated Persons shall be (i) liable for any action lawfully taken or omitted to be taken by it or such Person under or in
connection with this Agreement or any other Loan Document (except to the extent that any of the foregoing are found by a final and non-appealable decision of a court of competent jurisdiction to have resulted
from its or such Person’s own gross negligence or willful misconduct) or (ii) responsible in any manner to any of the Lenders or any other Secured Party for any recitals, statements, representations or warranties made by any Loan Party or
any officer thereof contained in this Agreement or any other Loan Document or any Specified Hedge Agreement or in any certificate, report, statement or other document referred to or provided for in, or received by any Facilities Administrative Agent
or the Other Representatives under or in connection with, this Agreement or any other Loan Document or any Specified Hedge Agreement or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other
Loan Document or any Specified Hedge Agreement or for any failure of any Loan Party a party thereto to perform its obligations hereunder or thereunder. The Facilities Administrative Agents and the Other Representatives
(i)
shall not be under any obligation to any Lender or any other Secured Party to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this
Agreement or any other Loan Document or any Specified Hedge Agreement, or to inspect the properties, books or records of any Loan Party.
;
(ii) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; and
(iii) 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 respective Facilities 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 no Facilities Administrative Agent shall be required to take any action that, in its opinion or the opinion of its counsel, may expose such Facilities Administrative Agent to liability or that is contrary to any Loan Document or Requirement of 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.
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The Facilities Administrative Agents 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 Facilities Administrative Agents shall not (i) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (ii) 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.
10.4 Reliance by the Facilities Administrative Agents. Each Facilities Administrative Agent shall be entitled to rely, and shall be fully protected in relying, upon any instrument, writing, resolution, notice, consent, certificate, affidavit, letter, telecopy, telex or teletype message, statement, order or other document or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons and upon advice and statements of legal counsel (including counsel to the Borrower), independent accountants and other experts selected by such Facilities Administrative Agent. The Applicable Administrative Agent may deem and treat the payee of any Note as the owner thereof for all purposes unless a written notice of assignment, negotiation or transfer thereof shall have been filed with the Applicable Administrative Agent. Each Facilities Administrative Agent shall be fully justified in failing or refusing to take any action under this Agreement or any other Loan Document unless it shall first receive such advice or concurrence of the Required Lenders (or, if so specified by this Agreement, all Lenders) as it deems appropriate or it shall first be indemnified to its satisfaction by the Lenders against any and all liability and expense that may be incurred by it by reason of taking or continuing to take any such action. Each Facilities Administrative Agent shall in all cases be fully exculpated from and protected against any action or claim by any Lender or affiliate thereof, in acting, or in refraining from acting, under this Agreement and the other Loan Documents in accordance with a request of the Required Lenders (or, if so specified by this Agreement, all Lenders or all Revolving Lenders or Required Revolving Lenders), and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Lenders and all future holders of the Loans and all other Secured Parties.
10.5 Notice of Default. None of the
Term Administrative Agent
or, the Revolving Loan Administrative Agent or the Administrative Agent shall be deemed to have knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Administrative Agent, the Term Administrative Agent and the Revolving Loan Administrative
Agent have, as the case may be,
has received notice from a Lender, or the Borrower referring to this Agreement, describing such Default or Event of Default and stating that such notice is a “notice of default”. In the event that the Facilities
Administrative Agents receive such a notice, the Facilities Administrative Agents shall give notice thereof to the Lenders. The Facilities Administrative Agents shall take such action with respect to such Default or Event of Default as shall be
reasonably directed by the Required Lenders (or, if so specified by this Agreement, all
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Lenders or any other instructing group of Lenders specified by this Agreement); provided, that unless and until such Facilities Administrative Agent shall have received such directions, such Facilities Administrative Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable in the best interests of the Lenders and the Secured Parties.
10.6 Non-Reliance on Administrative Agent, the Revolving Administrative Agent and Other Lenders. Each Lender (and, if applicable, each other Secured Party) expressly acknowledges that neither the Administrative Agent, the Term Administrative Agent, the Revolving Administrative Agent nor the Other Representatives or any of their respective officers, directors, employees, agents, attorneys-in-fact or Affiliates has made any representations or warranties to it and that no act by the Administrative Agent, the Term Administrative Agent, the Revolving Administrative Agent or any Other Representative hereafter taken, including any review of the affairs of a Loan Party or any Affiliate of a Loan Party, shall be deemed to constitute any representation or warranty by the Administrative Agent, the Term Administrative Agent, the Revolving Administrative Agent or any Other Representative to any Lender or any other Secured Party. Each Lender (and, if applicable, each other Secured Party) represents to the Administrative Agent, the Term Administrative Agent, the Revolving Administrative Agent and the Other Representatives that it has, independently and without reliance upon the Administrative Agent, the Term Administrative Agent, the Revolving Administrative Agent, the Other Representatives or any other Lender or any other Secured Party, 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 condition and creditworthiness of the Loan Parties and their Affiliates and made its own decision to make its Loans hereunder and enter into this Agreement. Each Lender and Issuing Lender (and, if applicable, each other Secured Party) also represents and warrants that (i) the Loan Documents set forth the terms of a commercial lending facility and (ii) it is engaged in making, acquiring or holding commercial loans in the ordinary course and is entering into this Agreement as a Lender or Issuing Lender for the purpose of making, acquiring or holding commercial loans and providing other facilities set forth herein as may be applicable to such Lender or Issuing Lender, and not for the purpose of purchasing, acquiring or holding any other type of financial instrument, and each Lender and each Issuing Lender agrees not to assert a claim in contravention of the foregoing. Each Lender and Issuing Lender (and, if applicable, each other Secured Party) also represents that (i) it is sophisticated with respect to decisions to make, acquire and/or hold commercial loans and to provide other facilities set forth herein, as may be applicable to such Lender or such Issuing Lender, and either it, or the Person exercising discretion in making its decision to make, acquire and/or hold such commercial loans or to provide such other facilities, is experienced in making, acquiring or holding such commercial loans or providing such other facilities and (ii) it will, independently and without reliance upon the Administrative Agent, the Term Administrative Agent, the Revolving Administrative Agent, the Other Representative or any other Lender or any other Secured Party, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement and the other Loan Documents or any Specified Hedge Agreement, and to make such investigation as it deems necessary to inform itself as to the business, operations, property, financial and other condition and creditworthiness of the Loan Parties and their Affiliates. Except for notices, reports and other documents expressly required to be furnished to the Lenders by any Facilities Administrative
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Agent hereunder, such Facilities Administrative Agent shall not have any duty or responsibility to provide any Lender or any other Secured Party with any credit or other information concerning the business, operations, property, condition (financial or otherwise), prospects or creditworthiness of any Loan Party or any Affiliate of a Loan Party that may come into the possession of any Facilities Administrative Agent or any of their respective officers, directors, employees, agents, attorneys-in-fact or Affiliates.
10.7 Indemnification. The Lenders agree to indemnify each Facilities Administrative Agent and each Other Representative in its capacity as such (to the extent not reimbursed by the Borrower and without limiting the obligation of the Borrower to do so), ratably according to their respective Aggregate Exposure Percentages in effect on the date on which indemnification is sought under this Section (or, if indemnification is sought after the date upon which the Commitments shall have terminated and the Loans shall have been paid in full, ratably in accordance with such Aggregate Exposure Percentages immediately prior to such date), from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever that may at any time (whether before or after the payment of the Loans) be imposed on, incurred by or asserted against such Facilities Administrative Agent or Other Representative in any way relating to or arising out of, the Commitments, this Agreement, any of the other Loan Documents, any Specified Hedge Agreements or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by the Administrative Agent, the Term Administrative Agent, the Revolving Administrative Agent or Other Representative under or in connection with any of the foregoing; provided, that no Lender shall be liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements that are found by a final and non-appealable decision of a court of competent jurisdiction to have resulted from the Administrative Agent’s, the Term Administrative Agent’s, the Revolving Administrative Agent’s or such Other Representative’s gross negligence or willful misconduct. The agreements in this Section 10.7 shall survive the payment of the Loans and all other amounts payable hereunder.
10.8 Agent in Its Individual Capacity. Each Facilities Administrative Agent, each Other Representative and their respective Affiliates may make loans to, accept deposits from and generally engage in any kind of business with any Loan Party as though such Facilities Administrative Agent were not the Administrative Agent, the Term Administrative Agent, the Revolving Administrative or an Other Representative, as applicable. With respect to its Loans made or renewed by it and with respect to any Letter of Credit issued or participated in by it, each Facilities Administrative Agent and each Other Representative in its individual capacity as a Lender shall have the same rights and powers under this Agreement and the other Loan Documents as any Lender and may exercise the same as though it were not the Administrative Agent, the Term Administrative Agent, the Revolving Administrative Agent or Other Representative, as applicable and the terms “Lender”, “Lenders”, “Secured Party” and “Secured Parties” shall include each Facilities Administrative Agent and each Other Representative in its individual capacity as such.
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10.9 Successor Administrative Agent.
(a) Subject to the appointment and acceptance of a successor
Administrative Agent or Revolving Administrative Agent, as applicable, as provided below,
theThe Administrative Agent may resign as
Administrative Agent, the Term Administrative Agent may resign as Term Administrative Agent and the Revolving
Administrative Agent may resign as Revolving Administrative Agent. If the Administrative Agent, the Term Administrative
Agent or the Revolving Administrative Agent shall have given notice of its resignation as Administrative Agent, the
Term Administrative Agent or Revolving Administrative Agent, as applicable, under this Agreement and the other Loan Documents, then the Required Lenders (or,
(x) in the case of a resignation by the Revolving Administrative Agent, the Required Revolving Lenders or
(y) in the case of a resignation by the Term Administrative Agent, the Required Term
Lenders) shall appoint from among the Lenders or the Revolving Lenders, as applicable,
aa financial institution as a successor agent
for the Lenders, which successor agent shall (unless an Event of Default under Section 9(a) or Section 9(f) with respect to the Borrower shall have occurred and be continuing) be subject to approval by the Borrower (which approval shall
not be unreasonably withheld or delayed), whereupon such successor agent shall succeed to the rights, powers and duties of the Administrative Agent,
the Term Administrative Agent or the Revolving Administrative Agent, as applicable and the term
“Administrative
Agent”
,
“Term
Administrative Agent” or “Revolving Administrative Agent”, as applicable, shall mean such successor agent effective upon such appointment and approval, and the former Administrative
Agent’s, Term Administrative
Agent’s
or Revolving Administrative Agent’s rights, powers and duties as Administrative Agent, Term
Administrative Agent or Revolving Administrative Agent shall be terminated, without any other or further act or deed on the part of such former Administrative
Agent
or, Term Administrative Agent or Revolving
Administrative Agent or any of the parties to this Agreement or any holders of the Loans; provided that in no event shall any such successor Administrative
Agent, Term Administrative Agent or Revolving Administrative Agent be a Defaulting Lender or a Disqualified
Institution. If no successor agent has accepted appointment as Administrative Agent, Term Administrative Agent or
Revolving Administrative Agent, as applicable, by the date that is 30 days following a retiring Administrative Agent’s,
Term Administrative
Agent’s
or Revolving Administrative Agent’s notice of resignation (such date, or such earlier day as shall be agreed
by the Required Lenders (or, (x) in the case of a resignation by the Revolving Administrative Agent, the
Required Revolving Lenders or (y) in the case of a resignation by the Term Administrative Agent, the
Required Term Lenders), the
“Resignation
Effective
Date”)
, then the resigning Administrative Agent, Term Administrative Agent or Revolving Administrative Agent
may, on behalf of the Lenders (or the Term Lenders or Revolving Lenders, as applicable), appoint a successor Administrative Agent, Term Administrative Agent or Revolving Administrative Agent, as applicable, which shall be a bankfinancial
institution with an office in New York, New York, or an Affiliate of any such bank; provided that in no event shall any such successor Administrative
Agent, Term Administrative Agent or Revolving Administrative Agent, as applicable, be a Defaulting Lender or a
Disqualified Institution. Whether or not a successor has been appointed, such resignation shall become effective in accordance with
such notice on the Resignation Effective Date. After any retiring Administrative Agent’s,
Term Administrative Agent’s or Revolving Administrative Agent’s resignation as Administrative Agent, Term
Administrative Agent or Revolving Administrative Agent, as applicable, the provisions of this Section 10 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative
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Agent, Term Administrative Agent or Revolving Administrative
Agent under this Agreement and the other Loan Documents. Effective as of the Second Amendment Effective Date, Barclays Bank PLC
has resigned in its capacity as RevolvingTerm Administrative
Agent and as Administrative Agent and shall be deemed to be a retired Administrative Agent with respect thereto, with
no further obligations or duties, but the indemnification and other provisions of this Article 10 shall continue to inure to its benefit.
Effective as of the Fourth Amendment Effective Date, Barclays Bank PLC has resigned in its capacity as Administrative Agent and in
its capacity as Term Administrative Agent and shall be deemed to be a retired Administrative Agent and a retired Term Administrative Agent with respect thereto, with no further obligations or duties, but the indemnification and other provisions of
this Article 10 shall continue to inure to its benefit.
(b) If the Person serving as Administrative Agent, Term Administrative Agent or Revolving Administrative Agent is no longer a Lender or, only with respect to the Revolving Administrative Agent, Issuing Lender hereunder, the Borrower may request, and if agreed
to by the Required Lenders (or in the case of (x) the Revolving Administrative Agent, the Required
Revolving Lenders or
(y) the Term Administrative Agent, the Required Term Lenders) may, by 30 days’ prior
written notice to such Person, remove such Person as Administrative Agent, Term Administrative Agent or Revolving
Administrative Agent, as applicable and, subject to the approval by the Borrower (unless an Event of Default under Section 9(a) or Section 9(f) with respect to the Borrower shall have occurred and be continuing), appoint a successor,
whereupon such successor agent shall succeed to the rights, powers and duties of the Administrative Agent, Term Administrative
Agent or the Revolving Administrative Agent, as applicable, and the term “Administrative
Agent”
,
“Term
Administrative Agent” or “Revolving Administrative Agent”, as applicable, shall mean such successor agent effective upon such appointment and approval, and the former Administrative Agent’s, Term Administrative
Agent’s
or Revolving Administrative Agent’s rights, powers and duties as Administrative Agent, Term
Administrative Agent or Revolving Administrative Agent, as applicable, shall be terminated, without any other or further act or deed on the part of such former Administrative Agent, Term Administrative Agent or Revolving Administrative Agent, as applicable, or any of the parties to this Agreement or any
holders of the Loans; provided that in no event shall any such successor Administrative Agent, Term Administrative
Agent or Revolving Administrative Agent be a Defaulting Lender or a Disqualified Institution. If no such successor shall have been so appointed by the Required Lenders (or, in the case of (x) the Revolving Administrative Agent, the Required Revolving Lenders or
(y) the Term Administrative Agent, the Required Term Lenders) and shall have accepted such
appointment within such 30 days (the “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date and the Required Lenders (or, in the case of (x) the Revolving Administrative Agent, the Required Revolving Lenders or
(y) the Term Administrative Agent, the Required Term Lenders) may, on behalf of the
Lenders (or the Revolving Lenders, as applicable), appoint a successor Administrative Agent, Term Administrative
Agent or Revolving Administrative Agent, which shall be a bankfinancial institution with an office in New York, New York, or an Affiliate of any such bank; provided that in no event
shall any such successor Administrative Agent, Term Administrative Agent or Revolving Administrative Agent be a
Defaulting Lender or a Disqualified Institution. After any such Person’s replacement as Administrative Agent, Term
Administrative Agent or Revolving Administrative Agent hereunder, the provisions of this Section 10 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent, Term Administrative Agent or Revolving Administrative Agent under this Agreement and the other Loan Documents.
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10.10 Facilities Administrative Agents Generally. Except as expressly set forth herein, the neither of the Facilities Administrative Agents shall have any duties or responsibilities hereunder in their respective capacities as such.
10.11 Other Representatives. Each of the Lead Arrangers and the Joint Bookrunners, the Syndication AgentsAgent and the Documentation
Agents, in its several capacity as such, shall have no duties or responsibilities, and shall incur no liability, under this Agreement or any other Loan Document.
10.12 Withholding Tax. To the extent required by any applicable law, the Applicable Administrative Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding tax. Without limiting the provisions of Section 4.10, if any Governmental Authority asserts a claim that the Applicable Administrative Agent did not properly withhold tax from amounts paid to or for the account of any Lender because the appropriate form was not delivered or was not properly executed or because such Lender failed to notify the Applicable Administrative Agent of a change in circumstance which rendered the exemption from, or reduction of, withholding tax ineffective or for any other reason, or the Applicable Administrative Agent has paid over to a Governmental Authority applicable withholding tax relating to a payment to a Lender but no deduction has been made from such payment or because of a Lender’s failure to comply with the Section 11.6(c) relating to the maintenance of a Participant Register, each Lender shall indemnify the Applicable Administrative Agent, within 10 days demand therefor, fully for all amounts paid, directly or indirectly, by the Applicable Administrative Agent as Tax or otherwise, including any penalties or interest and together with all expenses (including legal expenses, allocated internal costs and out-of-pocket expenses) incurred, whether or not such amounts were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Applicable Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Applicable Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document against any amount due to the Applicable Administrative Agent under this Section 10.12. The agreements in this Section 10.12 shall survive the resignation and/or replacement of the Applicable Administrative Agent, any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all other Obligations.
10.13 Facilities Administrative Agents May File Proofs of Claim. In case of the pendency of any proceeding under the Bankruptcy Code of the United States of America, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement,
receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in
effectany Debtor Relief Law or any other judicial proceeding relative to any Loan Party, each
Facilities 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 such Facilities Administrative Agent
shall have made any demand on the Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise:
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(a) to file and prove a claim for the whole amount of the principal and interest owing and
unpaid in respect of the Loans, L/C Obligations and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders, any Issuing Lender and the Facilities
Administrative Agents (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders, such Issuing Lender and such Facilities Administrative Agent and their respective agents and counsel and all other
amounts due the Lenders, such Issuing Lender and thesuch Facilities Administrative Agent under Sections 3.5, 3.13, 4.5 and 11.5) 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 Issuing Lender to make such payments to any Facilities Administrative Agent and, in the event that such Facilities Administrative Agent shall consent to the making of such payments directly to the Lenders and the applicable Issuing Lender, to pay to such Facilities Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of such Facilities Administrative Agent and its agents and counsel, and any other amounts due such Facilities Administrative Agent under Sections 3.5, 3.13, 4.5 and 11.5.
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 Issuing Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or any Issuing Lender to authorize the Facilities Administrative Agents to vote in respect of the claim of any Lender or any Issuing Lender in any such proceeding.
10.14 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, the Term Administrative Agent, the Revolving Administrative Agent and the Other Representatives 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 for purposes of Title I of ERISA or Section 4975 of the Code) of one or more Benefit Plans in connection with the Loans, the Letters of Credit or the Commitments,
156
(ii) the prohibited 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 so as to exempt from the prohibitions of Section 406 of ERISA and Section 4975 of the Code 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 Applicable 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, 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, the Term Administrative Agent, the Revolving Administrative Agent and the Other Representatives 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, the Term Administrative Agent, the Revolving Administrative Agent or any Other Representative 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, the Term Administrative Agent or the Revolving Administrative Agent under this Agreement, any Loan Document or any documents related to hereto or thereto).
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10.15 Intercreditor Agreements. The Administrative Agent, the Term Administrative Agent and the Revolving Administrative Agent is authorized to enter into the Intercreditor Agreement and the Pari Debt Intercreditor Agreement (and any amendments, amendments and restatements, restatements or waivers of or supplements or joinders to or other modifications to, and extensions, restructuring, renewals, replacements of, such agreements) in connection with the incurrence of any Incremental Equivalent Debt, Credit Agreement Refinancing Indebtedness or any other Indebtedness permitted by the terms of this Agreement to be secured by the Collateral on a pari passu or junior priority secured basis, and the parties hereto acknowledge that each of the Intercreditor Agreement and the Pari Debt Intercreditor Agreement is (if entered into) binding upon them. Each Lender (a) understands, acknowledges and agrees that Liens may be created on the Collateral pursuant to the documentation relating to any Indebtedness incurred as permitted by this Agreement which is (in accordance with the terms hereof) to be secured thereby, on a pari passu, or junior secured basis to the Liens securing the Secured Obligations, which Liens securing any such other Indebtedness shall be subject to the terms and conditions of the Intercreditor Agreement and/or the Pari Debt Intercreditor Agreement executed and delivered as required hereby, (b) hereby agrees that it will be bound by and will take no actions contrary to the provisions of the Intercreditor Agreement and/or the Pari Debt Intercreditor Agreement (if entered into), and (c) hereby authorizes and instructs the Applicable Administrative Agent to enter into the Intercreditor Agreement and the Pari Debt Intercreditor Agreement (and any amendments, amendments and restatements, restatements or waivers of or supplements to or other modifications to, such agreements) in connection with the incurrence of any secured Indebtedness as contemplated above.
10.16 Erroneous Payment.
(a) Each Lender and each Issuing Lender (and each Participant of any of the foregoing, by its acceptance of a Participation) hereby acknowledges and agrees that if the Applicable Administrative Agent notifies such Lender or Issuing Issuer that the Applicable Administrative Agent has determined in its sole discretion that any funds (or any portion thereof) received by such Lender or Issuing Lender (any of the foregoing, a “Payment Recipient”) from the Applicable Administrative Agent (or any of its Affiliates) were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Payment Recipient) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Payment”) and demands the return of such Payment, such Payment Recipient shall promptly, but in no event later than one Business Day thereafter, return to the Applicable Administrative Agent the amount of any such Payment as to which such a demand was made. A notice of the Applicable Administrative Agent to any Payment Recipient under this Section 10.16 shall be conclusive, absent manifest error.
(b) Without limitation of clause (a) above, each Payment Recipient further acknowledges and agrees that if such Payment Recipient receives a Payment from the Applicable Administrative Agent (or any of its Affiliates) (x) that is in an amount, or on a date different from the amount and/or date specified in a notice of payment sent by the Applicable Administrative Agent (or any of its Affiliates) with respect to such Payment (a “Payment Notice”), (y) that was not preceded or accompanied by a Payment Notice, or (z) that such Payment Recipient otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, it understands and agrees at the time of receipt of such Payment that an error has been
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made (and that it is deemed to have knowledge of such error) with respect to such Payment. Each Payment Recipient agrees that, in each such case, it shall promptly notify the Applicable Administrative Agent of such occurrence and, upon demand from the Applicable Administrative Agent, it shall promptly, but in no event later than one Business Day thereafter, return to the Applicable Administrative Agent the amount of any such Payment (or portion thereof) as to which such a demand was made.
(c) Any Payment required to be returned by a Payment Recipient under this Section 10.16 shall be made in same-day funds in the currency so received, together with interest thereon in respect of each day from and including the date such Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Applicable Administrative Agent at the greater of the Federal Funds Effective Rate and a rate determined by the Applicable Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. Each Payment Recipient hereby agrees that it shall not assert and, to the fullest extent permitted by applicable law, hereby waives, any right to retain such Payment, and any claim, counterclaim, defense or right of set-off or recoupment or similar right to any demand by the Applicable Administrative Agent for the return of any Payment received, including without limitation any defense based on “discharge for value” or any similar doctrine.
(d) The Borrower and each other Subsidiary hereby agrees that (x) in the event an erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Payment (or portion thereof) for any reason, the Applicable Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Subsidiary except, in each case, to the extent such erroneous Payment is, and with respect to the amount of such erroneous Payment that is, comprised of funds of the Borrower or any other Subsidiary.
(e) Each party’s obligations, agreements and waivers under this Section 10.16 shall survive the resignation or replacement of the Applicable Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender or Issuing Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
SECTION 11. MISCELLANEOUS
11.1 Amendments and Waivers. Except as provided in Section 4.17, 4.18 and 4.19 and subject to Section 4.7(b) and Section 11.21, none of this Agreement, any other Loan Document, or any terms hereof or thereof may be amended, supplemented or modified except in accordance with the provisions of this Section 11.1. Subject to the provisions of the proviso in this Section 11.1, the Required Lenders and each Loan Party to the relevant Loan Document may, or, with the written consent of the Required Lenders, the Administrative Agent, the Term Administrative Agent, the Revolving Administrative Agent and each Loan Party to the relevant Loan Document may, from time to time, (a) enter into written amendments, supplements or modifications hereto and to the other Loan Documents for the purpose of adding any provisions to this Agreement or the other Loan Documents or changing in any manner the rights of the Lenders
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or of the Loan Parties hereunder or thereunder or (b) waive, on such terms and conditions as the Required Lenders or the Applicable Administrative Agent, as the case may be, may specify in
such instrument, any of the requirements of this Agreement or the other Loan Documents or any Default or Event of Default and its consequences; provided, however, that no such waiver and no such amendment, supplement or modification
shall: (i) forgive or reduce the principal amount or extend the final scheduled date of maturity of any Loan, reduce the stated rate of any interest or fee payable hereunder or extend the scheduled date of any payment thereof (except
(x) in connection with the waiver of applicability of any post-default increase in interest rates, which waiver shall be effective with the consent of the Majority Facility Lenders of each adversely affected Facility and not the Required
Lenders, (y) that any amendment or modification of defined terms used in the financial covenants in this Agreement shall not constitute a reduction in the rate of interest or fees for purposes of this clause (i) even if the effect of such
amendment would be to reduce the rate of interest on any Loan or any L/C Obligations or to reduce any fee payable hereunder, and (z) any reduction of the amount of, or any extension of the payment date for, the mandatory prepayments required
under Section 4.2 which shall only require the approval of the Majority Facility Lenders of each Facility adversely affected thereby and not the Required Lenders), or increase the amount or extend the expiration date of any Lender’s
Commitment, in each case, without the written consent of each Lender directly affected thereby (but not, for the avoidance of doubt, the consent of the Required Lenders); (ii) eliminate or reduce the voting rights of any Lender under this
Section 11.1 without the written consent of such Lender; (iii) reduce any percentage specified in the definition of Required Lenders, consent to the assignment or transfer by the Borrower of any of its rights and obligations under this
Agreement and the other Loan Documents or, except as set forth in Section 11.14, release all or substantially all of the Collateral or release all or substantially all of the Subsidiary Guarantors from their obligations under the Guarantee and
Collateral Agreement, in each case without the written consent of all Lenders; provided, further that, any amendment to Section 11.14 to permit the release of all or substantially all of the Collateral or release all or
substantially all of the value of the guarantees of the Subsidiary Guarantors from their obligations under the Guarantee and Collateral Agreement shall also require the written consent of all
Lenders; (iv) extend the scheduled date or reduce the amount of any amortization payment in respect of any Term Loan, in each case, without the written consent of each Lender directly affected thereby; (v) amend, modify or waive any
condition precedent to any extension of credit under the Revolving Facility set forth in Section 6.2 without the written consent of the Majority Facility Lenders under the Revolving Facility; (vi) amend, modify or waive any provision of
Section 4.8 without the written consent of the Majority Facility Lenders under each Facility affected thereby, except that the additional written consent of each Lender directly and adversely affected thereby shall be required in the case of
Section 4.8(a), 4.8(c) and the first sentence of Section 4.8(b); (vii) reduce the percentage specified in the definition of Majority Facility Lenders with respect to any Facility without the written consent of all Lenders under such
Facility; (viii) amend, modify or waive any provision of Section 10 without the written consent of the Administrative Agent,
Term Administrative Agent, Revolving Administrative Agent or Other Representative adversely affected thereby;
(ix) amend, modify or waive any provision of Section 3.3 or 3.4 without the written consent of the Swingline Lender; (x) amend, modify or waive any provision of Sections 3.7 to 3.14 without the written consent of each Issuing Lender;
(xi)
[reserved]other
than in connection with any
debtor-in-possession financing,
(x) subordinate, or have the effect of subordinating, the Obligations to any other Indebtedness, or
(y) subordinate, or have the effect of subordinating, the Liens securing the Obligations to Liens
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securing any other Indebtedness, in each case, without the written consent of each Lender directly and adversely affected thereby; (xii) any terms of Section 4.16 without the consent of each Lender (other than any Defaulting Lender); (xiii) amend, modify or waive any of the terms and provisions (and related definitions) of Section 8.1 (even if the effect of such amendment would be to reduce the rate of interest on any Loan or L/C Obligations or to reduce any fee payable hereunder) or any of the terms and provisions of the proviso set forth in clause (c) of Section 9, without the written consent of the Majority Facility Lenders under the Revolving Facility; provided, further, that, notwithstanding anything else in this Agreement to the contrary, any such amendment, waiver or other modification pursuant to this clause (xiii) shall be effective for all purposes of this Agreement with the written consent of only the Majority Facility Lenders under the Revolving Facility (or the Revolving Administrative Agent with the prior written consent thereof) and the Borrower; (xiv) modify or extend the maturity date of any Letter of Credit to a date that is later than the maturity date applicable to the Revolving Commitments, without the consent of each Revolving Lender; or (xv) amend, modify or waive any provision of Section 11.7 hereof or Section 6.5 of the Guarantee and Collateral Agreement, in each case, without the written consent of each Lender directly and adversely affected thereby. Any such waiver and any such amendment, supplement or modification shall apply equally to each of the Lenders and shall be binding upon the Loan Parties, the Lenders, the Administrative Agent, the Term Administrative Agent, the Revolving Administrative Agent and all future holders of the Loans. In the case of any waiver, the Loan Parties, the Lenders, the Administrative Agent, the Term Administrative Agent and the Revolving Administrative Agent shall be restored to their former position and rights hereunder and under the other Loan Documents, and any Default or Event of Default waived shall be deemed to be cured and not continuing; but no such waiver shall extend to any subsequent or other Default or Event of Default, or impair any right consequent thereon.
Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) solely with the written consent of the Required Lenders, the Applicable Administrative Agent and the Borrower (a) to add one or more additional credit facilities to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and Revolving Extensions of Credit and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders and Majority Facility Lenders.
Notwithstanding anything to the contrary herein the Administrative Agent, the Term Administrative Agent and the Revolving Administrative Agent may, with the consent of the Borrower only, amend, modify or supplement this Agreement or any of the other Loan Documents to cure any technical ambiguity, omission, mistake, defect or inconsistency.
11.2 Notices. (a) All notices, requests and demands to or upon the respective parties hereto to be effective shall be in writing (including by telecopy or electronic transmission (including email)), and, unless otherwise expressly provided herein, shall be deemed to have been duly given or made when delivered, or three Business Days after being deposited in the mail, postage prepaid, or, in the case of telecopy notice, when received, addressed as follows in the case of the Borrower, Administrative Agent, the Term Administrative Agent and the Revolving Administrative Agent and addressed as set forth in an administrative questionnaire delivered to the
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Applicable Administrative Agent in the case of the Lenders, or to such other address as may be hereafter notified by the respective parties hereto:
The Borrower:
Advanced Drainage Systems, Inc.
4640 Trueman Boulevard
Hilliard, Ohio 43026
Attention: Scott Cottrill
Telecopy: (614) 658-0052
Email: [email protected]
with copies, which shall not constitute notice, to each of:
Advanced Drainage Systems, Inc.
4640 Trueman Boulevard
Hilliard, Ohio 43026
Attention: Dean Bruno
Telecopy: (614) 658-0286
Email: [email protected]
and
Squire Patton Boggs (US) LLP
2000 Huntington Center
41 South High Street
Columbus, Ohio 43215
Attention: Matthew
BaileyPalmer
Telecopy: (614) 365-2499
Email:
[email protected][email protected]
The Term Administrative Agent:
For payments, advances, rates, lender requests
Barclays
Bank PLC
745 Seventh
Avenueof America, N.A.
900 W. Trade St.
Mail Code: NC1-026-06-04
Charlotte, NC 28255
Attention: Tierra Hinton
Telephone: 980-386-9521
Electronic Mail: [email protected]
For financials, communications
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Bank of America, N.A. Agency Management
540 W. Madison St
Mail Code: IL4-540-22-29
Chicago, Illinois 60601
Attention: Denise Jones
Telephone: 312.828.1846
Telecopier: 877.206.8413
Electronic Mail: [email protected]
The Revolving Administrative Agent:
PNC Bank, National Association
155 Broad Street, 7th Floor
Columbus, OH 43215
New York, NY
10019
Attention: Peter Oberrender Anthony Irwin, Senior Vice
President
Telephone: +1 212 526 6687
(614) 463-8844
Facsimile: +1
212 526
5115(614) 463-6770
Email:
[email protected]
[email protected]
With a copy to:
PNC Agency Services, PNC Bank, National Association
500 First Avenue
Pittsburgh, PA 15219
Attention: Agency Services, Brian Hays
Telephone: +1 (412) 762-0915
Telecopy: +1 (412) 762-8672
The
Revolving Administrative Agent:
PNC Bank, National Association
155 Broad Street, 7th Floor
Columbus, OH 43215
Attention: Anthony Irwin, Senior Vice President
Telephone: +1 (614) 463-8844
Facsimile: +1 (614) 463-6770
Email: [email protected]
With a copy to:
PNC Agency Services, PNC Bank, National Association
500 First Avenue
Pittsburgh, PA 15219
Attention: Agency Services, Brian Hays
Telephone: +1 (412) 762-0915
Telecopy: +1 (412) 762-8672
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(b) No notice, request or demand to or upon the Administrative Agent, the Term Administrative Agent, the Revolving Administrative Agent, any Issuing Lender, the Lenders, or the Borrower shall be effective until received. The Borrower shall be conclusively deemed to have received any notice, request or demand if such notice, request or demand is sent by courier service and delivery thereof is confirmed by the courier, if it is sent by fax or electronic transmission and receipt thereof is confirmed orally, if it is sent by certified mail or if it is served by any manner of service of process permitted by law. Notices and other communications to the Lenders hereunder may be delivered or furnished by electronic communications pursuant to procedures approved by the Applicable Administrative Agent. Approval of such procedures may be limited to particular notices or communications;
(c) (i) Notices and other communications to the Lenders and the Issuing Lenders hereunder may be delivered or furnished by electronic communication (including email and Internet or intranet websites) pursuant to procedures approved by the Applicable Administrative Agent; provided, that the foregoing shall not apply to notices to any Lender or any Issuing Lender pursuant to Sections 2 and 3 if such Lender or such Issuing Lender, as applicable, has notified the Applicable Administrative Agent that it is incapable of receiving notices under such Article by electronic communication. The Applicable Administrative Agent or the Borrower may, in their discretion, agree to accept notices and other communications to each of them hereunder by electronic communications pursuant to procedures approved by it; provided, that approval of such procedures may be limited to particular notices or communications.
(ii) Unless the Applicable Administrative Agent otherwise prescribes, (a) 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); provided, that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient, and (b) 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 (a) of notification that such notice or communication is available and identifying the website address therefore.
11.3 No Waiver; Cumulative Remedies. No failure to exercise and no delay in exercising, on the part of the Administrative Agent, the Term Administrative Agent, the Revolving Loan Administrative Agent or any Lender, any right, remedy, power or privilege hereunder or under the other Loan Documents 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 are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.
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11.4 Survival of Representations and Warranties. All representations and warranties made hereunder, in the other Loan Documents and in any document, certificate or statement delivered pursuant hereto or in connection herewith shall survive the execution and delivery of this Agreement and the making of the Loans and other extensions of credit hereunder.
11.5 Payment of Expenses; Indemnity; Damage Waiver.
(a) . The Borrower agrees (ai) to pay or reimburse each Lender, each Issuing Lender, each Other Representative, the
Administrative Agent, the Term Administrative Agent and the
Revolving Administrative Agent for all its reasonable and documented out-of-pocket costs and expenses incurred in connection with the syndication (including syndication expenses and travel expenses) of the Facilities and the development, preparation
and execution of, and any amendment, supplement or modification to this Agreement and the other Loan Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the transactions
contemplated hereby and thereby, including the reasonable fees and disbursements of one primary counsel to the Lenders, the Issuing Lenders, the Other Representatives, the Administrative Agent, the Term Administrative Agent, the Revolving Administrative Agent and, to the extent
reasonably determined by the Facilities Administrative AgentAgents to be necessary, one local counsel in each applicable jurisdiction (exclusive of any reasonably necessary special counsel) and, in the case of an actual or reasonably perceived conflict of interest, one
additional counsel in each applicable jurisdiction per affected party and filing and recording fees and expenses, with statements with respect to the foregoing to be submitted to the Borrower 3 Business Days prior to the Closing Date (in the case of
amounts to be paid on the Closing Date) and from time to time thereafter on a quarterly basis or such other periodic basis as such Agent shall deem appropriate,
(bii) to pay or reimburse each Lender, each Issuing Lender, each Other Representative, the
Administrative Agent, the Term Administrative Agent and the
Revolving Administrative Agent for all its documented and out-of-pocket costs and expenses incurred in connection with the enforcement or preservation of any rights under this Agreement, the other Loan Documents and any such other documents, or 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 and including the fees and
disbursements of one primary counsel to the Lenders, the Issuing Lenders, the Other Representatives, the Administrative Agent, the
Term Administrative Agent, the Revolving Administrative Agent and,
to the extent reasonably determined by the Administrative Agent, the Term Administrative Agent or the Revolving Administrative Agent to be necessary, one local counsel in each applicable jurisdiction (exclusive of any reasonably necessary special counsel) and, in the case of an actual or reasonably
perceived conflict of interest, one additional counsel in each applicable jurisdiction per affected party,
and
(ciii) to pay, indemnify, and hold each Lender, each Issuing Lender, each Other Representative, the Administrative
Agent, the Term Administrative Agent and the Revolving
Administrative Agent harmless from, any and all recording and filing fees that may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by,
or any amendment, supplement or modification of, or any waiver or consent under or in respect of, this Agreement, the other Loan Documents and any such other documents, and
.
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(b)
(d) to
pay,The Borrower shall indemnify, and hold each Lender, each Issuing Lender, each Other Representative, the Administrative Agent, the Term Administrative Agent, the Revolving Administrative Agent and each of their and their
affiliates’ respective officers, directors, employees, attorneys, affiliates, agents, members, partners and advisors (each, including each Lender, the Administrative
Agent and the Revolving Administrative Agent, such Person being
called an “Indemnitee”) against, and hold each Indemnitee harmless from (and against any and all
othershall reimburse each Indemnitee as the same are incurred),
any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever with respect to the syndication of the Facilities and the execution,
delivery, enforcement, performance and administration of this Agreement, the other Loan Documents and any such other documents, including any of the foregoing relating to the use of proceeds of the Loans or any related transaction or the violation
of, noncompliance with or liability under, any Environmental Law or related to any Materials of Environmental Concern applicable to the operations of any Group Member or any of the Properties or the unauthorized use by Persons of information or
other materials sent through electronic, telecommunications or other information transmission systems that are intercepted by such Persons or any claim, litigation, investigation or proceeding relating to any of the foregoing, or preparation of a
defense in connection therewith, regardless of whether such claim, litigation, investigation or proceeding is brought by the Borrower, the Borrower’s equity holders or creditors, an Indemnitee or any other person or entity, whether any
Indemnitee is a party thereto, including in each case the reasonable and documented fees and disbursements of one primary counsel to the Lenders, the Issuing Lenders, the Other Representatives, the Administrative Agent, the Term Administrative Agent, the Revolving Administrative Agent and Indemnitees and, to the extent reasonably determined by the
Administrative Agent, the Term Administrative Agent or the Revolving Administrative Agent, as applicable, to be
necessary, one local counsel in each applicable jurisdiction (exclusive of any reasonably necessary special counsel) and, in the case of an actual or reasonably perceived conflict of interest, one additional counsel in each applicable jurisdiction
per affected party (all the foregoing in this clause (db), collectively, the “Indemnified Liabilities”); provided, that the Borrower shall have no
obligation hereunder to any Indemnitee with respect to Indemnified Liabilities to the extent such Indemnified Liabilities are found by a final, non-appealable judgment of a court of competent jurisdiction to
have resulted primarily from (x) the willful misconduct, bad faith or gross negligence of such Indemnitee or its Related Persons, (y) a material breach by such Indemnitee of its express and material contractual obligations under this
Agreement or the Loan Documents pursuant to a claim made by the Borrower, or (z) disputes between and among the Indemnitees (other than disputes involving the Administrative Agent, the
Term Administrative Agent, the Revolving Administrative Agent or the Other Representatives in their respective
capacities as such) other than any dispute related to any act or omission by the Borrower or any of its Subsidiaries.
(c) All amounts due under this Section 11.5 shall be payable not later than 10 days after written demand therefor. Statements payable by the Borrower pursuant to this Section 11.5 shall be submitted pursuant to the notice information for the Borrower set forth in Section 11.2, or to such other Person or address as may be hereafter designated by the Borrower in a written notice to the Facilities Administrative Agents.
(d) To
the fullest extent permitted by applicable law, none of the
Borrower, or the Loan Parties and the Indemnitees shall assert, and each of the
Borrower, the
and Loan Parties and the Indemnitees hereby waives, any claim against any
IndemniteeFacilities Administrative
Agent, any Other Representatives, any Issuing Lender and any Lender, and any Related person of any of the foregoing Persons (each such Person
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being called a “Lender-Related
Person”)
, 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 the foregoing will not limit the Borrower’s indemnity
obligations set forth in
Section 11.5(b) above. No Indemnitee referred to in clause
(d)
aboveLender-Related Person shall be liable for
any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan
Documents or the transactions contemplated hereby or thereby other than for direct or actual damages determined in a final, non-appealable judgment by a court of competent jurisdiction to have resulted
primarily from the gross negligence, bad faith or willful misconduct of such Indemnitee.
(e) The agreements in this Section 11.5 shall survive repayment of the Loans and all other amounts payable hereunder. This Section 11.5 shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, or other costs and expenses arising from any non-Tax claim.
11.6 Successors and Assigns; Participations and Assignments. (a) 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 (including any Affiliate of any Issuing Lender that issues any Letter of Credit), except that (i) the Borrower may not assign or otherwise transfer any of its respective rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by the Borrower without such consent shall be null and void), and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 11.6.
(b) (i) Subject to the conditions set forth in Section 11.6(c) below, any Lender may assign to one or more assignees (each, an “Assignee”) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitments and the Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld or delayed) of:
(A) the Borrower; provided, that no consent of the Borrower shall be required (1) for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund or (2) for an assignment to any Person if an Event of Default under Section 9(a) or Section 9(f) has occurred and is continuing; provided, further, that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Applicable Administrative Agent within ten (10) Business Days after having received written notice thereof;
(B) the Applicable Administrative Agent; provided, that no consent of the Applicable Administrative Agent shall be required for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, except in the case of an assignment of a Revolving Commitment to an Assignee that does not already have a Revolving Commitment; and
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(C) each Issuing Lender and the Swingline Lender, in case of an assignment of a Revolving Commitment.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund or an assignment of the entire remaining amount of the assigning Lender’s Commitments or Loans under any Facility, the amount of the Commitments or 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 Applicable Administrative Agent) shall not be less than $5,000,000 (or, in the case of any of the Term Loans, $500,000) unless each of the Borrower and the Applicable Administrative Agent otherwise consent; provided, that (1) no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Affiliates or Approved Funds, if any;
(B) the parties to each assignment shall execute and deliver to the Applicable Administrative Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500; provided that such processing and recordation fee may be waived by the Applicable Administrative Agent in its sole discretion;
(C) the Assignee, if it shall not be a Lender, shall deliver to the Applicable Administrative Agent an administrative questionnaire;
(D) the Assignee, if it shall not be a Lender, shall deliver to the Borrower and the Applicable Administrative Agent the forms and documentation required pursuant to Section 4.10 (e), (f) and (k);
(E) no such assignment shall be made to an assignee that is a Defaulting Lender or any subsidiary of a Defaulting Lender at the time of such assignment and any such purported assignment thereto shall be deemed null and void and no such assignment shall be made to a Disqualified Institution, as further set forth in Section 11.6(f);
(F) notwithstanding anything to the contrary herein, no such assignment shall be made to any Affiliated Lender unless made in compliance with the additional terms and conditions set forth in Section 11.6(g); and
(G) notwithstanding anything to the contrary herein, no such assignment shall be made 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).
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(iii) Subject to acceptance and recording thereof pursuant to Section 11.6(b)(iv) below, from and after the effective date specified in each Assignment and Assumption the Assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 4.9, 4.10, 4.11 and 11.5). Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 11.6 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, and subject to the limitations of Section 11.6(c).
(iv) Each Facilities Administrative Agent, acting for this purpose as a non-fiduciary agent of the Borrower, shall maintain at one of its offices a copy of each Assignment and Assumption delivered to it and a register for the recordation of (as to the applicable Facilities) the names and addresses of the Lenders, and the Commitments of, and principal amount and stated interest of the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from time to time (each, a “Register” and, collectively, the “Registers”). The entries in the Registers shall be conclusive absent manifest error, and the Borrower, the Administrative Agent, the Term Administrative Agent, the Revolving Administrative Agent, each Issuing Lender and the Lenders shall treat each Person whose name is recorded in the Registers pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Registers shall be available for inspection by the Borrower, the Administrative Agent, the Term Administrative Agent, the Revolving Administrative Agent, each Issuing Lender and any Lender (solely with respect to any entry relating to such Lender’s Commitment or Loans), at any reasonable time and from time to time upon reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and Assumption executed by an assigning Lender and an Assignee, the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder), and any written consent to such assignment required by Section 11.6(b), the Applicable Administrative Agent shall accept such Assignment and Assumption and record the information contained therein in the Register. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph.
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(c) (i) Any Lender may, without the consent of the Borrower, the Administrative Agent, the Term Administrative Agent, the Revolving Administrative Agent or any other Person, sell participations to one or more banks or other entities (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 a Disqualified Institution or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (a “Participant”) in all or a portion of such Lender’s rights and obligations under this Agreement (including all or a portion of its Commitments and the Loans owing to it); provided, that (A) such Lender’s obligations under this Agreement shall remain unchanged, (B) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and (C) the Borrower, the Administrative Agent, the Term Administrative Agent, the Revolving Administrative Agent, each Issuing Lender and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided, that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver that (1) requires the consent of each Lender directly affected thereby pursuant to the proviso to the second sentence of Section 11.1 and (2) directly affects such Participant. Subject to Section 11.6(c)(ii), the Borrower agrees that each Participant shall be entitled to the benefits of Sections 4.9, 4.10 or 4.11 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 11.6(b); provided, that such Participant shall be subject to the provisions of Section 4.13 as if it were a Lender and had acquired its interest by assignment pursuant to Section 11.6(b). To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 11.7(b) as though it were a Lender; provided, that such Participant shall be subject to Section 11.7(a) as though it were a Lender.
(ii) A Participant shall not be entitled to receive any greater payment under Section 4.9 or 4.10 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant (except to the extent such entitlement to receive a greater payment results from change in a Requirement of Law that occurs after the Participant acquired the applicable participation). Any Participant that is a Non-U.S. Lender shall not be entitled to the benefits of Section 4.10 unless such Participant complies with Section 4.10(e) and (f). 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 4.13 with respect to any Participant.
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(iii) Each Lender that sells a participation shall, acting for this purpose as a non-fiduciary 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 rights or obligations) held by it (the “Participant Register”). 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 Loan (or other right or obligation) hereunder as the owner thereof for all purposes of this Agreement notwithstanding any notice to the contrary. No Lender shall have any obligation to disclose any portion of its Participant Register to any Person except to the extent such disclosure is necessary to establish that the Loans (or other rights or obligations) hereunder are in registered form under Section 5f.103-1(c) or Proposed Section 1.163-5(b) (or any successor sections) of the United States Treasury Regulations. For the avoidance of doubt, the Administrative Agent, the Term Administrative Agent and the Revolving Administrative Agent (in each case, its capacity as such) shall have no responsibility for maintaining a Participant Register.
(d) Any Lender may at any time pledge or assign a security interest in all or any portion of its rights and/or obligations under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or central bank having jurisdiction over it, and this Section 11.6 shall not apply to any such pledge or assignment of a security interest; provided, that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or Assignee for such Lender as a party hereto.
(e) The Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in Section 11.6(d).
(f) (i) No assignment or participation shall be made to, and no Incremental Commitment shall be provided by, any Person that was a Disqualified Institution as of the date (the “Trade Date”) on which the assigning Lender entered into a binding agreement to sell and assign all or a portion of its rights and obligations under this Agreement to such Person or the date of the Incremental Commitment Agreement, as the case may be (unless the Borrower has consented to such assignment or Incremental Commitment in writing in its sole and absolute discretion, in which case such Person will not be considered a Disqualified Institution for the purpose of such assignment, participation or Incremental Commitment). For the avoidance of doubt, with respect to any assignee or Incremental Lender that becomes a Disqualified Institution after the applicable Trade Date (including as a result of the delivery of a notice pursuant to, and/or the expiration of the notice period referred to in, the definition of “Disqualified Institution”), (x) such assignee or Incremental Lender shall not retroactively be disqualified from becoming a Lender and (y) the execution by the Borrower of an Assignment and Assumption or joinder with respect to such assignee will not by itself result in such assignee no longer being considered a Disqualified Institution. Any assignment or Incremental Commitment in violation of this clause (f)(i) shall not be void, but the other provisions of this clause (f) shall apply.
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(ii) If any assignment or participation is made to, or any Incremental Commitment is provided by, any Disqualified Institution without the Borrower’s prior written consent in violation of clause (i) above, or if any Person becomes a Disqualified Institution after the applicable Trade Date, the Borrower may, at its sole expense and effort, upon notice to the applicable Disqualified Institution and the Applicable Administrative Agent, (A) terminate the Commitment of such Disqualified Institution and repay all obligations of the Borrower owing to such Disqualified Institution in connection with such Commitment and/or (B) require such Disqualified Institution to assign, without recourse (in accordance with and subject to the restrictions contained in this Section), all of its interest, rights and obligations under this Agreement to one or more Eligible Assignees at the lesser of (x) the principal amount thereof and (y) the amount that such Disqualified Institution paid to acquire such interests, rights and obligations, in each case plus accrued interest, accrued fees and all other amounts (other than principal amounts) payable to it hereunder.
(iii) Notwithstanding anything to the contrary contained in this Agreement, Disqualified Institutions (A) will not (x) have the right to receive information, reports or other materials provided to Lenders by the Borrower, the Facilities Administrative Agents or any other Lender, (y) attend or participate in meetings attended by the Lenders and any Facilities Administrative Agent, or (z) access any electronic site established for the Lenders or confidential communications from counsel to or financial advisors of the Applicable Administrative Agent or the Lenders and (B) (x) for purposes of any consent to any amendment, waiver or modification of, or any action under, and for the purpose of any direction to the Applicable Administrative Agent or any Lender to undertake any action (or refrain from taking any action) under this Agreement or any other Loan Document, each Disqualified Institution will be deemed to have consented in the same proportion as the Lenders that are not Disqualified Institutions consented to such matter, and (y) for purposes of voting on any Debtor Relief Plan, each Disqualified Institution party hereto hereby agrees (1) not to vote on such Debtor Relief Plan, (2) if such Disqualified Institution does vote on such Debtor Relief Plan notwithstanding the restriction in the foregoing clause (1), such vote will be deemed not to be in good faith and shall be “designated” pursuant to Section 1126(e) of the Bankruptcy Code (or any similar provision in any other Debtor Relief Laws), and such vote shall not be counted in determining whether the applicable class has accepted or rejected such Debtor Relief Plan in accordance with Section 1126(c) of the Bankruptcy Code (or any similar provision in any other Debtor Relief Laws) and (3) not to contest any request by any party for a determination by the Bankruptcy Court (or other applicable court of competent jurisdiction) effectuating the foregoing clause (2).
(iv) Each Facilities Administrative Agent shall have the right, and the Borrower hereby expressly authorizes the Facilities Administrative Agents, to (A) post the list of Disqualified Institutions provided by the Borrower and any updates thereto from time to time (collectively, the “DQ List”) on the Platform, including that portion of the Platform that is designated for public- side Lenders and/or (B) provide the DQ List to each Lender requesting the same.
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(g) Subject to the other provisions of this Section 11.6 and Section 11.19, any Affiliated Lender may make Loans or Commitments or purchase an assignment of outstanding Loans or Commitments (including Incremental Loans and Incremental Commitments) from one or more Lenders and any such purchases of Loans and/or Commitments may be made through (a) open market purchases on a non-pro rata basis and/or (b) Dutch auction procedures open to all applicable Lenders on a pro rata basis in accordance with customary procedures with procedures determined by such Affiliated Lender in its sole discretion, in each case, on the following basis and subject to the following terms and conditions:
(i) any such purchase of Loans (other than any commitment to provide Incremental Loans or any Incremental Commitments) shall be consummated as an assignment otherwise in accordance with the provisions of this Section 11.6 and pursuant to an Assignment and Assumption (it being understood and agreed that any such purchase of Loans that does not comply with this Section 11.6 and Section 11.19 shall not be effective as an assignment hereunder);
(ii) [reserved];
(iii) the aggregate principal amount of the Term Loans and Commitments (including Incremental Term Loans and Incremental Term Loan Commitments) held by all Affiliated Lenders shall not exceed 25% of the total principal amount outstanding under the Term Facilities and any Incremental Term Loans at the time of such purported assignment;
(iv) no Affiliated Lender may purchase Revolving Commitments or Incremental Revolving Commitments hereunder and no Affiliated Lender may purchase any Revolving Loans or any Incremental Revolving Loans from any Lender, except from a Defaulting Lender (in which case, such Affiliated Lender shall purchase such Defaulting Lender’s Loans and shall purchase all such Loans and other amounts owing to the replaced Lender on or prior to the date of replacement and assume all obligations of the replaced Lender under the Loan Documents in connection with the purchased Revolving Loans in accordance with this Section 11.6 (except that the Borrower shall pay the registration and processing fee referred to therein and for the avoidance of doubt such purchase shall not include its Commitments));
(v) in the case of a purchase of Loans by the Borrower or any of its Subsidiaries, no proceeds of the Revolving Facility and no proceeds of any Incremental Loans drawn under any Incremental Revolving Commitments shall be used for any purchases hereunder;
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(vi) any Loans purchased by the Borrower or any of its Subsidiaries shall be automatically and permanently cancelled upon the effectiveness of such assignment and will thereafter no longer be outstanding for any purpose hereunder;
(vii) no Affiliated Lender may purchase any loans while such Affiliated Lender is in the possession of material non-public information with respect to the Borrower or its subsidiaries that is material to the assigning lender’s decision to assign any loans and that has not been disclosed to the Lenders (except to the extent that any Lender expressly waives its right to receive such information);
(viii) notwithstanding anything to the contrary in this Agreement, the purchase of Loans made by an Affiliated Lender under this Section 11.6 shall not constitute a voluntary or mandatory prepayment of the Loans; and
(ix) in the case of a purchase by any Affiliated Lender, the assigning Lender and such assignee shall execute and deliver to the Applicable Administrative Agent an Affiliated Lender Assignment and Assumption in lieu of an Assignment and Assumption.
11.7 Adjustments; Set-off. (a) Except as expressly provided in Section 11.6 and otherwise to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the Lenders under a particular Facility, if any Lender (a “Benefited Lender”) shall, at any time after the Loans and other amounts payable hereunder shall immediately become due and payable pursuant to Section 9, receive any payment of all or part of the Obligations owing to it, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in Section 9(f), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the Obligations owing to such other Lender, such Benefited Lender shall purchase for cash from the other Lenders a participating interest in such portion of the Obligations owing to each such other Lender, or shall provide such other Lenders with the benefits of any such collateral, as shall be necessary to cause such Benefited Lender to share the excess payment or benefits of such collateral ratably with each of the Lenders; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right upon the occurrence and during the continuance of an Event of Default, without prior notice to the Borrower, any such notice being expressly waived by the Borrower to the extent permitted by applicable law, upon any amount becoming due and payable by the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), to set off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch or agency thereof to or for the credit or the account of the Borrower, as the case may be. Each Lender agrees promptly to notify the Borrower and the Applicable Administrative Agent after any such setoff and application made by such Lender; provided, that the failure to give such notice shall not affect the validity of such setoff and application.
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11.8 Counterparts. This Agreement may be executed by one or more of the parties to
this Agreement on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed signature page of this Agreement by facsimile or electronic
transmission shall be effective as delivery of a manually executed counterpart hereof. A set of the copies of this Agreement signed by all the parties shall be lodged with the Borrower and the Facilities Administrative
AgentAgents.
11.9 Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
11.10 Integration. This Agreement and the other Loan Documents represent the entire agreement of the Borrower, the Administrative Agent, the Term Administrative Agent, the Revolving Administrative Agent and the Lenders with respect to the subject matter hereof and thereof. This Agreement supersedes all prior commitments and undertakings of any or all of the Administrative Agent, the Term Administrative Agent, the Revolving Administrative Agent and Lenders relating to the financing contemplated hereby. There are no promises, undertakings, representations or warranties by the Administrative Agent, the Term Administrative Agent. The Revolving Administrative Agent or any Lender relative to subject matter hereof not expressly set forth or referred to herein or in the other Loan Documents.
11.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
11.12 Submission To Jurisdiction; Waivers. Each of the Borrower, the Administrative Agent, the Term Administrative Agent, the Revolving Administrative Agent and the Lenders hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or proceeding relating to this Agreement and the other Loan Documents to which it is a party, or for recognition and enforcement of any judgment in respect thereof, to the exclusive jurisdiction of the courts of the State of New York, the courts of the United States for the Southern District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in such courts and waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same;
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(c) agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to the Borrower, as the case may be at its address set forth in Section 11.2 or at such other address of which the Applicable Administrative Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect service of process in any other manner permitted by law or shall limit the right to sue in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it may have to claim or recover in any legal action or proceeding referred to in this Section any special, exemplary, punitive or consequential damages.
11.13 Acknowledgments. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and delivery of this Agreement and the other Loan Documents;
(b) none of the Administrative Agent, the
Term Administrative Agent, the Revolving Administrative agentAgent
, any Other Representative or Lender has any fiduciary relationship with or duty to the Borrower arising out of or in connection with this Agreement or any of the other Loan Documents, and the relationship between the Administrative
Agent, the Term Administrative Agent, the Revolving Administrative Agent and Lenders, on one hand, and the Borrower,
on the other hand, in connection herewith or therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan Documents or otherwise exists by virtue of the transactions contemplated hereby among the Lenders or among the Borrower and the Lenders.
11.14 Releases of Guarantees and Liens. (a) Notwithstanding anything to the contrary contained herein or in any other Loan Document, the Administrative Agent is hereby irrevocably authorized by each Lender and other Secured Parties (without requirement of notice to or consent of any Lender or other Secured Party except as expressly required by Section 11.1) to take any action requested by the Borrower having the effect of releasing any Collateral or guarantee obligations (i) to the extent necessary to permit consummation of any transaction not prohibited by any Loan Document or that has been consented to in accordance with Section 11.1 or (ii) under the circumstances described in Section 11.14(b).
(b) At such time as the Loans, the Reimbursement Obligations and the other obligations under the Loan Documents (other than contingent surviving indemnity obligations in respect of which no claim or demand has been made and obligations under or in respect of Hedge Agreements or Specified Cash Management Arrangements) shall have been paid in full, the Commitments have been terminated and no Letters of Credit shall be outstanding (other
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than Letters of Credit which have been Cash Collateralized or as to which other arrangements satisfactory to the applicable Issuing Lender shall have been made), the Collateral shall automatically be released from the Liens created by the Security Documents, and the Security Documents and all obligations (other than those expressly stated to survive such termination) of the Administrative Agent and each Loan Party under the Security Documents shall automatically terminate, all without delivery of any instrument or performance of any act by any Person. Additionally, the Administrative Agent, the Term Administrative Agent and the Revolving Administrative Agent shall deliver such other documentation reasonably requested by the Borrower to evidence the termination of this Agreement and the other Loan Documents and/or the termination of the Liens on the Collateral, in favor of the Administrative Agent for the benefit of the Secured Parties, all in form reasonably satisfactory to the Administrative Agent, the Term Administrative Agent, the Revolving Administrative Agent and the Borrower. Any such documentation shall be made without recourse, representation or warranty. The Borrower shall pay all costs and expenses (including, but not limited to, reasonable attorney’s fees), that the Administrative Agent, the Term Administrative Agent or the Revolving Administrative agent incurs in preparing and delivering the foregoing documents (or reviewing forms of such documents prepared by the Borrower or its counsel).
11.15 Confidentiality. The Administrative Agent, the Term Administrative Agent, the Revolving Administrative Agent, each Other Representative and Lender agrees to keep confidential all non-public information provided to it by any Loan Party pursuant to or in connection with this Agreement; provided, that nothing herein shall prevent the Administrative Agent, the Term Administrative Agent, the Revolving Administrative Agent, Other Representative or any Lender from disclosing any such information (a) any Lender or any Affiliate of any Lender (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), (b) (i) to any actual or prospective Transferee, (ii) any direct or indirect actual or prospective counterparty (or any professional advisor to such counterparty) to any Hedge Agreement or any other swap, derivative or securitization transaction relating to the Borrower and its Obligations or (iii) to any credit insurance provider relating to the Borrower and its Obligations, in each case, if such person is required to maintain confidentiality on terms at least as restrictive as those contained in this Section 11.15, (c) to its employees, directors, agents, members, partners, attorneys, accountants and other professional advisors or those of any of its affiliates if such person is required to maintain confidentiality, (d) upon the request or demand of any Governmental Authority, (e) in response to any order of any court or other Governmental Authority, or as may otherwise be required pursuant to any Requirement of Law, or if requested or required to do so in connection with any litigation or similar proceeding; provided, that the Administrative Agent, the Term Administrative Agent, the Revolving Administrative Agent, the Other Representative or Lender, unless prohibited by any Requirement of Law, shall use reasonable efforts to notify the Borrower in advance of any disclosure pursuant to this clause (e) but only to the extent reasonably practicable under the circumstances and on the understanding that none of the Administrative Agent, the Term Administrative Agent, the Revolving Administrative Agent, Other Representative or Lender shall incur any liability for failure to give such notice, (f) that has been publicly disclosed, (g) to the National Association of Insurance Commissioners or any similar organization or any nationally recognized rating agency that requires access to information about a Lender’s investment portfolio in connection with ratings issued with respect to such Lender, (h) in connection with the exercise of any remedy hereunder or under any other Loan Document,
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(i) to any rating agency when required by it; provided, that, prior to any disclosure, such rating agency is required to maintain confidentiality or (j) with the consent of the Borrower. In addition, the Administrative Agent, the Term Administrative Agent, the Revolving Administrative Agent and each Lender may disclose the existence of this Agreement and the information about this Agreement to market data collectors, similar services providers to the lending industry, and service providers to the Administrative Agent, the Term Administrative Agent, the Revolving Administrative Agent and the Lenders in connection with the administration and management of this Agreement and the other Loan Documents. For the avoidance of doubt, nothing in this Section 11.15 shall prohibit any Person from voluntarily communicating, disclosing or providing information within the scope of the confidentiality provisions of this Section 11.15 regarding suspected violations of laws, rules, or regulations to a governmental, regulatory or self-regulatory organization without any notification to any Person.
11.16 WAIVERS OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE AGENT, THE TERM ADMINISTRATIVE AGENT, THE REVOLVING ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
11.17 USA PATRIOT Act. Each Lender hereby notifies each Loan Party that pursuant to the requirements of the USA PATRIOT Act (Title III of Publ. L. 107-56 (signed into law October 26, 2001)), (the “Patriot Act”), it is required to obtain, verify and record information that identifies each Loan Party, which information includes the name and address of the each Loan Party and other information that will allow such Lender to identify each Loan Party in accordance with the Patriot Act.
11.18 Lender Action. Each Lender and each other Secured Party agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy against any Loan Party or any other obligor under any of the Loan Documents (including the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral or any other property of any such Loan Party, unless expressly provided for herein or in any other Loan Document, without the prior written consent of the Applicable Administrative Agent. The provisions of this Section 11.19 are for the sole benefit of the Lenders and the other Secured Parties and shall not afford any right to, or constitute a defense available to, any Loan Party.
11.19 Certain Undertakings with Respect to Certain Affiliate Lenders.
(a) Notwithstanding anything in this Agreement or any other Loan Document to the contrary, Affiliated Lenders shall not be permitted to attend any meeting (live or by any electronic means) in such Affiliated Lender’s capacity as a Lender with the Administrative Agent, the Term Administrative Agent, the Revolving Administrative Agent or other Lender or receive any information from the Administrative Agent, the Term Administrative Agent, the Revolving Administrative Agent or other Lender, except to the extent such information is made available to any Loan Party (or its representatives) and other than administrative notices given to all Lenders hereunder (including information delivered by the Borrower in accordance with Section 7.1 and Section 7.2), or have access to the Platform; and
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(b) Notwithstanding anything in this Agreement or any other Loan Document to the contrary, with respect to any Loans at any time held by an Affiliated Lender, such Affiliated Lender shall have no right whatsoever, in its capacity as a Lender with respect to such Loans then held by such Affiliated Lender, whether or not the Borrower or any other Loan Party is subject to a bankruptcy or other insolvency proceeding or otherwise, so long as such Lender is an Affiliated Lender, to (i) consent to any amendment, modification, waiver, consent or other such action with respect to, or otherwise vote on any matter related to, or vote in connection with any direction delivered to the Administrative Agent, the Term Administrative Agent or the Revolving Administrative Agent by the Required Lenders, Required Revolving Lenders or by the Majority Facility Lenders under any Facility pursuant to, any of the terms of the Agreement or any other Loan Document, in each case to the extent such amendment, modification, waiver, consent, other action, vote or direction is effective with only the consent of or action by the Required Lenders or the Majority Facility Lenders under any Facility (each, a “Lender Vote/Directive”) and, if applicable, the Borrower; provided, that for purposes of any Lender Vote/Directive, the Applicable Administrative Agent shall automatically deem any Loans held by such Affiliated Lender to be voted on a pro rata basis in accordance with the votes cast in respect of the Loans of all other Lenders in the aggregate (other than any Affiliated Lenders) in connection with any such Lender Vote/Directive (including all voting and consent rights arising out of any bankruptcy or other insolvency proceedings (except for voting on any plan of reorganization or refraining from voting on any plan of reorganization, in which case the Applicable Administrative Agent shall vote or refrain from voting such Loans of such Affiliated Lender in its sole discretion)); provided, further, that no such Lender Vote/Directive shall deprive such Affiliated Lender of its share of any payments or other recoveries which the Lenders are entitled to share on a pro rata basis under the Loan Documents and such Affiliated Lender’s vote shall be counted to the extent any such plan of reorganization or other amendment, waiver, modification or consent proposes to treat the Obligations of the Affiliated Lender in a manner less favorable in any material respect to such Affiliated Lender than the proposed treatment of Obligations held by Lenders that are not Affiliates of the Borrower.
11.20 No Fiduciary Duty. The Administrative Agent, the Term Administrative Agent, the Revolving Administrative Agent, each Other Representative, each Lender and their Affiliates (collectively, solely for purposes of this Section 11.22, the “Lenders”), may have economic interests that conflict with those of the Loan Parties, their stockholders and/or their affiliates. The Borrower, on behalf of itself and each other Loan Party, agrees that nothing in the Loan Documents or otherwise will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or other implied duty between any Lender or Other Representative, on the one hand, and the Borrower and such other Loan Party, its stockholders or its affiliates, on the other. The Borrower, on behalf of itself and each other Loan Party, acknowledges and agrees that (i) the transactions contemplated by the Loan Documents (including the exercise of rights and remedies hereunder and thereunder) are arm’s-length commercial transactions between the Lenders or Other Representatives, on the one hand, and the Loan Parties, on the other, and (ii) in connection therewith and with the process leading thereto, (x) no Lender or Other Representative has assumed an advisory or fiduciary responsibility in favor of any Loan Party, their stockholders or their Affiliates with respect to the transactions contemplated hereby (or the exercise of rights or
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remedies with respect thereto) or the process leading thereto (irrespective of whether any Lender or Other Representative has advised, is currently advising or will advise any Loan Party, its stockholders or its Affiliates on other matters) or any other obligation to any Loan Party except the obligations expressly set forth in the Loan Documents and (y) each Lender or Other Representative is acting solely as principal and not as the agent or fiduciary of any Loan Party, its management, stockholders, creditors or any other Person. The Borrower, on behalf of itself and each other Loan Party, acknowledges and agrees that it has consulted its own legal and financial advisors to the extent it deemed appropriate and that it is responsible for making its own independent judgment with respect to such transactions and the process leading thereto. The Borrower, on behalf of itself and each other Loan Party, agrees that it will not claim that any Lender or Other Representative has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Borrower or such other Loan Party, in connection with such transaction or the process leading thereto.
11.21 Acknowledgement and Consent to Bail-In of Affected Financial Institutions. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Affected Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a) the application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an Affected Financial Institution; and
(b) the effects of any Bail-in Action on any such liability, including, if applicable:
(i) a reduction in full or in part or cancellation of any such liability;
(ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or
(iii) the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of the applicable Resolution Authority.
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11.22 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 Applicable Administrative Agent could purchase the first currency with such other currency on the Business Day preceding that on which final judgment in given. The obligation of any Loan Party in respect of such sum due from it to the Applicable 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 Applicable Administrative Agent of any sum adjudged to be so due in the Judgment Currency, the Applicable 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 Applicable Administrative Agent from the Borrower or Guarantor in the Agreement Currency, such Borrower or Guarantor agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the Applicable 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 Applicable Administrative Agent in such currency, the Applicable Administrative Agent agrees to return the amount of any excess to such Borrower or Guarantor (or to any other Person who may be entitled thereto under applicable law).
11.23 Acknowledgment Regarding Any Supported QFCs. To the extent that the Loan Documents provide support, through a guarantee or otherwise, for Hedge Agreements or any other agreement or instrument that is a QFC (such support, “QFC Credit Support” and, each such QFC, a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States):
(a) In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support; and
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(b) As used in this Section 11.23, 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).
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