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As Of Filer Filing For·On·As Docs:Size 6/05/19 Vishay Intertechnology Inc 8-K:1,2,8,9 6/05/19 3:1.2M |
Document/Exhibit Description Pages Size 1: 8-K Current Report HTML 28K 2: EX-10.1 Material Contract -- exhibit10-1 HTML 953K 3: EX-99.1 Miscellaneous Exhibit -- exhibit99-1 HTML 10K
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Definitions
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The Credits
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Representations and Warranties
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Conditions
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Affirmative Covenants
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Negative Covenants
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Events of Default
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The Administrative Agent
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Miscellaneous
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SCHEDULES:
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Schedule 2.01
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Commitments
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Schedule 2.04
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Existing Letters of Credit
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EXHIBITS:
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Exhibit A
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Form of Assignment and Assumption
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Exhibit B
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Form of Borrowing Request
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Exhibit C
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Form of Collateral Agreement
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Exhibit D
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Form of Global Intercompany Note
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Exhibit E
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Form of Compliance Certificate
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Exhibit F
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Form of Interest Election Request
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Exhibit G-1
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Form of Perfection Certificate
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Exhibit G-2
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Form of Supplemental Perfection Certificate
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Exhibit H
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Form of Solvency Certificate
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Exhibit I-1
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Form of U.S. Tax Certificate for Foreign Lenders that are not Partnerships for U.S. Federal Income Tax Purposes
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Exhibit I-2
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Form of U.S. Tax Certificate for Foreign Lenders that are Partnerships for U.S. Federal Income Tax Purposes
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Exhibit I-3
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Form of U.S. Tax Certificate for Foreign Participants that are not Partnerships for U.S. Federal Income Tax Purposes
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Exhibit I-4
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Form of U.S. Tax Certificate for Foreign Participants that are Partnerships for U.S. Federal Income Tax Purposes
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Level
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Leverage Ratio
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ABR Spread
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Eurocurrency Spread
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Commitment Fee Rate
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I
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Greater than or equal to 2.50 to 1.00
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1.00%
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2.00%
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0.35%
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II
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Greater than or equal to 1.50 to 1.00, but less than 2.50 to 1.00
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0.75%
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1.75%
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0.30%
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III
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Less than 1.50 to 1.00
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0.50%
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1.50%
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0.25%
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(a)
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direct obligations of, or obligations the principal of and interest on which are unconditionally
guaranteed by, the United States of America or the European Union (or by any agency thereof to the extent such obligations are backed by the full faith and credit of the United States of America or the European Union, as applicable), in
each case maturing up to one year from the date of acquisition thereof;
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(b)
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investments in commercial paper maturing up to 12 months from the date of acquisition thereof and
having, at such date of acquisition, a credit rating of at least (i) A-2 by S&P or (ii) P-2 by Moody’s;
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(c)
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investments in certificates of deposit, banker’s acceptances and demand or time deposits, in each
case maturing up to one year from the date of acquisition thereof, issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, any commercial bank (whether domestic or foreign) that has a combined
capital and surplus and undivided profits of not less than an amount the Dollar Equivalent of which is $500,000,000;
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(d)
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fully collateralized repurchase agreements with a term of not more than 30 days for securities
described in clause (a) above and entered into with a financial institution satisfying the criteria described in clause (c) above;
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(e)
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“money market funds” that (i) comply with the criteria set forth in Rule 2a‑7 of the Investment Company
Act, (ii) are rated AAA by S&P and Aaa by Moody’s and (iii) have portfolio assets of at least $1,000,000,000;
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(f)
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investment funds investing at least 95% of their assets in securities of the types described in clauses
(a) through (e) above; and
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(g)
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in the case of any Foreign Subsidiary, other short-term investments that are analogous to the
foregoing, are of comparable credit quality and are customarily used by companies in the jurisdiction of such Foreign Subsidiary for cash management purposes.
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(a)
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the Administrative Agent shall have received from the Borrower and each Material Domestic Subsidiary
either (i) a counterpart of the Collateral Agreement duly executed and delivered on behalf of such Person or (ii) in the case of any Person that becomes a Material Domestic Subsidiary after the Effective Date (including by ceasing to be
an Excluded Subsidiary), a supplement to the Collateral Agreement, in the form specified therein, duly executed and delivered on behalf of such Person, together with documents and opinions of the type referred to in paragraphs (b) and (c)
of Section 4.01 with respect to such Material Domestic Subsidiary;
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(b)
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all Equity Interests in any wholly-owned Subsidiary owned directly by or on behalf of any Loan Party
shall have been pledged pursuant to the Collateral Agreement (provided that the Loan Parties shall not be required to pledge Equity
Interests in any Foreign Subsidiary that is not a Material Foreign Subsidiary and shall not be required to pledge more than 65% of the voting power of the outstanding voting Equity Interests of any Material Foreign Subsidiary), and the
Administrative Agent shall, to the extent required by the Collateral Agreement, have received certificates or other instruments representing all such Equity Interests, together with undated stock powers or other instruments of transfer
with respect thereto endorsed in blank;
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(c)
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(i) all Indebtedness of the Borrower and each Subsidiary, and (ii) all other Indebtedness (other than
Cash Equivalents) of any Person in a principal amount of $1,000,000 or more, in each case that is owing to any Loan Party shall be evidenced by a promissory note and shall have been pledged pursuant to the Collateral Agreement, and the
Administrative Agent shall have received all such promissory notes, together with undated instruments of transfer with respect thereto endorsed in blank;
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(d)
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all documents and instruments, including Uniform Commercial Code financing statements, required by
Requirements of Law or reasonably requested by the Administrative Agent to be filed, registered or recorded to create the Liens intended to be created by the Security Documents and perfect such Liens to the extent required by, with the
priority required by, and subject to the exceptions and limitations set forth in, the Security Documents and the other provisions of the term “Collateral and Guarantee Requirement”, shall have been filed, registered or recorded or
delivered to the Administrative Agent for filing, registration or recording; and
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(e)
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each Loan Party shall have obtained all consents and approvals required to be obtained by it in
connection with the execution and delivery of all Security Documents to which it is a party, the performance of its obligations thereunder and the granting by it of the Liens thereunder.
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(a)
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without duplication and to the extent deducted in determining such Consolidated Net Income, the sum
for the Borrower and the Subsidiaries of:
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(i)
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consolidated interest expense for such period (including imputed interest expense in respect of
Finance Lease Obligations), determined on a consolidated basis in accordance with GAAP;
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(iii)
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all amounts attributable to depreciation and amortization for such period (excluding amortization
expense attributable to a prepaid cash item that was paid in a prior period);
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(iv)
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any Non-Cash Charges for such period (excluding any additions to bad debt reserves or bad debt
expense);
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(v)
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any losses attributable to early extinguishment of Indebtedness or obligations under any Hedging
Agreement;
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(vi)
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losses recognized related to any Person (excluding the Borrower) that is not a consolidated
Subsidiary and accounted for by equity method;
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(vii)
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restructuring charges and reserves in an aggregate amount not to exceed $35,000,000 for any period of
four consecutive fiscal quarters ending immediately prior to or any time after the Effective Date (provided that 50% of any unused amount
under this clause (vii) during each fiscal year may be carried forward to, and applied to restructuring charges and reserves taken, at any time during, the next succeeding fiscal year; provided further that all restructuring charges and reserves taken in any fiscal
year shall be deemed to first utilize the $35,000,000 basket for such year prior to utilizing any such carry-forward amount); and
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(viii)
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restructuring charges and reserves in connection with any Material Acquisition (i) that are taken
substantially simultaneously with the consummation of such Material Acquisition and (ii) substantially all the cash expenditures in connection with which are anticipated to occur during the eighteen-month period following the date of such
consummation, in a cumulative aggregate amount not exceeding $100,000,000 in respect of all fiscal periods ending on or after March 30, 2019;
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(b)
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without duplication and to the extent included in determining such Consolidated Net Income, the sum
for the Borrower and the Subsidiaries of:
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(i)
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any gains attributable to the early extinguishment of Indebtedness or obligations under any Hedging
Agreement;
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(ii)
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income recognized related to any Person (excluding the Borrower) that is not a consolidated Subsidiary and
accounted for by equity method except to the extent of the amount of cash dividends or similar cash distributions actually paid by such Person to the Borrower or any other consolidated Subsidiary;
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(iii)
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the income of any Person that is not a consolidated Subsidiary during such period to the extent that, on the
date of determination, the declaration or payment of cash dividends or similar cash distributions by such Subsidiary is not permitted without any prior approval of any Governmental Authority that has not been obtained or is not permitted
by the operation of the terms of the organizational documents of such Subsidiary, any agreement or other instrument binding upon the Borrower or any Subsidiary or any law applicable to the Borrower or any Subsidiary, unless such
restrictions with respect to the payment of cash dividends and other similar cash distributions has been legally and effectively waived, except to the extent of any cash dividends or similar cash distributions actually paid by such Person
to the Borrower or a Subsidiary Loan Party; and
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(iv)
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any non-cash credits for such period (excluding any deductions to bad debt reserves or bad debt expense);
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(i)
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a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
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(ii)
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a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
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(iii)
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a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
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(a)
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matures or is mandatorily redeemable (other than solely for Equity Interests in such Person that do not
constitute Disqualified Equity Interests and cash in lieu of fractional shares of such Equity Interests), whether pursuant to a sinking fund obligation or otherwise;
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(b)
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is convertible or exchangeable, either mandatorily or at the option of the holder thereof, for Indebtedness
or Equity Interests (other than solely for Equity Interests in such Person that do not constitute Disqualified Equity Interests and cash in lieu of fractional shares of such Equity Interests); or
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(c)
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is redeemable (other than solely for Equity Interests in such Person that do not constitute Disqualified
Equity Interests and cash in lieu of fractional shares of such Equity Interests) or is required to be repurchased by the Borrower or any Subsidiary, in whole or in part, at the option of the holder thereof;
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(a)
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Liens imposed by law for Taxes that are not yet due and payable or are being contested in compliance with
Section 5.06;
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(b)
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carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens imposed by law (other
than any Lien imposed pursuant to Section 430(k) of the Code or Section 303(k) of ERISA or a violation of Section 436 of the Code), arising in the ordinary course of business and securing obligations that are not overdue by more than 60
days or are being contested in compliance with Section 5.06;
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(c)
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pledges and deposits made (i) in the ordinary course of business in compliance with workers’ compensation,
unemployment insurance and other social security laws and (ii) in respect of letters of credit, surety bonds, bank guarantees or similar instruments issued for the account of the Borrower or any Subsidiary in the ordinary course of
business supporting obligations of the type set forth in clause (i) above;
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(d)
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pledges and deposits made (i) to secure the performance of bids, trade contracts, leases, statutory
obligations (including to customs authorities), surety and appeal bonds, performance bonds and other obligations of a like nature, in each case in the ordinary course of business and (ii) in respect of letters of credit, surety bonds,
bank guarantees or similar instruments issued for the account of the Borrower or any Subsidiary in the ordinary course of business supporting obligations of the type set forth in clause (i) above;
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(e)
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easements, covenants, zoning restrictions, rights-of-way and similar encumbrances on real property imposed by
law or arising in the ordinary course of business, and other minor title imperfections with respect to real property, that do not secure any monetary obligations and do not materially detract from the value of the affected property or
interfere with the ordinary conduct of business of the Borrower or any Subsidiary;
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(f)
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Liens arising from Cash Equivalents described in clause (d) of the definition of the term “Cash Equivalents”;
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(g)
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banker’s liens, rights of setoff or similar rights and remedies as to deposit accounts or other funds
maintained with depository institutions and securities accounts and other financial assets maintained with a securities intermediary, provided that
such deposit accounts or funds and securities accounts or other financial assets are not established or deposited for the purpose of providing collateral for any Indebtedness and are not subject to restrictions on access by the Borrower or
any Subsidiary in excess of those required by applicable banking regulations, and Liens encumbering reasonable and 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;
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(h)
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Liens arising by virtue of Uniform Commercial Code financing statement filings (or similar filings under
applicable law) regarding operating leases or consignments entered into by the Borrower and the Subsidiaries in the ordinary course of business;
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(i)
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Liens securing or otherwise arising from judgments not constituting an Event of Default under clause (l) of
Article VII;
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(j)
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Liens of a collecting bank arising in the ordinary course of business under Section 4-210 (or the applicable
corresponding section) of the Uniform Commercial Code in effect in the relevant jurisdiction covering only the items being collected upon;
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(k)
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Liens representing any interest or title of a licensor, lessor or sublicensor or sublessor, or a licensee,
lessee or sublicensee or sublessee, in the property (including any Intellectual Property) subject to any lease, license, sublicense or concession agreement permitted by this Agreement;
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(l)
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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;
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(m)
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ground leases in respect of real property on which facilities owned or leased by the Borrower or any of its
Subsidiaries are located and other Liens affecting the interest of any landlord (and any underlying landlord) of any real property leased by the Borrower or any Subsidiary, so long as such ground lease does not interfere with the ordinary
conduct of business of the Borrower or any Subsidiary;
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(n)
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Liens securing insurance premium financing arrangements; provided that such Liens are limited to the applicable unearned insurance premiums;
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(o)
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Liens on specific items of inventory or other goods and proceeds of any Person securing such Person’s
obligations in respect of bankers’ acceptances issued or created in the ordinary course of business for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;
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(q)
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Liens arising in the ordinary course of business to secure accounts payable or similar trade obligations not
constituting Indebtedness (other than any Indebtedness relating to deposits or advances set forth in clause (a)(ii) of the definition of Indebtedness, to the extent Liens with respect thereto are limited to the funds advanced or
deposited).
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(a)
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in the case of a Permitted Holder that is a natural person, (i) the spouse of a Permitted Holder, any lineal
descendant of a great grandparent of either a Permitted Holder or the spouse of such Permitted Holder, including adopted children; (ii) the trustee of a trust (whether testamentary, inter vivos or a voting trust) principally for the
benefit of such Permitted Holder and/or one or more of such Permitted Holder’s Permitted Transferees described in each subclause of this clause (a); (iii) any organization to which contributions are deductible for federal income, estate
or gift tax purposes or any split-interest trust described in Section 4947 of the Code (a “Charitable Organization”); (iv) a corporation, of which
outstanding capital stock entitled to a majority of the votes in the election of directors is owned beneficially solely by, or a partnership, of which a majority of the partnership interests entitled to participate in the management of
the partnership is owned beneficially solely by, such Permitted Holder and/or one or more of a Permitted Holder’s Permitted Transferees determined under this clause (a); and (v) the estate of a Permitted Holder;
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(b)
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in the case of a Permitted Holder holding the shares of Class B Common Stock in question as trustee pursuant
to a trust (other than pursuant to a trust described in clause (f) below), (i) any person transferring Class B Common Stock to such trust and (ii) any Permitted Transferee of any such transferor determined pursuant to clause (a) above;
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(c)
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in the case of a Permitted Holder that is a Charitable Organization holding record and beneficial ownership
of the shares of Class B Common Stock in question, any Permitted Holder;
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(d)
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in the case of a Permitted Holder that is a corporation or partnership (other than a Charitable Organization)
acquiring record and beneficial ownership of the shares of Class B Common Stock in question upon its initial issuance by the Borrower, (i) a partner of such partnership or shareholder of such corporation at the time of issuance, and (ii)
any Permitted Transferee (determined pursuant to clause (a) above) of any such partner or shareholder referred to in subclause (i) of this clause (d);
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(e)
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in the case of a Permitted Holder that is a corporation or partnership (other than a Charitable Organization
or a corporation or partnership described in clause (d) above) holding record and beneficial ownership of the shares of Class B Common Stock in question, (i) any person transferring such shares of Class B Common Stock to such corporation
or partnership and (ii) any Permitted Transferee of any such transferor determined under clause (a) above;
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(f)
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in the case of a Permitted Holder holding the shares of Class B Common Stock in question as trustee pursuant
to a trust that was irrevocable at the time of issuance of the Class B Common Stock, (i) any person to whom or for whose benefit principal may be distributed either during or at the end of the term of such trust whether by power of
appointment or otherwise and (ii) any Permitted Transferee of any such person determined pursuant to clause (a) above; and
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(g)
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in the case of a Permitted Holder that is the estate of a deceased Permitted Holder or that is the estate of
a bankrupt or insolvent Permitted Holder, that holds record and beneficial ownership of the shares of Class B Common Stock in question, a Permitted Transferee of such deceased, bankrupt or insolvent Permitted Holder as determined pursuant
to clause (a), (b), (c), (d), (e) or (f) above, as the case may be.
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(a)
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Except as otherwise expressly provided herein, all terms of an accounting or financial nature used herein shall be construed in accordance with GAAP as in effect from time to time; provided that (i) if the Borrower, by notice to the Administrative Agent, shall request, with respect to any provision hereof, to eliminate the effect of any change occurring after the date hereof in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent or the Required Lenders, by notice to the Borrower, shall request such elimination), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith and (ii) notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, (A) without giving effect to any election under the Financial Accounting Standards Board’s Accounting Standards Codification No. 825, Financial Instruments, or any successor thereto, or under any similar accounting standard, to value any Indebtedness of the Borrower or any Subsidiary at “fair value”, as defined therein, and (B) without giving effect to any treatment of Indebtedness under Accounting Standards Codification 470-20 or 835-30 (or any other Accounting Standards Codification or Accounting Standards Update having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. For purposes of the foregoing, any change by the Borrower in its accounting principles and standards to adopt International Financial Reporting Standards, regardless of whether required by applicable laws and regulations, will be deemed a change in GAAP. |
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(b)
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For purposes of determining compliance with any test or covenant contained in this Agreement with respect to any period during which any Material Acquisition or Material Disposition occurs, Consolidated EBITDA, the Leverage Ratio and the Interest Coverage Ratio shall be calculated with respect to such period and with respect to such Material Acquisition or Material Disposition on a Pro Forma Basis. |
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(a)
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Not later than 1:00 p.m., New York City time, on each Calculation Date or LC Participation Calculation Date, the Administrative Agent shall (x) determine the Exchange Rate as of such Calculation Date or LC Participation Calculation Date with respect to the applicable Designated Foreign Currency and (y) give notice thereof to the relevant Lenders, Issuing Banks and the Borrower. The Exchange Rates so determined shall become effective (i) in the case of the initial Calculation Date, on the Effective Date and (ii) in the case of each subsequent Calculation Date or LC Participation Calculation Date, on the first Business Day immediately following such Calculation Date or LC Participation Calculation Date (a “Reset Date”), shall remain effective until the next succeeding Reset Date and shall for all purposes of this Agreement (other than any provision expressly requiring the use of a current exchange rate) be the Exchange Rates employed in converting any amounts between Dollars and any Designated Foreign Currency. |
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(b)
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Solely for purposes of Article II and related definitional provisions to the extent used therein, the applicable amount of any currency (other than Dollars) for purposes of the Loan Documents shall be such Dollar Equivalent amount as determined by the Administrative Agent and notified to the applicable Lender and the Borrower in accordance with this Section. If any basket is exceeded solely as a result of fluctuations in the applicable Exchange Rate after the last time such basket was utilized, such basket will not be deemed to have been exceeded solely as a result of such fluctuations in the applicable Exchange Rate. |
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(c)
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For purposes of Section 6.01, the amount of any Indebtedness denominated in any currency other than dollars shall be calculated based on the applicable Exchange Rate, in the case of such Indebtedness incurred or committed, on the date that such Indebtedness was incurred or committed, as applicable; provided that if such Indebtedness is incurred to refinance other Indebtedness denominated in a currency other than dollars, and such refinancing would cause the applicable dollar-denominated restriction to be exceeded if calculated at the applicable Exchange Rate on the date of such refinancing, such dollar-denominated restrictions shall be deemed not to have been exceeded so long as the principal amount of such Refinancing Indebtedness does not exceed the sum of (i) the outstanding or committed principal amount, as applicable, 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)
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For purposes of Sections 6.02, 6.04, 6.05 and 6.08, the amount of any Liens, investments, asset sales and Restricted Payments, as applicable, denominated in any currency other than Dollars shall be calculated based on the applicable Exchange Rate on the date that such Lien is incurred or such investment, asset sale or Restricted Payment is made, as the case may be. |
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(a)
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Each Loan shall be made as part of a Borrowing consisting of Loans of the same Class and Type made by the
Lenders ratably in accordance with their respective Commitments of the applicable Class. The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans as required.
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(b)
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Subject to Section 2.13, (i) each Borrowing denominated in Dollars shall be comprised entirely of ABR Loans or Eurocurrency Loans as the Borrower may request in accordance herewith and (ii) each Borrowing denominated in any Designated Foreign Currency shall be comprised entirely of Eurocurrency Loans. Each Lender at its option may make any Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that any exercise of such option shall not affect the obligation of the Borrower to repay such Loan in accordance with the terms of this Agreement. |
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(c)
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At the commencement of each Interest Period for any Eurocurrency Borrowing, such Borrowing shall be in an aggregate amount that is an integral multiple of the Borrowing Multiple and not less than the Borrowing Minimum; provided that a Eurocurrency Borrowing that results from a continuation of an outstanding Eurocurrency Borrowing may be in an aggregate amount that is equal to such outstanding Borrowing. At the time that each ABR Borrowing is made, such Borrowing shall be in an aggregate amount that is an integral multiple of the Borrowing Multiple and not less than the Borrowing Minimum; provided that an ABR Revolving Borrowing may be in an aggregate amount that is equal to the entire unused balance of the Aggregate Revolving Commitment or that is required to finance the reimbursement of an LC Disbursement as contemplated by Section 2.04(f). Borrowings of more than one Type and Class may be outstanding at the same time; provided that there shall not at any time be more than a total of 10 (or such greater number as may be agreed to by the Administrative Agent) Eurocurrency Borrowings outstanding. |
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(d)
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Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled to request, or to elect to convert to or continue, any Eurocurrency Borrowing if the Interest Period requested with respect thereto would end after the Maturity Date applicable thereto. |
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(i)
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whether the requested Borrowing is to be a Revolving Borrowing or a Term Borrowing of a particular Series;
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(v)
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in the case of a Eurocurrency Borrowing, the initial Interest Period to be applicable thereto, which shall be
a period contemplated by the definition of the term “Interest Period”; and
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(vi)
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the location and number of the account of the Borrower to which funds are to be disbursed or, in the case of
any ABR Revolving Borrowing requested to finance the reimbursement of an LC Disbursement as provided in Section 2.04(f), the identity of the Issuing Bank that made such LC Disbursement.
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(a)
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General. Subject
to the terms and conditions set forth herein, the Borrower may request any Issuing Bank to issue Letters of Credit for its own account or, so long as the Borrower is a joint and several co-applicant with respect thereto, the account of
any Domestic Subsidiary, denominated in Dollars, Euro, Sterling or, if agreed to by the applicable Issuing Bank, any other Designated Foreign Currency and in a form reasonably acceptable to the applicable Issuing Bank, at any time and
from time to time during the Revolving Availability Period. The Borrower unconditionally and irrevocably agrees that, in connection with any Letter of Credit issued for the account of any Subsidiary as provided in the first sentence of
this paragraph, it will be fully responsible for the reimbursement of LC Disbursements, the payment of interest thereon and the payment of fees due under Section 2.11(b) to the same extent as if it were the sole account party in respect
of such Letter of Credit. Notwithstanding anything contained in any letter of credit application furnished to any Issuing Bank in connection with the issuance of any Letter of Credit, (i) all provisions of such letter of credit
application purporting to grant liens in favor of the Issuing Bank to secure obligations in respect of such Letter of Credit shall be disregarded, it being agreed that such obligations shall be secured to the extent provided in this
Agreement and in the Security Documents, and (ii) in the event of any inconsistency between the terms and conditions of such letter of credit application and the terms and conditions of this Agreement, the terms and conditions of this
Agreement shall control. On the Effective Date, each Existing Letter of Credit shall, without any further action by any Person, be deemed to have been issued as a Letter of Credit hereunder (without any breakage or transfer charges in
connection therewith) and shall for all purposes hereof (including paragraphs (d) and (f) of this Section) be treated as and constitute a Letter of Credit.
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(b)
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Notice of Issuance,
Amendment, Renewal, Extension; Certain Conditions. To request the issuance of a Letter of Credit or the amendment, renewal or extension of an outstanding Letter of Credit (other than any automatic renewal permitted
pursuant to paragraph (c) of this Section), the Borrower shall hand deliver or fax (or transmit by electronic communication, if arrangements for doing so have been approved by the recipient) to the applicable Issuing Bank and the
Administrative Agent, reasonably in advance of the requested date of issuance, amendment, renewal or extension, a notice requesting the issuance of a Letter of Credit, or identifying the Letter of Credit to be amended, renewed or
extended, and specifying the requested date of issuance, amendment, renewal or extension (which shall be a Business Day), the date on which such Letter of Credit is to expire (which shall comply with paragraph (c) of this Section), the
amount of such Letter of Credit, the currency in which such Letter of Credit is to be denominated, the name and address of the beneficiary thereof and such other information as shall be necessary to enable the applicable Issuing Bank to
prepare, amend, renew or extend such Letter of Credit. If requested by the applicable Issuing Bank, the Borrower also shall submit a letter of credit application on such Issuing Bank’s standard form in connection with any such request.
A Letter of Credit shall be issued, amended, renewed or extended only if (and upon each issuance, amendment, renewal or extension of any Letter of Credit the Borrower shall be deemed to represent and warrant that), after giving effect to
such issuance, amendment, renewal or extension, (i) the LC Exposure will not exceed $30,000,000, (ii) the Aggregate Revolving Exposure will not exceed the Aggregate Revolving Commitment, (iii) the LC Exposure attributable to Letters of
Credit issued by any Issuing Bank will not exceed the LC Commitment of such Issuing Bank and (iv) the Aggregate Revolving Exposure denominated in Designated Foreign Currencies will not exceed the Designated Foreign Currency Sublimit. No
Issuing Bank shall be obligated to issue commercial or trade Letters of Credit if such issuance would not be in accordance with its internal policies or procedures. Each Issuing Bank agrees that it shall not permit any issuance,
amendment, renewal or extension of a Letter of Credit to occur unless it shall have given to the Administrative Agent written notice thereof required under paragraph (l) of this Section.
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(c)
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Expiration Date.
Each Letter of Credit shall expire at or prior to the close of business on the earlier of (i) the date one year after the date of the issuance of such Letter of Credit (or, in the case of any renewal or extension thereof, one year after
such renewal or extension) unless otherwise consented to by the Issuing Bank and (ii) the date that is five Business Days prior to the Revolving Maturity Date; provided
that any Letter of Credit may contain customary automatic renewal provisions agreed upon by the Borrower and the applicable Issuing Bank pursuant to which the expiration date of such Letter of Credit shall automatically be extended for a
period of up to 12 months (but not to a date later than the date set forth in clause (ii) above), subject to any right on the part of such Issuing Bank to prevent any such renewal from occurring that may be contained in such Letter of
Credit; and provided further that if there exist any
Incremental Revolving Commitments having a maturity date later than the Revolving Maturity Date (the “Subsequent Maturity Date”), then, so long as
the aggregate LC Exposure in respect of Letters of Credit expiring after the Revolving Maturity Date will not exceed the lesser of $10,000,000 and the aggregate amount of such Incremental Revolving Commitments, the Borrower may request
the issuance of a Letter of Credit that shall expire at or prior to the close of business on the earlier of (A) the date one year after the date of the issuance of such Letter of Credit (or, in the case of any renewal or extension
thereof, one year after such renewal or extension) and (B) the date that is five Business Days prior to the Subsequent Maturity Date. Notwithstanding the foregoing, any Letter of Credit issued hereunder may, in the sole discretion of the
applicable Issuing Bank, expire after the fifth Business Day prior to the Revolving Maturity Date (or the Subsequent Maturity Date) but on or before the date that is 90 days after the Revolving Maturity Date (or the Subsequent Maturity
Date), provided that the Borrower hereby agrees that it shall provide cash collateral in an amount equal to 102% of the LC Exposure in respect of
any such outstanding Letter of Credit to the applicable Issuing Bank at least five Business Days prior to the Revolving Maturity Date (or Subsequent Maturity Date, if applicable), which such amount shall be (A) deposited by the Borrower
in an account with and in the name of such Issuing Bank and (B) held by such Issuing Bank for the satisfaction of the Borrower’s reimbursement obligations in respect of such Letter of Credit until the expiration of such Letter of Credit.
Any Letter of Credit issued with an expiration date beyond the fifth Business Day prior to the Revolving Maturity Date (or the Subsequent Maturity Date, as applicable) shall, to the extent of any undrawn amount remaining thereunder on the
Revolving Maturity Date (or the Subsequent Maturity Date, if applicable), cease to be a “Letter of Credit” outstanding under this Agreement for purposes of the Revolving Lenders’ obligations to participate in Letters of Credit pursuant to
clause (d) below.
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(d)
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Participations.
By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) and without any further action on the part of the applicable Issuing Bank or any Revolving Lender, the Issuing Bank that is the
issuer thereof hereby grants to each Revolving Lender, and each Revolving Lender hereby acquires from such Issuing Bank, a participation in such Letter of Credit equal to such Revolving Lender’s Applicable Percentage of the aggregate
amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of
such Issuing Bank, such Revolving Lender’s Applicable Percentage of each LC Disbursement made by such Issuing Bank under such Letter of Credit and not reimbursed by the Borrower on the date due as provided in paragraph (f) of this
Section, or of any reimbursement payment required to be refunded to the Borrower for any reason, including after the Revolving Maturity Date (or the Subsequent Maturity Date as applicable). Such payment by the Revolving Lenders shall be
made (i) if the currency of the applicable LC Disbursement or reimbursement payment shall be in Dollars, then in Dollars and (ii) subject to paragraph (n) of this Section, if the currency of the applicable LC Disbursement or reimbursement
payment shall be a Designated Foreign Currency, then in Dollars in an amount equal to the Dollar Equivalent of such LC Disbursement or reimbursement payment, calculated by the Administrative Agent using the Exchange Rate on the applicable
LC Participation Calculation Date. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit, any fluctuation in currency values, the occurrence and continuance of a Default or any reduction or termination of the
Revolving Commitments or any force majeure or other event that under any rule of law or uniform practices to which any Letter of Credit is subject (including Section 3.14 of the ISP) permits a drawing to be made under such Letter of
Credit after the expiration thereof or of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender further acknowledges and agrees that,
in issuing, amending, renewing or extending any Letter of Credit, the applicable Issuing Bank shall be entitled to rely, and shall not incur any liability for relying, upon the representation and warranty of the Borrower deemed made
pursuant to Section 4.02.
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(e)
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Disbursements.
The Issuing Bank for any Letter of Credit shall, within the time allowed by applicable law or the specific terms of the Letter of Credit following its receipt thereof, examine all documents purporting to represent a demand for payment
under such Letter of Credit and shall promptly, after such examination, notify the Administrative Agent and the Borrower by telephone (confirmed by hand delivery or facsimile) of such demand for payment if such Issuing Bank has made or
will make an LC Disbursement thereunder; provided that any failure to give or delay in giving such notice shall not relieve the Borrower of its
obligation to reimburse such LC Disbursement.
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(f)
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Reimbursements.
If an Issuing Bank shall make an LC Disbursement in respect of a Letter of Credit, the Borrower shall reimburse such LC Disbursement by paying to the Administrative Agent an amount in the currency of such LC Disbursement equal to such LC
Disbursement not later than 3:00 p.m., New York City time, on the Business Day immediately following the day that the Borrower receives such notice; provided
that, in the case of an LC Disbursement denominated in Dollars in an amount of $500,000 or more, the Borrower may, subject to the conditions to borrowing set forth herein, request in accordance with Section 2.03 that such payment be
financed with an ABR Revolving Borrowing in an equivalent amount, and, to the extent so financed, the Borrower’s obligation to make such payment shall be discharged and replaced by the resulting ABR Revolving Borrowing. If the Borrower
fails to reimburse any LC Disbursement by the time specified above, then, (i) if the currency of the applicable LC Disbursement is a Designated Foreign Currency, the Borrower’s obligation to reimburse such LC Disbursement shall
automatically and with no further action required be converted into an obligation to reimburse the Dollar Equivalent of such LC Disbursement, calculated by the Administrative Agent using the Exchange Rate on the applicable LC
Participation Calculation Date, and (ii) in the case of each LC Disbursement, the applicable Issuing Bank shall promptly notify the Administrative Agent, and the Administrative Agent shall notify each Revolving Lender of the applicable LC
Disbursement, the amount and currency of the payment then due from the Borrower in respect of the applicable LC Disbursement and such Revolving Lender’s Applicable Percentage thereof. Promptly following receipt of such notice (and, in
any event, by the next Business Day), each Revolving Lender shall pay to the Administrative Agent in Dollars its Applicable Percentage of the amount then due from the Borrower, in the same manner as provided in Section 2.05 with respect
to Loans made by such Lender (and Section 2.05 shall apply, mutatis mutandis,
to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit to the applicable Issuing Bank the amounts so received by it from the Revolving Lenders. Promptly
following receipt by the Administrative Agent of any payment from the Borrower pursuant to this paragraph, the Administrative Agent shall distribute such payment to the applicable Issuing Bank or, to the extent that Revolving Lenders have
made payments pursuant to this paragraph to reimburse such Issuing Bank, then to such Revolving Lenders and such Issuing Bank as their interests may appear. Any payment made by a Revolving Lender pursuant to this paragraph to reimburse
an Issuing Bank for an LC Disbursement (other than the funding of an ABR Revolving Borrowing as contemplated above) shall not constitute a Loan and shall not relieve the Borrower of its obligation to reimburse such LC Disbursement. If the
Borrower’s reimbursement of, or obligation to reimburse, any amounts in any Designated Foreign Currency, would subject the Administrative Agent, the applicable Issuing Bank or any Revolving Lender to any stamp duty, ad valorem charge or
similar tax that would not be payable if such reimbursement were made or required to be made in Dollars, the Borrower shall pay the amount of any such tax requested by the Administrative Agent, such Issuing Bank or such Revolving Lender.
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(g)
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Obligations Absolute.
The Borrower’s obligation to reimburse LC Disbursements as provided in paragraph (f) of this Section is absolute, unconditional and irrevocable and shall be performed strictly in accordance with the terms of this Agreement under any and
all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any Letter of Credit or this Agreement, or any term or provision thereof or hereof, (ii) any draft or other document presented under a Letter
of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by an Issuing Bank 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, (iv) any force majeure or other event that under any rule of law or uniform practices to which any Letter of Credit is subject (including Section 3.14 of the ISP)
permits a drawing to be made under such Letter of Credit after the stated expiration date thereof or of the Revolving Commitments or (v) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that
might, but for the provisions of this paragraph, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder. None of the Administrative Agent, the Lenders, the Issuing Banks
or any of their Related Parties shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit, any payment or failure to make any payment thereunder (irrespective of any of
the circumstances referred to in the preceding sentence), any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation of technical terms, any error in translation or any other act, failure to act or other event or circumstance; provided that the foregoing shall not be construed to excuse any Issuing Bank from liability to the Borrower to the extent of any direct damages (as opposed to consequential damages, claims in
respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by such Issuing Bank’s failure to exercise care when determining whether drafts and other documents
presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence, bad faith or willful misconduct on the part of an Issuing Bank (as determined by a court of
competent jurisdiction in a final and nonappealable judgment), such Issuing Bank shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties
agree that, with respect to documents presented that appear on their face to be in substantial compliance with the terms of a Letter of Credit, an Issuing Bank may, in its sole discretion, either accept and make payment upon such
documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of
such Letter of Credit.
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(h)
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Interim Interest.
If an Issuing Bank shall make any LC Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in full on the date such LC Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and
including the date such LC Disbursement is made to but excluding the date that the Borrower reimburses such LC Disbursement in full, (i) in the case of any LC Disbursement denominated in Dollars, and at all times following the conversion
to Dollars of any LC Disbursement made in any Designated Foreign Currency pursuant to paragraph (f) or (n) of this Section, at the rate per annum then applicable to ABR Revolving Loans and (ii) if such LC Disbursement is made in a
Designated Foreign Currency, at all times prior to its conversion to Dollars pursuant to paragraph (f) or (n) of this Section, at a rate equal to the rate reasonably determined by the applicable Issuing Bank to be the cost to such Issuing
Bank of funding such LC Disbursement (which determination shall be conclusive absent manifest error) plus the Applicable Rate applicable to Eurocurrency Revolving Loans at such time; provided that, if the Borrower fails to reimburse such LC Disbursement when due pursuant to paragraph (f) of this Section, then Section 2.12(c) shall apply. Interest accrued pursuant to this
paragraph shall be paid to the Administrative Agent, for the account of the applicable Issuing Bank, except that interest accrued on and after the date of payment by any Revolving Lender pursuant to paragraph (f) of this Section to
reimburse such Issuing Bank for such LC Disbursement shall be for the account of such Lender to the extent of such payment, and shall be payable on demand or, if no demand has been made, on the date on which the Borrower reimburses the
applicable LC Disbursement in full.
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(i)
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Cash Collateralization.
If any Event of Default described in clause (a), (b), (i) or (j) of Article VII shall occur and be continuing, on the Business Day that the Borrower receives notice from the Administrative Agent or the Required Lenders (or, if the
maturity of the Loans has been accelerated, a Majority in Interest of the Revolving Lenders) demanding the deposit of cash collateral pursuant to this paragraph, the Borrower shall deposit in an account with the Administrative Agent, in
the name of the Administrative Agent and for the benefit of the Lenders (the “Collateral Account”), an amount in cash and in the currency of such
Letter of Credit equal to (i) in the case of any Letter of Credit denominated in Dollars, 102% of the LC Exposure as of such date attributable to such Letter of Credit, plus any accrued and unpaid interest thereon, and (ii) in the case of
any Letter of Credit denominated in a Designated Foreign Currency 105% of the LC Exposure as of such date attributable to such Letter of Credit plus any accrued and unpaid interest thereon; provided that the (A) amounts payable in respect of any Letter of Credit denominated in a Designated Foreign Currency in respect of which the Borrower’s reimbursement obligations have been
converted to obligations in Dollars as provided in paragraph (f) or (n) of this Section, and interest accrued thereon, shall be payable in Dollars and (B) the obligation to deposit such cash collateral shall become effective immediately,
and such deposit shall become immediately due and payable, without demand or other notice of any kind, upon the occurrence of any Event of Default with respect to the Borrower described in clause (i) or (j) of Article VII. The Borrower
also shall deposit cash collateral in Dollars in accordance with this paragraph as and to the extent required by Section 2.10(b) or 2.19. Each such deposit shall be held by the Administrative Agent as collateral for the payment and
performance of the obligations of the Borrower under this Agreement. In addition, and without limiting the foregoing or paragraph (c) of this Section, if any LC Exposure remains outstanding after the expiration date specified in said
paragraph (c), the Borrower shall promptly deposit into the Collateral Account an amount in cash and in the currency of such Letter of Credit equal to (i) in the case of any Letter of Credit denominated in Dollars, 102% of the LC Exposure
as of such date attributable to such Letter of Credit, plus any accrued and unpaid interest thereon, and (ii) in the case of any Letter of Credit denominated in a Designated Foreign Currency 105% of the LC Exposure as of such date
attributable to such Letter of Credit plus any accrued and unpaid interest thereon.
The Administrative Agent shall have exclusive dominion and control, including the exclusive right of
withdrawal, over such account. Other than any interest earned on the investment of such deposits, which investments shall be made as mutually agreed by the Administrative Agent and the Borrower and at the Borrower’s risk and expense,
such deposits shall not bear interest. Interest or profits, if any, on such investments shall accumulate in such account. Moneys in such account shall be applied by the Administrative Agent to reimburse each Issuing Bank for LC
Disbursements for which they have not been reimbursed, together with related fees, costs and customary processing charges, and, to the extent not so applied, shall be held for the satisfaction of the reimbursement obligations of the
Borrower for the LC Exposure at such time or, if the maturity of the Loans has been accelerated (but subject to the consent of a Majority in Interest of the Revolving Lenders), be applied to satisfy other obligations of the Borrower under
this Agreement. If the Borrower is required to provide an amount of cash collateral hereunder as a result of the occurrence and continuance of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to
the Borrower within three Business Days after all Events of Default have been cured or waived. If the Borrower is required to provide an amount of cash collateral hereunder pursuant to Section 2.10(b), such amount (to the extent not
applied as aforesaid) shall be returned to the Borrower as and to the extent that, after giving effect to such return, the Aggregate Revolving Exposure would not exceed the Aggregate Revolving Commitment and no Default shall have occurred
and be continuing.
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(j)
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Designation of Additional
Issuing Banks. The Borrower may, at any time and from time to time, with the consent of the Administrative Agent (which consent shall not be unreasonably withheld), designate as additional Issuing Banks one or more
Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as an Issuing Bank hereunder shall be evidenced by an agreement, which shall be in form and substance
reasonably satisfactory to the Administrative Agent and shall specify the LC Commitment of such Issuing Bank, executed by the Borrower, the Administrative Agent and such designated Revolving Lender and, from and after the effective date
of such agreement, (i) such Revolving Lender shall have all the rights and obligations of an Issuing Bank under this Agreement and (ii) references herein to the term “Issuing Bank” shall be deemed to include such Revolving Lender in its
capacity as an issuer of Letters of Credit hereunder.
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(k)
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Termination of an Issuing
Bank. The Borrower may terminate the appointment of any Issuing Bank as an “Issuing Bank” hereunder by providing a written notice thereof to such Issuing Bank, with a copy to the Administrative Agent. Any such termination
shall become effective upon the earlier of (i) such Issuing Bank acknowledging receipt of such notice and (ii) the 10th Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the LC Exposure attributable to Letters of Credit issued by such Issuing Bank (or its Affiliates) shall have been reduced to
zero. At the time any such termination shall become effective, the Borrower shall pay all unpaid fees accrued for the account of the terminated Issuing Bank pursuant to Section 2.11(b). Notwithstanding the effectiveness of any such
termination, the terminated Issuing Bank shall remain a party hereto and shall continue to have all the rights of an Issuing Bank under this Agreement with respect to Letters of Credit issued by it prior to such termination, but shall not
issue any additional Letters of Credit.
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(l)
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Issuing Bank Reports to the
Administrative Agent. Unless otherwise agreed by the Administrative Agent, each Issuing Bank shall, in addition to its notification obligations set forth elsewhere in this Section, report in writing to the Administrative
Agent (i) periodic activity (for such period or recurrent periods as shall be requested by the Administrative Agent) in respect of Letters of Credit issued by such Issuing Bank, including all issuances, extensions, amendments and
renewals, all expirations and cancellations and all disbursements and reimbursements, (ii) reasonably prior to the time that such Issuing Bank issues, amends, renews or extends any Letter of Credit, the date of such issuance, amendment,
renewal or extension, and the currency and stated amount of the Letters of Credit issued, amended, renewed or extended by it and outstanding after giving effect to such issuance, amendment, renewal or extension (and whether the amounts
thereof shall have changed), (iii) on each Business Day on which such Issuing Bank makes any LC Disbursement, the date, currency and amount of such LC Disbursement, (iv) on any Business Day on which the Borrower fails to reimburse an LC
Disbursement required to be reimbursed to such Issuing Bank on such day, the date of such failure and the currency and amount of such LC Disbursement and (v) on any other Business Day, such other information as the Administrative Agent
shall reasonably request as to the Letters of Credit issued by such Issuing Bank.
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(m)
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LC Exposure Determination.
For all purposes of this Agreement, the amount of a Letter of Credit that, by its terms or the terms of any document related thereto, provides for one or more automatic increases in the stated amount thereof shall be deemed to be the
maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at the time of determination.
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(n)
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Conversion. In
the event that the Loans become immediately due and payable on any date pursuant to Article VII, all amounts (i) that the Borrower is at the time or becomes thereafter required to reimburse or otherwise pay to the Administrative Agent in
respect of LC Disbursements made under any Letter of Credit denominated in a Designated Foreign Currency (other than amounts in respect of which the Borrower has deposited cash collateral, if such cash collateral was deposited in the
applicable currency), (ii) that the Revolving Lenders are at the time or become thereafter required to pay to the Administrative Agent (and the Administrative Agent is at the time or becomes thereafter required to distribute to the
applicable Issuing Bank) pursuant to paragraph (f) of this Section in respect of unreimbursed LC Disbursements made under any Letter of Credit denominated in a Designated Foreign Currency and (iii) of each Revolving Lender’s participation
in any Letter of Credit denominated in a Designated Foreign Currency under which an LC Disbursement has been made shall, automatically and with no further action required, be converted into the Dollar Equivalent, calculated using the
Exchange Rate on such date (or in the case of any LC Disbursement made after such date, on the date such LC Disbursement is made), of such amounts. On and after such conversion, all amounts accruing and owed to the Administrative Agent,
any Issuing Bank or any Revolving Lender in respect of the obligations described in this paragraph shall accrue and be payable in Dollars at the rates otherwise applicable hereunder.
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(a)
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Each Lender shall make each Loan to be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 2:00 p.m., Local Time (or in the case of any Loan denominated in a Designated Foreign Currency, noon, Local Time), to the account of the Administrative Agent most recently designated by it for such purpose
for Loans denominated in the currency of such Loan by notice to the Lenders. The Administrative Agent will make such Loans available to the Borrower by promptly remitting the amounts so received, in like funds, to an account of the
Borrower maintained with the Administrative Agent and designated by the Borrower in the applicable Borrowing Request or, in the case of ABR Revolving Loans made to finance the reimbursement of an LC Disbursement as provided in
Section 2.04(f), to the Issuing Bank specified by the Borrower in the applicable Borrowing Request.
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(b)
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Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing (or, in the case of any ABR Borrowing for which notice of such Borrowing has been given by the Borrower on the proposed date of such Borrowing in accordance with Section 2.03, prior to 1:00 p.m., Local Time, on such date) that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with paragraph (a) of this Section and may, in reliance on such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (i) in the case of such Lender, (A) in the case of Loans denominated in dollars, the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation and (B) in the case of Loans denominated in a Designated Foreign Currency, the rate determined by the Administrative Agent to be the cost to it of funding such amount (which determination will be conclusive absent manifest error) and (ii) in the case of the Borrower, the interest rate applicable to (A) in the case of Loans denominated in Dollars, ABR Loans of the applicable Class and (B) in the case of Loans denominated in a Designated Foreign Currency, the interest rate applicable to the subject Loan pursuant to Section 2.12. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan included in such Borrowing. |
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(b)
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To make an election pursuant to this Section, the Borrower shall notify the Administrative Agent of such
election by telephone (other than a request pursuant to this Section with respect to a Borrowing denominated in a Designated Foreign Currency, which request shall be made in writing (including by electronic mail)), electronic mail or
hand delivery of an executed written Interest Election Request by the time that a Borrowing Request would be required under Section 2.03 if the Borrower were requesting a Revolving Borrowing of the Type resulting from such election to
be made on the effective date of such election. Each such telephonic or electronic mail Interest Election Request shall be irrevocable and shall in the case of a telephonic request be confirmed promptly by hand delivery, electronic
mail or facsimile to the Administrative Agent of a written Interest Election Request signed by the Borrower.
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(i)
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the Borrowing to which such Interest Election Request applies and, if different options are being elected
with respect to different portions thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the information to be specified pursuant to clauses (iii) and (iv) below shall be specified for each resulting
Borrowing);
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(ii)
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the effective date of the election made pursuant to such Interest Election Request, which shall be a Business
Day;
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(iv)
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if the resulting Borrowing is to be a Eurocurrency Borrowing, the Interest Period to be applicable thereto
after giving effect to such election, which shall be a period contemplated by the definition of the term “Interest Period”.
|
|
(d)
|
Promptly following receipt of an Interest Election Request in accordance with this Section, the
Administrative Agent shall advise each Lender of the applicable Class of the details thereof and of such Lender’s portion of each resulting Borrowing.
|
|
(e)
|
If the Borrower fails to deliver a timely Interest Election Request with respect to a Eurocurrency Borrowing
prior to the end of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Interest Period such Borrowing shall (i) in the case of a Borrowing denominated in Dollars, be
converted to an ABR Borrowing, and (ii) in the case of a Eurocurrency Borrowing denominated in a Designated Foreign Currency, be continued as a Eurocurrency Borrowing for an additional Interest Period of one month. Notwithstanding any
contrary provision hereof, if an Event of Default under clause (i) or (j) of Article VII has occurred and is continuing with respect to the Borrower, or if any other Event of Default has occurred and is continuing and the Administrative
Agent, at the request of a Majority in Interest of Lenders of any Class, has notified the Borrower of the election to give effect to this sentence on account of such other Event of Default, then, in each such case, so long as such Event
of Default is continuing, (i) no outstanding Borrowing (or Borrowing of the applicable Class, as applicable) denominated in Dollars may be converted to or continued as a Eurocurrency Borrowing, (ii) unless repaid, each Eurocurrency
Borrowing (or Eurocurrency Borrowing of the applicable Class, as applicable) denominated in Dollars shall be converted to an ABR Borrowing at the end of the Interest Period applicable thereto and (iii) unless repaid, each Eurocurrency
Borrowing denominated in a Designated Foreign Currency shall be continued as a Eurocurrency Borrowing with an Interest Period of one month’s duration.
|
|
(b)
|
The Borrower may at any time terminate, or from time to time permanently reduce, the Commitments of any
Class; provided that (i) each partial reduction of the Commitments of any Class shall be in an amount that is an integral multiple of $1,000,000
and not less than $20,000,000 and (ii) the Borrower shall not terminate or reduce the Revolving Commitments if, after giving effect to any concurrent prepayment of the Revolving Loans in accordance with Section 2.10, (A) any Lender’s
Revolving Exposure would exceed its Revolving Commitment of (B) the Aggregate Revolving Exposure would exceed the Aggregate Revolving Commitment.
|
|
(c)
|
The Borrower shall notify the Administrative Agent of any election to terminate or reduce the Commitments
under paragraph (b) of this Section at least three Business Days prior to the effective date of such termination or reduction, specifying the effective date thereof. Promptly following receipt of any such notice, the Administrative Agent
shall advise the Lenders of the applicable Class of the contents thereof. Each notice delivered by the Borrower pursuant to this Section shall be irrevocable; provided
that a notice of termination or reduction of the Revolving Commitments under paragraph (b) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice
may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. Any termination or reduction of the Commitments of any Class shall be permanent. Each
reduction of the Commitments of any Class shall be made ratably among the Lenders in accordance with their respective Commitments of such Class.
|
|
(a)
|
The Borrower hereby unconditionally promises to pay to the Administrative Agent for the account of each
Revolving Lender the then unpaid principal amount of each Revolving Loan of such Lender on the Revolving Maturity Date.
|
|
(b)
|
The records maintained by the Administrative Agent and the Lenders shall be prima facie evidence of the existence and amounts of the obligations of the Borrower
in respect of the Loans, LC Disbursements, interest and fees due or accrued hereunder; provided that the failure of the Administrative Agent or
any Lender to maintain such records or any error therein shall not in any manner affect the obligation of the Borrower to pay any amounts due hereunder in accordance with the terms of this Agreement.
|
|
(c)
|
Any Lender may request that Loans of any Class made by it be evidenced by a promissory note. In such event,
the Borrower shall prepare, execute and deliver to such Lender a promissory note payable to such Lender (or, if requested by such Lender, to such Lender and its registered assigns) and in a form approved by the Administrative Agent.
Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all times (including after assignment pursuant to Section 9.04) be represented by one or more promissory notes in such form payable to the payee named
therein (or, if such promissory note is a registered note, to such payee and its registered assigns).
|
|
(a)
|
The Borrower shall have the right at any time and from time to time to prepay any Borrowing in whole or in
part, without penalty or premium (but subject to the provisions of Section 2.15), in accordance with the requirements of this Section.
|
|
(b)
|
In the event and on each occasion that (i) the Aggregate Revolving Exposure exceeds the Aggregate Revolving
Commitment (other than as a result of any revaluation of the Dollar Equivalent of Revolving Loans on any Calculation Date in accordance with Section 1.06) or (ii) the Aggregate Revolving Exposure exceeds the Aggregate Revolving Commitment
by $5,000,000 or more for five consecutive Business Days solely as a result of any revaluation of the Dollar Equivalent of Revolving Loans on any Calculation Date in accordance with Section 1.06, the Borrower shall prepay Revolving
Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with Section 2.04(i)) in an aggregate amount equal to such excess; provided that no such prepayment shall be required in relation to the foregoing clause (ii) until written notice thereof is given to the Borrower by the Administrative Agent,
whereupon such prepayment shall be due three Business Days thereafter.
|
|
(c)
|
Prior to any prepayment of Borrowings under this Section, the Borrower shall specify the Borrowing or
Borrowings to be prepaid in the notice of such prepayment delivered pursuant to paragraph (d) of this Section.
|
|
(d)
|
The Borrower shall notify the Administrative Agent by telephone (confirmed by hand delivery or facsimile) of
any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Borrowing, not later than 11:00 a.m., New York City time, three Business Days before the date of prepayment or (ii) in the case of prepayment of an ABR Borrowing,
not later than 11:00 a.m., New York City time, one Business Day before the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be
prepaid; provided that if a notice of optional prepayment is given in connection with a conditional notice of termination of the Revolving
Commitments as contemplated by Section 2.07, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07. Promptly following receipt of any such notice, the Administrative Agent
shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in
Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by
accrued interest to the extent required by Section 2.12 together with any additional amounts required pursuant to Section 2.15.
|
|
(a)
|
The Borrower agrees to pay to the Administrative Agent for the account of each Revolving Lender a commitment
fee which shall accrue at the Applicable Rate on the daily unused amount of the Revolving Commitment of such Lender during the period from and including the Effective Date to but excluding the date on which such Revolving Commitment
terminates. Accrued commitment fees in respect of the Revolving Commitments shall be payable in arrears on the last day of March, June, September and December of each year and on the date on which the Revolving Commitments terminate,
commencing on the first such date to occur after the date hereof. All commitment fees shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including the first day but excluding
the last day). For purposes of computing commitment fees, a Revolving Commitment of a Lender shall be deemed to be used to the extent of the outstanding Revolving Loans and LC Exposure of such Lender.
|
|
(b)
|
The Borrower agrees to pay (i) to the Administrative Agent for the account of each Revolving Lender a
participation fee with respect to its participations in each outstanding Letter of Credit, which shall accrue on the daily maximum amount then available to be drawn under such Letter of Credit at the Applicable Rate used to determine the
interest rate applicable to Eurocurrency Revolving Loans, during the period from and including the Effective Date to but excluding the later of the date on which such Lender’s Revolving Commitment terminates and the date on which such
Lender ceases to have any LC Exposure and (ii) to each Issuing Bank for its own account a fronting fee with respect to each Letter of Credit issued by such Issuing Bank, which shall accrue at the rate or rates per annum separately agreed
upon between the Borrower and such Issuing Bank attributable to Letters of Credit issued by such Issuing Bank on the daily maximum amount then available to be drawn under such Letter of Credit, during the period from and including the
Effective Date to but excluding the later of the date of termination of the Revolving Commitments and the date on which there ceases to be any such LC Exposure with respect to Letters of Credit issued by such Issuing Bank, as well as such
Issuing Bank’s standard fees with respect to the issuance, amendment, renewal or extension of any Letter of Credit and other processing fees, and other standard costs and charges, of such Issuing Bank relating to the Letters of Credit as
from time to time in effect. In addition, if, as contemplated by Section 2.04(c), any Letter of Credit is cash collateralized and remains outstanding after the Revolving Maturity Date (or Subsequent Maturity Date, as the case may be),
the Borrower will pay a fee (an “LC Fee”) to the Issuing Bank in respect of such Letter of Credit which shall accrue at the Applicable Rate that
would be used to determine the interest rate applicable to Eurocurrency Revolving Loans (assuming such Loans were outstanding during such period) on the daily amount of the LC Exposure attributable to such Letter of Credit (excluding any
portion thereof attributable to unreimbursed LC Disbursements) during the period from and including the Revolving Maturity Date (or Subsequent Maturity Date, as the case may be) but excluding the date on which such Issuing Bank ceases to
have any LC Exposure in respect of such Letter of Credit. Participation fees, fronting fees and other fees payable to an Issuing Bank in respect of its Letters of Credit accrued through and including the last day of March, June,
September and December of each year shall be payable on the third Business Day following such last day, commencing on the first such date to occur after the Effective Date; provided that all such fees (other than LC Fees) shall be payable on the date on which the Revolving Commitments terminate and any such fees, including LC Fees, accruing after the date on which the Revolving
Commitments terminate shall be payable on demand and, in the case of LC Fees and fronting fees accruing after the Revolving Maturity Date (or Subsequent Maturity Date, as applicable), on the date on which the relevant Issuing Bank ceases
to have LC Exposure in respect of the Letter of Credit in respect of which such fees are payable. Any other fees payable to an Issuing Bank pursuant to this paragraph shall be payable within 10 days after demand. All participation fees,
LC Fees and fronting fees shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day).
|
|
(c)
|
The Borrower agrees to pay to the Administrative Agent, for its own account, fees payable in the amounts and
at the times separately agreed upon between the Borrower and the Administrative Agent.
|
|
(d)
|
All fees payable hereunder shall be paid on the dates due, in immediately available funds, to the
Administrative Agent (or to an Issuing Bank, in the case of fees payable to it) for distribution, in the case of commitment fees and participation fees, to the Revolving Lenders entitled thereto. Fees paid shall not be refundable under
any circumstances.
|
|
(a)
|
The Loans comprising each ABR Borrowing shall bear interest at the Alternate Base Rate plus the Applicable
Rate.
|
|
(b)
|
The Loans comprising each Eurocurrency Borrowing shall bear interest at the Adjusted LIBO Rate for the
Interest Period in effect for such Borrowing plus the Applicable Rate.
|
|
(c)
|
Notwithstanding the foregoing, if any principal of or interest on any Loan or any fee or other amount payable
by the Borrower hereunder is not paid when due, whether at stated maturity, upon acceleration or otherwise, such overdue amount shall bear interest, after as well as before judgment, at a rate per annum equal to (A) in the case of overdue
principal of any Loan, 2.00% per annum plus the rate otherwise applicable to such Loan as provided in the preceding paragraphs of this Section or (B) in the case of any other amount, 2.00% per annum plus the rate applicable to ABR
Revolving Loans as provided in paragraph (a) of this Section. Payment or acceptance of the increased rates of interest provided for in this paragraph (c) is not a permitted alternative to timely payment and shall not constitute a waiver
of any Event of Default or otherwise prejudice or limit any rights or remedies of the Administrative Agent, any Issuing Bank or any Lender.
|
|
(d)
|
Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date for such Loan and, in
the case of a Revolving Loan, upon termination of the Revolving Commitments; provided that (i) interest accrued pursuant to paragraph (c) of this
Section shall be payable on demand, (ii) in the event of any repayment or prepayment of any Loan (other than a prepayment of an ABR Revolving Loan prior to the end of the Revolving Availability Period), accrued interest on the principal
amount repaid or prepaid shall be payable on the date of such repayment or prepayment and (iii) in the event of any conversion of a Eurocurrency Loan prior to the end of the current Interest Period therefor, accrued interest on such Loan
shall be payable on the effective date of such conversion.
|
|
(e)
|
All interest hereunder shall be computed on the basis of a year of 360 days, except that interest computed by
reference to the Alternate Base Rate at times when the Alternate Base Rate is based on the Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap year), and in each case shall be payable for the actual
number of days elapsed (including the first day but excluding the last day). The applicable Alternate Base Rate or Adjusted LIBO Rate shall be determined by the Administrative Agent, and such determination shall be conclusive absent
manifest error.
|
|
(a)
|
If prior to the commencement of any Interest Period for a Eurocurrency Borrowing of any Class: |
|
(i)
|
the Administrative Agent determines (which determination shall be conclusive absent manifest error) that
adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate (including, without limitation, because the LIBO Screen Rate is not available or published on a current basis), for the applicable currency and such
Interest Period; or
|
|
(ii)
|
the Administrative Agent is advised by a Majority in Interest of the Lenders of such Class that the Adjusted
LIBO Rate for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Eurocurrency Borrowing for such Interest Period;
|
|
(b)
|
If at any time the Administrative Agent determines (which determination shall be conclusive absent manifest error) that (i) the circumstances set forth in clause (a)(i) have arisen and such circumstances are unlikely to be temporary or (ii) the circumstances set forth in clause (a)(i) have not arisen but either (w) the supervisor for the administrator of the LIBO Screen Rate has made a public statement that the administrator of the LIBO Screen Rate is insolvent (and there is no successor administrator that will continue publication of the LIBO Screen Rate), (x) the administrator of the LIBO Screen Rate has made a public statement identifying a specific date after which the LIBO Screen Rate will permanently or indefinitely cease to be published by it (and there is no successor administrator that will continue publication of the LIBO Screen Rate), (y) the supervisor for the administrator of the LIBO Screen Rate has made a public statement identifying a specific date after which the LIBO Screen Rate will permanently or indefinitely cease to be published or (z) the supervisor for the administrator of the LIBO Screen Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the LIBO Screen Rate shall no longer be used for determining interest rates for loans, then the Administrative Agent and the Borrower shall endeavor to establish an alternate rate of interest to the LIBO Rate that gives due consideration to the then prevailing market convention for determining a rate of interest for syndicated loans in the United States at such time, and shall enter into an amendment to this Agreement to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable (but for the avoidance of doubt, such related changes shall not include a reduction of the Applicable Rate unless agreed to by all Lenders in accordance with Section 9.02); provided that, if such alternate rate of interest shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement. Notwithstanding anything to the contrary in Section 9.02, such amendment shall become effective without any further action or consent of any other party to this Agreement so long as the Administrative Agent shall not have received, within ten days of the date notice of such alternate rate of interest is provided to the Lenders, a written notice from the Required Lenders of each Class stating that such Required Lenders object to such amendment. Until an alternate rate of interest shall be determined in accordance with this clause (b) (but, in the case of the circumstances described in clause (ii)(w), clause (ii)(x) or clause (ii)(y) of the first sentence of this Section 2.13(b), only to the extent the LIBO Screen Rate for the applicable currency and such Interest Period is not available or published at such time on a current basis), (x) any Interest Election Request that requests the conversion of any Revolving Borrowing to, or continuation of any Revolving Borrowing as, a Eurocurrency Borrowing shall be ineffective and (y) if any Borrowing Request requests a Eurocurrency Revolving Borrowing, such Borrowing shall be made as an ABR Borrowing. |
|
(a)
|
If any Change in Law shall: |
|
(i)
|
impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar
requirement against assets of, deposits with or for the account of, or credit extended by, any Lender or Issuing Bank (except any such reserve requirement reflected in the Adjusted LIBO Rate);
|
|
(ii)
|
impose on any Lender or Issuing Bank or the London interbank market any other condition, cost or expense
(other than Taxes) affecting this Agreement or Eurocurrency Loans made by such Lender or any Letter of Credit or participation therein; or
|
|
(iii)
|
subject any Recipient to any Taxes (other than (A) Indemnified Taxes and (B) Excluded Taxes) on its loans, letters of credit, commitments or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; |
|
(b)
|
If any Lender or Issuing Bank determines that any Change in Law regarding capital requirements or liquidity has had or would have the effect of reducing the rate of return on such Lender’s or Issuing Bank’s capital or on the capital of such Lender’s or Issuing Bank’s holding company, if any, as a consequence of this Agreement, the Commitments of or the Loans made by, or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by such Issuing Bank, to a level below that which such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or Issuing Bank’s policies and the policies of such Lender’s or Issuing Bank’s holding company with respect to capital adequacy and liquidity), then, from time to time upon request of such Lender or Issuing Bank, the Borrower will pay to such Lender or Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company for any such reduction suffered. |
|
(c)
|
A certificate of a Lender or Issuing Bank setting forth the amount or amounts necessary to compensate such Lender or Issuing Bank or its holding company, as the case may be, as specified in paragraph (a) or (b) of this Section delivered to the Borrower shall be conclusive absent manifest error. The Borrower shall pay such Lender or Issuing Bank, as the case may be, the amount shown as due on any such certificate within 10 days after receipt thereof. |
|
(d)
|
Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section for any increased costs or expenses incurred or reductions suffered more than 180 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or expenses or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or expenses or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof. |
|
(e)
|
Notwithstanding any other provision of this Section, no Lender shall demand compensation for any increased cost or reduction pursuant to this Section in respect of any Change in Law described in the proviso to the definition of the term “Change in Law” if it shall not be the general policy or practice of such Lender to demand such compensation in similar circumstances from similarly-situated borrowers (it being understood that this paragraph (e) shall not (i) require any Lender to breach any confidentiality agreement or to disclose any information otherwise required to be held in confidence by it or (ii) limit the discretion of any Lender to waive the right to demand such compensation in any given case). |
|
(a)
|
Withholding of Taxes; Gross-Up. Each payment by a Loan Party under this Agreement or any other Loan Document, whether to the Administrative Agent, any Lender or Issuing Bank or any other Person to which any such payment is owed (each of the foregoing being referred to as a “Recipient”), shall be made without withholding for any Taxes, unless such withholding is required by any law. If any Withholding Agent determines, in its sole discretion exercised in good faith, that it is so required to withhold Taxes, then such Withholding Agent may so withhold and shall timely pay the full amount of withheld Taxes to the relevant Governmental Authority in accordance with applicable law. If such withheld Taxes are Indemnified Taxes, then the amount payable by such Loan Party shall be increased as necessary so that, net of such withholding (including such withholding applicable to additional amounts payable under this Section), the applicable Recipient receives the amount it would have received had no such withholding been made. |
|
(b)
|
Payment of Other Taxes by the Borrower. The Borrower shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law. |
| (c) |
Evidence of Payment. As soon as practicable after any payment of Taxes by a Loan Party to a Governmental Authority pursuant to this Agreement, such Loan Party shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent. |
| (d) |
Indemnification by the Loan Parties. The Loan Parties shall indemnify each Recipient for any Indemnified Taxes that are paid or payable by such Recipient in connection with this Agreement (including amounts paid or payable under this paragraph) and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. The indemnity under this paragraph shall be paid within 20 days after the Recipient delivers to any Loan Party a certificate stating the amount of any Indemnified Taxes so paid or payable by such Recipient and describing in reasonable detail the basis for the indemnification claim. Such certificate shall be conclusive of the amount so paid or payable absent manifest error. Such Recipient shall deliver a copy of such certificate to the Administrative Agent. |
| (e) |
Indemnification by the Lenders. Each Lender shall severally indemnify the Administrative Agent for any Taxes (but, in the case of any Indemnified Taxes, only to the extent that any Loan Party has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Loan Parties to do so) attributable to such Lender that are paid or payable by the Administrative Agent in connection with this Agreement (including any Taxes attributable to such Lender’s failure to comply with the provisions of Section 9.04(c) relating to the maintenance of a Participant Register) and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. The indemnity under this paragraph shall be paid within 10 days after the Administrative Agent delivers to the applicable Lender a certificate stating the amount of Taxes so paid or payable by the Administrative Agent. Such certificate shall be conclusive of the amount so paid or payable absent manifest error. |
| (f) |
Status of Lenders. (i) Any Lender that is entitled to an exemption from, or reduction of, any applicable withholding Tax with respect to any payments under this Agreement shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without, or at a reduced rate of, withholding. In addition, any Lender, if requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to any withholding (including backup withholding) or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in clauses (A) through (E) of paragraph (f)(ii) and paragraph (f)(iii) below) shall not be required if in the Lender’s judgment such completion, execution or submission would materially prejudice the legal or commercial position of such Lender. Upon the reasonable request of the Borrower or the Administrative Agent, any Lender shall update any form or certification previously delivered pursuant to this Section 2.16(f). If any form or certification previously delivered pursuant to this Section 2.16(f) expires or becomes obsolete or inaccurate in any respect with respect to a Lender, such Lender shall promptly (and in any event within 10 days after such expiration, obsolescence or inaccuracy) notify the Borrower and the Administrative Agent in writing of such expiration, obsolescence or inaccuracy and update the form or certification if it is legally eligible to do so. Notwithstanding any other provision of this paragraph, a Lender shall not be required to deliver any form pursuant to this paragraph that it is not legally able to deliver. |
|
(ii)
|
Without limiting the generality of the foregoing, each Lender shall, if it is legally eligible to do so,
deliver to the Borrower and the Administrative Agent (in such number of copies as is reasonably requested by the Borrower and the Administrative Agent) on or prior to the date on which such Lender becomes a party hereto (and from time to
time thereafter upon the reasonable request of the Borrower or the Administrative Agent), duly completed and executed copies of whichever of the following is applicable:
|
|
(A)
|
in the case of a Lender that is a U.S. Person, IRS Form W-9 certifying that such Lender is exempt from U.S.
Federal backup withholding tax;
|
|
(B)
|
in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States of
America is a party (1) with respect to payments of interest under this Agreement, IRS Form W-8BEN or W-8BEN-E establishing an exemption from, or reduction of, U.S. Federal withholding Tax pursuant to the “interest” article of such tax
treaty and (2) with respect to any other applicable payments under this Agreement, IRS Form W-8BEN or W-8BEN-E establishing an exemption from, or reduction of, U.S. Federal withholding Tax pursuant to the “business profits” or “other
income” article of such tax treaty;
|
|
(C)
|
in the case of a Foreign Lender for whom payments under this Agreement constitute income that is effectively
connected with such Lender’s conduct of a trade or business in the United States of America, IRS Form W-8ECI;
|
|
(D)
|
in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section
881(c) of the Code, both (1) IRS Form W‑8BEN or W-8BEN-E and (2) a certificate substantially in the form of Exhibit I-1, Exhibit I-3 or Exhibit I-4 (each, a “U.S.
Tax Certificate”), as applicable, to the effect that such Lender is not (x) a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (y) a “10 percent shareholder” of the Borrower within the meaning of
Section 881(c)(3)(B) of the Code or (z) a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code;
|
|
(E)
|
in the case of a Foreign Lender that is not the beneficial owner of payments made under this Agreement
(including a partnership or a participating Lender), (1) an IRS Form W-8IMY on behalf of itself and (2) the relevant forms prescribed in clauses (A), (B), (C), (D) and (F) of this paragraph (f)(ii) that would be required of each such
beneficial owner or partner of such partnership if such beneficial owner or partner were a Lender; provided that if such Lender is a partnership
and one or more of its partners are claiming the exemption for portfolio interest under Section 881(c) of the Code, such Lender may provide a U.S. Tax Certificate substantially in the form of Exhibit I-2 on behalf of such partners; or
|
|
(F)
|
any other form prescribed by law as a basis for claiming exemption from, or a reduction of, U.S. Federal
withholding Tax, together with such supplementary documentation as shall be necessary to enable the Borrower or the Administrative Agent to determine the amount of Tax (if any) required by law to be withheld.
|
|
(iii)
|
If a payment made to a Lender under this Agreement would be subject to U.S. Federal withholding Tax imposed
by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Withholding Agent,
at the time or times prescribed by law and at such time or times reasonably requested by the Withholding 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 Withholding Agent as may be necessary for the Withholding Agent to comply with its obligations under FATCA, to determine that such Lender has or has not complied with such Lender’s
obligations under FATCA and, as necessary, to determine the amount to deduct and withhold from such payment. Solely for purposes of this Section 2.16(f)(iii), the term “FATCA” shall include any amendments made to FATCA after the date of
this Agreement.
|
| (g) |
Treatment of Certain Refunds. If any Recipient determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 2.16 (including additional amounts paid pursuant to this Section 2.16), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section 2.16 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including any Taxes) of Recipient and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such Recipient, shall repay to such Recipient the amount paid to such Recipient pursuant to the prior sentence (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event such Recipient is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph, in no event will any Recipient be required to pay any amount to any indemnifying party pursuant to this paragraph if such payment would place such Recipient in a less favorable position (on a net after-Tax basis) than such Recipient would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts giving rise to such refund had never been paid. This paragraph shall not be construed to require any Recipient to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person. |
| (h) |
Issuing Bank. For purposes of Sections 2.16(e) and 2.16(f), the term “Lender” shall include each Issuing Bank. |
| (a) |
The Borrower shall make each payment required to be made by it hereunder or under any other Loan Document prior to the time expressly required hereunder or under such other Loan Document for such payment (or, if no such time is expressly required, prior to 12:00 noon, New York City time), on the date when due, in immediately available funds, without any defense, setoff, recoupment or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to such account as may be specified by the Administrative Agent, except that payments required to be made directly to any Issuing Bank shall be so made, payments pursuant to Sections 2.14, 2.15, 2.16 and 9.03 shall be made directly to the Persons entitled thereto and payments pursuant to other Loan Documents shall be made to the Persons specified therein. The Administrative Agent shall distribute any such payment received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment under any Loan Document shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments under each Loan Document shall be made in dollars. |
| (b) |
If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied towards payment of the amounts then due hereunder ratably among the parties entitled thereto, in accordance with the amounts then due to such parties. |
| (c) |
Except to the extent that this Agreement provides for payments to be disproportionately allocated to or retained by a particular Lender or group of Lenders (including in connection with the payment of interest or fees at different rates and the repayment of principal amounts of Loans at different times as a result of Extension Permitted Amendments effected under Section 2.21), each Lender agrees that if it shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the amount of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amounts of principal of and accrued interest on their Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (for the avoidance of doubt, as in effect from time to time) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any Person that is an Eligible Assignee (as such term is defined from time to time). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation. |
| (d) |
Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or Issuing Banks hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or Issuing Banks, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or Issuing Banks, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. |
| (e) |
If any Lender shall fail to make any payment required to be made by it hereunder to or for the account of the Administrative Agent or any Issuing Bank, then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), (i) apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations in respect of such payment until all such unsatisfied obligations have been discharged or (ii) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender pursuant to Sections 2.04(d), 2.04(f), 2.05(b), 2.17(c), 2.17(d) and 9.03(c), in each case in such order as shall be determined by the Administrative Agent in its discretion. |
| (f) |
In the event that any financial statements delivered under Section 5.01(a) or Section 5.01(b), or any Compliance Certificate delivered under Section 5.01(c), shall prove to have been materially inaccurate resulting in a publicly filed restatement with the SEC (other than as a result of the retrospective adoption of a new accounting standard required or permitted under GAAP) (regardless of whether any Commitments are in effect or any amounts are outstanding hereunder when such inaccuracy is discovered), and such inaccuracy shall have resulted in the payment of any interest or fees at rates lower than those that were in fact applicable for any period (based on the actual Leverage Ratio), the Borrower shall pay to the Administrative Agent, for distribution to the Lenders (or former Lenders) as their interests may appear, the accrued interest or fees that should have been paid but were not paid as a result of such misstatement. |
| (a) |
If any Lender requests compensation under Section 2.14, or if the Borrower is required to pay any Indemnified Taxes or any additional amount to any Lender or to any Governmental Authority for the account of any Lender pursuant to Section 2.16, then such Lender shall (at the request of the Borrower) use commercially reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign and delegate its rights and obligations hereunder to another of its offices, branches or Affiliates if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.14 or 2.16, as the case may be, in the future and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable out of pocket costs and expenses incurred by any Lender in connection with any such designation or assignment and delegation. |
| (b) |
If (i) any Lender requests compensation under Section 2.14, (ii) the Borrower is required to pay any Indemnified Taxes or any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.16, (iii) any Lender has become a Defaulting Lender, (iv) any Lender has declined to become an Extending Lender in connection with an Extension Offer made to it pursuant to Section 2.21, or (v) any Lender has failed to consent to a proposed amendment, waiver, discharge or termination that under Section 9.02 requires the consent of all the Lenders (or all the affected Lenders or all the Lenders of the affected Class) and with respect to which the Required Lenders (or, in circumstances where Section 9.02 does not require the consent of the Required Lenders, a Majority in Interest of the Lenders of the affected Class) shall have granted their consent, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 9.04), all its interests, rights and obligations under this Agreement and the other Loan Documents (or, in the case of any such assignment and delegation resulting from a failure to provide a consent, all its interests, rights and obligations under this Agreement and the other Loan Documents as a Lender of a particular Class) to an Eligible Assignee that shall assume such obligations (which may be another Lender, if a Lender accepts such assignment and delegation); provided that (A) the Borrower shall have received the prior written consent of the Administrative Agent (and, if a Revolving Commitment is being assigned, of each Issuing Bank), which consent shall not unreasonably be withheld, (B) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and, if applicable, participations in LC Disbursements, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, (if applicable, in each case only to the extent such amounts relate to its interest as a Lender of a particular Class) from the assignee (in the case of such principal and accrued interest and fees) or the Borrower (in the case of all other amounts), (C) in the case of any such assignment and delegation resulting from a claim for compensation under Section 2.14 or payments required to be made pursuant to Section 2.16, such assignment will result in a reduction in such compensation or payments and (D) in the case of any such assignment and delegation resulting from the failure to provide a consent (including by becoming an Extending Lender), the assignee shall have given such consent and, as a result of such assignment and delegation and any contemporaneous assignments and delegations and consents, the applicable amendment, waiver, discharge or termination can be effected. A Lender shall not be required to make any such assignment and delegation if, prior thereto, as a result of a waiver or consent by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation have ceased to apply. Each party hereto agrees that an assignment and delegation required pursuant to this paragraph may be effected pursuant to an Assignment and Assumption executed by the Borrower, the Administrative Agent and the assignee and that the Lender required to make such assignment and delegation need not be a party thereto. |
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(a)
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commitment fees shall cease to accrue on the unused amount of the Revolving Commitment of such Defaulting
Lender pursuant to Section 2.11(a);
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|
(b)
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the Revolving Commitment and Revolving Exposure of such Defaulting Lender shall not be included in
determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section
9.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall,
except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
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(i)
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all or any part of the LC Exposure of such Defaulting Lender shall be reallocated among the Non-Defaulting
Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the
Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that the
sum of all Non-Defaulting Lenders’ Revolving Exposures plus such Defaulting Lender’s LC Exposure does not exceed the sum of all Non-Defaulting Lenders’ Revolving Commitments; provided that no reallocation under this clause (i) shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting
Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation;
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(ii)
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if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower
shall, without prejudice to any right or remedy available to it hereunder or under law, within one Business Day following notice by the Administrative Agent cash collateralize for the benefit of the Issuing Banks the portion of such
Defaulting Lender’s LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.04(i) for so long as such LC Exposure is outstanding;
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|
(iii)
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if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause
(ii) above, the Borrower shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.11(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC
Exposure is cash collateralized;
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|
(iv)
|
if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above, then
the fees payable to the Lenders pursuant to Sections 2.11(a) and 2.11(b) shall be adjusted to give effect to such reallocation; and
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(v)
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if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized
pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.11(b) with respect to such Defaulting Lender’s LC
Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such
LC Exposure is reallocated and/or cash collateralized; and
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(d)
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so long as such Revolving Lender is a Defaulting Lender, no Issuing Bank shall be required to issue, amend,
renew or extend any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be fully covered by the Revolving Commitments of the Non-Defaulting Lenders and/or cash
collateral provided by the Borrower in accordance with Section 2.19(c), and participating interests in any such issued, amended, reviewed or extended Letter of Credit will be allocated among the Non-Defaulting Lenders in a manner
consistent with Section 2.19(c)(i) (and such Defaulting Lender shall not participate therein).
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(a)
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The Borrower may on one or more occasions, by written notice to the Administrative Agent, request (i) during the Revolving Availability Period, the establishment of Incremental Revolving Commitments, (ii) prior to the Latest Maturity Date, the establishment of Incremental Term Commitments, and (iii) prior to the Latest Maturity Date, the incurrence of Incremental Equivalent Debt (together with Incremental Term Commitments and Incremental Term Loans and Incremental Revolving Commitments and Incremental Revolving Loans made thereunder, “Incremental Extensions of Credit”), in an aggregate amount for all such Incremental Extensions of Credit not in excess of the sum of (A) the Incremental Fixed Amount plus (B) such additional amount as would not cause the Leverage Ratio, computed on a Pro Forma Basis, after giving effect to such Incremental Facility or issuance of Incremental Equivalent Debt and the use of proceeds thereof, as of the last day of the Test Period most recently ended prior to the effective date of the relevant Incremental Facility Amendment or issuance of Incremental Equivalent Debt in respect of which financial statements have been delivered pursuant to Section 5.01(a) or 5.01(b) (or, prior to the delivery of any such financial statements, as of the last day of the most recent Test Period contained in the financial statements referred to in Section 3.04), to exceed, 2.00 to 1.00 (it being understood and agreed that, if the applicable incurrence test in clause (B) is satisfied on a Pro Forma Basis after giving effect to any Incremental Extension of Credit, such Incremental Extension of Credit may be incurred under clause (B) regardless of whether there is capacity under clause (A)); provided that for purposes of such pro forma calculation, (x) for purposes of clause (B), if the proceeds of the relevant Incremental Extension of Credit will be applied to finance a Permitted Acquisition or the irrevocable redemption or repayment of Indebtedness, compliance with the Leverage Ratio on a Pro Forma Basis will, at the option of the Borrower, be determined as of the date on which the binding agreement for such Permitted Acquisition is entered into or the date of irrevocable notice of redemption or repayment, as applicable, and (y) the Revolving Commitments (including, if applicable, any Incremental Revolving Commitments that would become effective in connection with the requested Incremental Facility) and other Incremental Extensions of Credit shall be assumed to be fully funded. Each Class of Incremental Term Loans and Incremental Revolving Commitments and shall be in an integral multiple of $5,000,000 and be in an aggregate principal amount that is not less than $50,000,000; provided that such amount may be less than $50,000,000 if such amount represents all the remaining availability under the aggregate principal amount of Incremental Extensions of Credit set forth above. |
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(b)
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The effectiveness of each Incremental Facility Amendment will be subject to the conditions that (i) at the time of each such request and upon the effectiveness of each Incremental Facility Amendment or incurrence of such Incremental Equivalent Debt, no Event of Default has occurred and is continuing or shall result therefrom (provided that in the event the proceeds of any Incremental Extensions of Credit are used to finance any Permitted Acquisition or other Investment permitted hereunder, such condition precedent set forth in this clause (i) may be waived or limited as agreed between the Borrower and the Lenders providing such Incremental Extension of Credit, without the consent of any other Lenders), (ii) the representations and warranties of the Borrower and each other Loan Party, as applicable, set forth in the Loan Documents would be true and correct in all material respects (or, in the case of representations and warranties qualified as to materiality, in all respects) on and as of the date of, and immediately after giving effect to, the incurrence of such Incremental Extension of Credit (provided that in the event the proceeds of any Incremental Extension of Credit are used to finance any Permitted Acquisition or other Investment permitted hereunder, such condition precedent set forth in this clause (ii) may be limited to (x) customary specified representations and warranties with respect to the Borrower and its Subsidiaries and (y) customary specified acquisition agreement representations with respect to the Person to be acquired), (iii) after giving effect to such Incremental Extension of Credit and the application of the proceeds therefrom (and assuming that the full amount of such Incremental Extension of Credit shall have been funded on such date), the Borrower shall be in compliance on a Pro Forma Basis with the covenants contained in Sections 6.12 and 6.13 recomputed as of the last day of the most recently ended Test Period of the Borrower in respect of which financial statements have been delivered pursuant to Section 5.01(a) or 5.01(b) (or, prior to the delivery of any such financial statements, as of the last day of the most recent Test Period contained in the financial statements referred to in Section 3.04) (provided that in the event the proceeds of any Incremental Extension of Credit are used to finance any Permitted Acquisition or the irrevocable redemption or repayment of Indebtedness, such condition precedent set forth in this clause (iii) shall be required to be satisfied, at the Borrower’s election, as of the date on which the binding agreement for such Permitted Acquisition is entered into or the irrevocable redemption or repayment of Indebtedness, rather than the date of effectiveness, of the applicable Incremental Extension of Credit; provided further that if the Borrower has made the election to measure such compliance on the date on which such a binding agreement for such Permitted Acquisition is entered into or the date of irrevocable notice of redemption or repayment, as applicable, then in connection with the calculation of any financial ratio with respect to any covenant set forth in Article VI, in each case on or following such date and prior to the date on which such acquisition is consummated or the related binding agreement is terminated or such redemption or repayment is made, such financial ratio shall be calculated on a Pro Forma Basis assuming such acquisition, repayment or redemption and any other pro forma events in connection therewith (including the incurrence of Indebtedness and such Incremental Extension of Credit) have been consummated, except to the extent such calculation would result in a lower Leverage Ratio or a higher Interest Coverage Ratio than would apply if such calculation was made without giving effect to such acquisition, the irrevocable redemption or repayment of Indebtedness and other pro forma events in connection therewith or the incurrence of Indebtedness or any Incremental Extension of Credit on a Pro Forma Basis) and (iv) the Borrower shall have delivered a certificate of a Financial Officer to the effect set forth in clauses (i), (ii) and (iii) above, together with reasonably detailed calculations demonstrating compliance with clause (B) of paragraph (a) of this Section and clause (iii) above, (iv), upon the effectiveness of any Incremental Facility, all fees and expenses and cost reimbursements owing in respect of such Incremental Facility to the Administrative Agent and the Incremental Lenders with respect to such Incremental Facility shall have been paid and (v), upon the effectiveness of any Incremental Facility, the Borrower shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as required by the relevant Incremental Facility Amendment and generally consistent with those delivered on the Effective Date under Section 4.01 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 Administrative Agent. |
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(c)
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The terms and conditions of any Incremental Facility and the Loans and other extensions of credit to be made thereunder shall be on terms and conditions and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Facility and shall be set forth in the applicable Incremental Facility Amendment; provided that (i) to the extent such terms and documentation are not consistent with the terms and conditions of this Agreement, such terms and conditions shall be reasonably satisfactory to the Administrative Agent (except to the extent applicable only to periods after the Latest Maturity Date) and (ii) any Incremental Facility shall not have a final maturity date earlier than (but may have a maturity date later than) the Latest Maturity Date at the time of incurrence of such Incremental Facility. Notwithstanding anything to the contrary herein, each Incremental Facility and all extensions of credit thereunder shall be secured by the Collateral on a pari passu basis with the other Loan Document Obligations. |
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(d)
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Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Extension of Credit but shall not constitute an offer to any Lender of an opportunity to participate in each Incremental Extension of Credit unless otherwise specified by the Borrower in such notice. Any additional bank, financial institution, existing Lender or other Person that elects to extend commitments in respect of any Incremental Facility shall be reasonably satisfactory to the Borrower and, in the case of any Incremental Revolving Commitments, the Administrative Agent and each Issuing Bank (such approval not to be unreasonably withheld). Each Incremental Facility will be implemented pursuant to an Incremental Facility Amendment that will constitute an amendment to this Agreement and, as appropriate, the other Loan Documents, which shall be executed by the Borrower, each Incremental Lender party thereto and the Administrative Agent (but will not require the consent of any other Lenders). No Lender shall be obligated to provide any Incremental Extension of Credit unless it so agrees, nor shall any Lender have a right to participation in any Incremental Extension of Credit. Commitments in respect of any Incremental Facility will become Commitments (or in the case of any Incremental Revolving Commitment to be provided by an existing Revolving Lender, an increase in such Lender’s Revolving Commitment) under this Agreement upon the effectiveness of such Incremental Facility Amendment. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement or to any other Loan Document as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section (including to provide for voting provisions applicable to the Incremental Lenders comparable to the provisions of Section 9.02(b)). |
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(e)
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On the date of effectiveness of any Incremental Revolving Commitments, each Revolving Lender shall assign to each Incremental Revolving Lender holding such Incremental Revolving Commitment, and each such Incremental Revolving Lender shall purchase from each Revolving Lender, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans and participations in Letters of Credit outstanding on such date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans and participations in Letters of Credit will be held by all the Revolving Lenders (including such Incremental Revolving Lenders) ratably in accordance with their Applicable Percentages after giving effect to the effectiveness of such Incremental Revolving Commitment. Any assignment pursuant to this paragraph (e) by an existing Revolving Lender of any portion of a Eurocurrency Revolving Loan will be treated as a prepayment of such assigned portion and shall be subject to compensation by the Borrower pursuant to the provisions of Section 2.15 if the date of the effectiveness of the related Incremental Revolving Commitments occurs other than on the last day of the Interest Period relating thereto. |
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(f)
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Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Amendment, each Lender holding an Incremental Term Commitment of any Series shall make a loan to the Borrower in an amount equal to such Incremental Term Commitment on the date specified in such Incremental Facility Amendment. |
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(g)
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The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Borrower referred to in Section 2.20(a) and of the effectiveness of any Incremental Commitments or Incremental Equivalent Debt, in each case advising the Lenders of the details thereof and, in the case of effectiveness of any Incremental Revolving Commitments, of the Applicable Percentages of the Revolving Lenders after giving effect thereto and of the assignments required to be made pursuant to Section 2.20(e). |
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(a)
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The Borrower may on one or more occasions, by written notice to the Administrative Agent, make one or more offers (each, an “Extension Offer”) to all the Lenders of one or more Classes (each Class subject to such an Extension Offer, an “Extension Request Class”) to make one or more Extension Permitted Amendments pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrower. Such notice shall set forth (i) the terms and conditions of the requested Extension Permitted Amendment and (ii) the date on which such Extension Permitted Amendment is requested to become effective (which shall not be less than 10 Business Days or more than 30 Business Days after the date of such notice, unless otherwise agreed to by the Administrative Agent). Extension Permitted Amendments shall become effective only with respect to the Loans and Commitments of the Lenders of the Extension Request Class that accept the applicable Extension Offer (such Lenders, the “Extending Lenders”) and, in the case of any Extending Lender, only with respect to such Lender’s Loans and Commitments of such Extension Request Class as to which such Lender’s acceptance has been made. |
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(b)
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An Extension Permitted Amendment shall be effected pursuant to an Extension Agreement executed and delivered by the Borrower, each applicable Extending Lender and the Administrative Agent; provided that no Extension Permitted Amendment shall become effective unless (i) no Default shall have occurred and be continuing on the date of effectiveness thereof, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct (A) in the case of the representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects, in each case on and as of such date, except in the case of any such representation and warranty that specifically relates to an earlier date, in which case such representation and warranty shall be true and correct in all material respects (or, in the case of the representations and warranties qualified as to materiality, in all respects) on and as of such earlier date, and (iii) the Borrower shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as required by the relevant Extension Agreement and generally consistent with those delivered on the Effective Date under Section 4.01 of the Existing Credit Agreement 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 Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Extension Agreement. Each Extension Agreement may, without the consent of any Lender other than the applicable Extending Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to give effect to the provisions of this Section, including any amendments necessary to treat the applicable Loans and/or Commitments of the accepting Lenders as a new “Class” of loans and/or commitments hereunder; provided that, in the case of any Extension Offer relating to Revolving Commitments or Revolving Loans, except as otherwise agreed to by each Issuing Bank, (i) the allocation of the participation exposure with respect to any then-existing or subsequently issued or made Letter of Credit as between the commitments of such new “Class” and the remaining Revolving Commitments shall be made on a ratable basis as between the commitments of such new “Class” and the remaining Revolving Commitments and (ii) the Revolving Availability Period and the Revolving Maturity Date, as such terms are used in reference to Letters of Credit, may not be extended without the prior written consent of each Issuing Bank. |
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(a)
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The Borrower may, on one or more occasions, by written notice to the Administrative Agent, request the establishment of Refinancing Term Loan Indebtedness or Refinancing Revolving Commitments (provided that at no time shall there be more than a total of four Classes of revolving credit commitments outstanding hereunder). Such notice shall not constitute an offer to any Lender of an opportunity to participate in such refinancing unless otherwise specified by the Borrower in such notice. Each such notice shall specify the date (each, a “Refinancing Closing Date”) on which the Borrower proposes that such Refinancing Term Loan Indebtedness shall be made or on which such Refinancing Revolving Commitments shall become effective, which shall be a date not less than five Business Days after the date on which such notice is delivered to the Administrative Agent. Such notice shall set forth, with respect to any Refinancing Term Loan Indebtedness established thereby in the form of Refinancing Term Loans or with respect to any Refinancing Revolving Commitments (and the Refinancing Revolving Loans of the same Class), to the extent applicable, the following terms thereof: (A) the designation of such Refinancing Term Loans or Refinancing Revolving Commitments and Refinancing Revolving Loans, as applicable, as a new “Class” for purposes hereof, (B) the stated termination and maturity dates applicable to the Refinancing Term Loans or Refinancing Revolving Commitments and Refinancing Revolving Loans, as applicable, of such Class, (C) in the case of Refinancing Term Loans, amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (D) the interest rate or rates applicable to the Refinancing Term Loans or Refinancing Revolving Loans, as applicable, of such Class, (E) the fees applicable to the Refinancing Term Loans or Refinancing Revolving Commitments and Refinancing Revolving Loans, as applicable, of such Class, (F) in the case of Refinancing Term Loans, any original issue discount applicable thereto, (G) the initial Interest Period or Interest Periods applicable to Refinancing Term Loans or Refinancing Revolving Loans, as applicable, of such Class, (H) any voluntary or mandatory commitment reduction or prepayment requirements applicable to Refinancing Term Loans or Refinancing Revolving Commitments and Refinancing Revolving Loans, as applicable, of such Class (which prepayment requirements, in the case of any Refinancing Term Loans, may provide that such Refinancing Term Loans may participate in any mandatory prepayment on a pro rata basis with any Class of existing Term Loans, but may not provide for prepayment requirements that are materially more favorable (as determined by the Borrower in good faith) to the Lenders holding such Refinancing Term Loans than to the Lenders holding such Class of Term Loans) and any restrictions on the voluntary or mandatory reductions or prepayments of Refinancing Term Loans or Refinancing Revolving Commitments and Refinancing Revolving Loans, as applicable, of such Class and (I) any financial maintenance covenant with which the Borrower shall be required to comply (provided that any such financial maintenance covenant for the benefit of any Class of Refinancing Lenders shall also be for the benefit of all other Lenders in respect of all Loans and Commitments outstanding at the time that the applicable Refinancing Facility Agreement becomes effective). |
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(b)
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The Refinancing Commitments will be effected pursuant to one or more Refinancing Facility Agreements, which shall be consistent with the provisions set forth in clause (a) above, executed and delivered by the Borrower, each Refinancing Lender providing such Refinancing Commitment, and the Administrative Agent; provided that no Refinancing Commitments shall become effective unless: |
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(i)
|
no Event of Default shall have occurred and be continuing on the Refinancing Closing Date;
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(ii)
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on the Refinancing Closing Date, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct (A) in the case of the representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects, in each case on and as of such date, except in the case of any such representation and warranty that specifically relates to an earlier date, in which case such representation and warranty shall be true and correct in all material respect (or, in the case of the representations and warranties qualified as to materiality, in all respects) on and as of such earlier date; |
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(iii)
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the Borrower shall have delivered to the Administrative Agent such legal opinions, board resolutions,
secretary’s certificates, officer’s certificates and other documents as required by the relevant Refinancing Facility Agreement and generally consistent with those delivered on the Effective Date under Section 4.01 of the Existing
Credit Agreement 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 Administrative Agent;
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(iv)
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each Refinancing Revolving Lender and each Refinancing Term Lender shall be an Eligible Assignee and, if
not already a Revolving Lender, each Refinancing Revolving Lender (A) shall be reasonably acceptable to the Administrative Agent (such acceptance not to be unreasonably withheld) and (B) shall be approved by each Issuing Bank (such
approval not to be unreasonably withheld);
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(v)
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substantially concurrently with the incurrence of any Refinancing Term Loan Indebtedness, the Borrower
shall repay or prepay then outstanding Incremental Term Loans of the Class or Classes being refinanced (together with any accrued but unpaid interest thereon and any prepayment premium with respect thereto) in an aggregate principal
amount equal to the Net Proceeds of such Refinancing Term Loan Indebtedness; and
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(vi)
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substantially concurrently with the effectiveness of any Refinancing Revolving Commitments, the Borrower
shall reduce then outstanding Revolving Commitments in an aggregate amount equal to the aggregate amount of such Refinancing Revolving Commitments and shall make any prepayments of the outstanding Revolving Loans required pursuant to
Section 2.10 in connection with such reduction, and any such reduction of the Revolving Commitments shall be made ratably among the Revolving Lenders in accordance with their individual Revolving Commitments.
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(c)
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Any Lender or any other Eligible Assignee approached by the Borrower to provide all or a portion of the Refinancing Term Loan Indebtedness or the Refinancing Revolving Commitments may elect or decline, in its sole discretion, to provide any Refinancing Term Loan Indebtedness or Refinancing Revolving Commitments, as the case may be. |
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(d)
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Each Refinancing Facility Agreement shall be binding on the Lenders, the Loan Parties and the other parties hereto and may effect amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect provisions of this Section, including any amendments necessary to treat such Refinancing Term Loans or Refinancing Revolving Commitments (and the Refinancing Revolving Loans of the same Class) as a new “Class” of commitments or loans hereunder. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility Agreement. |
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(b)
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Since December 31, 2018, there has been no event or condition that has resulted, or would reasonably be expected to result, in a material adverse change in the business, assets, operations, performance or condition (financial or otherwise) of the Borrower and the Subsidiaries, taken as a whole. |
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(a)
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The Borrower and each Subsidiary has good title to, or valid leasehold interests in, all its property material to its business, except for minor defects in title that do not interfere with its ability to conduct its business as currently conducted or to utilize such properties for their intended purposes and defects in title that would not reasonably be expected to result in a Material Adverse Effect. |
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(b)
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The Borrower and each Subsidiary owns, or is licensed or otherwise permitted to use, all patents, trademarks, copyrights, licenses, technology, software, domain names, confidential proprietary databases and other Intellectual Property that is necessary for the conduct of its business as currently conducted, and proposed to be conducted, and without conflict with the rights of any other Person, except to the extent any such conflict, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. To the knowledge of the Borrower and the Subsidiaries, no patents, trademarks, copyrights, licenses, technology, software, domain names, or other Intellectual Property used by the Borrower or any Subsidiary in the operation of its business as currently conducted infringes upon the Intellectual Property rights of any other Person, except for any such infringements that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. Except for the Disclosed Matters, no claim or litigation regarding any patents, trademarks, copyrights, licenses, technology, software, domain names, confidential proprietary databases or other Intellectual Property owned, leased or licensed by the Borrower or any Subsidiary is pending against, or, to the knowledge of the Borrower or any Subsidiary, threatened in writing against, the Borrower or any Subsidiary that, individually or in the aggregate, would reasonably be expected to result in a Material Adverse Effect. As of the Effective Date, each patent, trademark, copyright, license, technology, software, domain name, or other Intellectual Property that, individually or in the aggregate, is material to the business of the Borrower and the Subsidiaries is owned or licensed or otherwise permitted to be used, as the case may be, by the Borrower or a Subsidiary. |
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(a)
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Except for the Disclosed Matters, there are no actions, suits or proceedings by or before any arbitrator or Governmental Authority pending against the Borrower or any Subsidiary or, to the knowledge of the Borrower or any such Subsidiary based on written notice received by it, threatened against or affecting the Borrower or any such Subsidiary (i) as to which there is a reasonable possibility of an adverse determination and that, if adversely determined would reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect or (ii) that involve any of the Loan Documents or the Transactions. |
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(b)
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Except for the Disclosed Matters and except with respect to any matters that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect, none of the Borrower or any Subsidiary (i) has failed to comply with any Environmental Law or to obtain, maintain or comply with any permit, license or other approval required under any Environmental Law, (ii) has become subject to any Environmental Liability, (iii) has received notice of any claim with respect to any Environmental Liability or (iv) knows of any basis for any Environmental Liability. |
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(a)
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Each Plan is in compliance with the applicable provisions of ERISA and the Code and the regulations and published interpretations thereunder, except as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. No ERISA Events have occurred or are reasonably expected to occur that would, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. The present value of all benefit obligations under each Plan (based on the assumptions used for purposes of Accounting Standards Codification Topic 715) did not, individually or in the aggregate, as of the last annual valuation date applicable thereto, exceed the fair market value of the assets of such Plan or of all underfunded Plans (as applicable) by an amount that, if required to be paid as of such date by the Borrower or its ERISA Affiliates, would reasonably be expected to have a Material Adverse Effect. |
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(b)
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As of the Effective Date, there are no strikes or lockouts against or affecting the Borrower or any Subsidiary pending or, to their knowledge, threatened. The hours worked by and payments made to employees of the Borrower and the Subsidiaries are not in violation in any material respect or in respect of any material amount under the Fair Labor Standards Act or any other applicable Federal, state, local or foreign law relating to such matters, except to the extent such violation would not reasonably be expected to have a Material Adverse Effect. All material payments due from the Borrower or any Subsidiary, or for which any claim may be made against the Borrower or any Subsidiary, on account of wages, have been paid or accrued as liabilities on the books of the Borrower or such Subsidiary. The consummation of the Transactions will not give rise to any right of termination or right of renegotiation on the part of any union under any collective bargaining agreement under which the Borrower or any Subsidiary is bound, except to the extent such violation would not reasonably be expected to have a Material Adverse Effect. |
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(c)
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None of the Borrower or any of its Subsidiaries is an entity deemed to hold “plan assets” (within the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA). |
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(a)
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Schedule 3.11A to the Disclosure Letter sets forth, as of the Effective Date, the name and jurisdiction of organization of, and the percentage of each class of Equity Interests owned by the Borrower or any Subsidiary in, (i) each Subsidiary and (ii) each joint venture in which the Borrower or any Subsidiary owns any Equity Interests, and identifies each Material Subsidiary and each Subsidiary that would be a Material Subsidiary but for the fact that it is an Excluded Subsidiary. The Equity Interests in each Material Subsidiary have been duly authorized and validly issued and are fully paid and, in the case of each Material Domestic Subsidiary, non-assessable. Except as set forth on Schedule 3.11A to the Disclosure Letter, as of the Effective Date, there is no existing option, warrant, call, right, commitment or other agreement to which any Subsidiary is a party requiring, and there are no Equity Interests in any Subsidiary outstanding that upon exercise, conversion or exchange would require, the issuance by such Subsidiary of any additional Equity Interests or other securities exercisable for, convertible into, exchangeable for or evidencing the right to subscribe for or purchase any Equity Interests in such Subsidiary. |
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(b)
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Schedule 3.11B to the Disclosure Letter sets forth, as of the Effective Date, all outstanding Disqualified Equity Interests, if any, in the Borrower or any Subsidiary, including the number, date of issuance and the record holder of such Disqualified Equity Interests. |
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(a)
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The Collateral Agreement, upon execution and delivery thereof by the parties thereto, creates in favor of the Administrative Agent, for the benefit of the Secured Parties, a valid and enforceable security interest in the Collateral (as defined therein) and (i) when the certificates representing the Collateral (as defined therein) constituting certificated securities (as defined in the Uniform Commercial Code) are delivered to (and maintained by) the Administrative Agent in the State of New York, together with instruments of transfer duly endorsed in blank, the security interest created under the Collateral Agreement will constitute a fully perfected security interest in all right, title and interest of the pledgors thereunder in such Collateral, prior and superior to the rights of any other Person, and (ii) when financing statements in appropriate form are filed in the applicable filing offices, the security interest created under the Collateral Agreement will constitute a fully perfected security interest in all right, title and interest of the Loan Parties in the Collateral (as defined therein) to the extent perfection can be obtained by filing Uniform Commercial Code financing statements, prior and superior to the rights of any other Person, except to the extent permitted by this Agreement in respect of rights secured by Liens permitted under Section 6.02. |
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(b)
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Upon the recordation of the IP Security Agreements with the United States Patent and Trademark Office or the United States Copyright Office, as applicable, and the filing of the financing statements referred to in paragraph (a) of this Section, the security interest created under the Collateral Agreement will constitute a fully perfected security interest in all right, title and interest of the Loan Parties in the Intellectual Property in which a security interest may be perfected by filing in the United States of America, in each case prior and superior in right to any other Person, but subject to Liens permitted under Section 6.02 (it being understood that subsequent recordings in the United States Patent and Trademark Office or the United States Copyright Office may be necessary to perfect a security interest in Intellectual Property acquired by the Loan Parties after the Effective Date). |
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(c)
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Each Security Document, other than any Security Document referred to in the preceding paragraphs of this Section, upon execution and delivery thereof by the parties thereto and the making of the filings and taking of the other actions provided for therein, will be effective under applicable law to create in favor of the Administrative Agent, for the benefit of the Secured Parties, a valid and enforceable security interest in the Collateral subject thereto, and will constitute a fully perfected security interest in all right, title and interest of the Loan Parties in the Collateral subject thereto, prior and superior to the rights of any other Person, except for Liens permitted under Section 6.02. |
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(a)
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The Administrative Agent shall have received from each party hereto either (i) a counterpart of this
Agreement signed on behalf of such party or (ii) evidence satisfactory to the Administrative Agent (which may include a facsimile transmission) that such party has signed a counterpart of this Agreement.
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(b)
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The Administrative Agent shall have received a favorable written opinion (addressed to the Administrative
Agent, the Lenders and the Issuing Banks and dated the Effective Date) of Pepper Hamilton LLP, counsel for the Borrower, in form and substance reasonably satisfactory to the Administrative Agent.
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(c)
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The Administrative Agent shall have received such documents and certificates as the Administrative Agent
may reasonably request relating to the organization, existence and good standing of each Loan Party, the authorization of the Transactions and any other legal matters relating to the Loan Parties, the Loan Documents or the Transactions,
all in form and substance reasonably satisfactory to the Administrative Agent.
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(d)
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The Administrative Agent shall have received a certificate, dated the Effective Date and signed by the
chief executive officer or a Financial Officer of the Borrower, confirming compliance with the conditions set forth in paragraphs (a) and (b) of Section 4.02.
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(e)
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The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the Effective Date, including, to the extent invoiced, payment or reimbursement of all fees and expenses (including reasonable fees, charges and disbursements of counsel) required to be paid or reimbursed by any Loan Party under the Engagement Letter or any Loan Document (including the Existing Credit Agreement). |
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(f)
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The Collateral and Guarantee Requirement shall have been satisfied. The Administrative Agent shall have
received a completed Perfection Certificate, dated the Effective Date and signed by an executive officer or a Financial Officer of the Borrower, together with all attachments contemplated thereby, including the results of a search of
the Uniform Commercial Code (or equivalent) filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificate and copies of the financing statements (or similar documents) disclosed by such
search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted under Section 6.02 or have been, or substantially contemporaneously with
the initial funding of Loans on the Effective Date will be, released.
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(g)
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The Lenders shall have received the financial statements, opinions and certificates referred to in
Section 3.04.
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(h)
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The principal of and accrued and unpaid interest on all outstanding loans and letter of credit
disbursements under the Existing Credit Agreement, and all accrued and unpaid fees and cost reimbursements payable under the Existing Credit Agreement (excluding, for the avoidance of doubt, any such amounts under any Existing Letters
of Credit), shall have been (or, substantially simultaneously with the effectiveness of this Agreement and the making of Loans hereunder on the Effective Date, shall be) paid in full, and the Administrative Agent shall have received
evidence reasonably satisfactory to it of such payment and the release of all guarantees and collateral securing obligations thereunder. Immediately after giving effect to the Transactions, neither the Borrower nor any Subsidiary shall
have outstanding any shares of preferred stock or other preferred Equity Interests or any Indebtedness, other than (i) Indebtedness incurred under the Loan Documents, (ii) Indebtedness set forth on Schedule 6.01 to the Disclosure Letter
and (iii) preferred Equity Interests in Foreign Subsidiaries issued in compliance with Section 6.01(b) hereof to other Foreign Subsidiaries.
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(i)
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The Administrative Agent shall have received a certificate, dated the Effective Date and signed by a
Financial Officer of the Borrower, as to the solvency of the Loan Parties as of the Effective Date on a consolidated basis after giving effect to the Transactions, in form and substance reasonably satisfactory to the Administrative
Agent.
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(j)
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The Lenders shall have received all documentation and other information required by bank regulatory
authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act that shall have been requested in writing (which may be e-mail) at least 10 days prior to the Effective
Date, and a Beneficial Ownership Certification from the Borrower and each other Loan Party, if any, that is a “legal entity customer” under the Beneficial Ownership Regulation.
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(k)
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The Administrative Agent shall have received evidence that the insurance required by Section 5.08 is in
effect, together with endorsements naming the Administrative Agent, for the benefit of the Secured Parties, as additional insured and loss payee thereunder to the extent required under Section 5.08.
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(a)
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The representations and warranties of each Loan Party set forth in the Loan Documents shall be true and
correct (i) in the case of the representations and warranties qualified as to materiality, in all respects and (ii) otherwise, in all material respects, in each case on and as of the date of such Borrowing or the date of issuance,
amendment, renewal or extension of such Letter of Credit, as applicable, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be true and
correct in all material respects (or in all respects, as applicable) on and as of such prior date.
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(b)
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At the time of and immediately after giving effect to such Borrowing or the issuance, amendment, renewal or
extension of such Letter of Credit, as applicable, no Default or Event of Default shall have occurred and be continuing.
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(c)
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The Borrower shall make a Borrowing Request in accordance with Section 2.03 or request a Letter of Credit
in accordance with Section 2.04 hereto.
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(a)
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within 90 days after the end of each fiscal year of the Borrower (or, so long as the Borrower shall be
subject to periodic reporting obligations under the Exchange Act, by the date that the Annual Report on Form 10-K of the Borrower for such fiscal year would be required to be filed under the rules and regulations of the SEC, giving
effect to any automatic extension available thereunder for the filing of such form), its audited consolidated balance sheet and related statements of operations, comprehensive income, stockholders’ equity and cash flows as of the end of
and for such fiscal year, setting forth in each case in comparative form the figures for the prior fiscal year, all audited by and accompanied by the opinion of Ernst & Young LLP or another independent registered public accounting
firm of recognized national standing (without a “going concern” or like qualification or exception and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements
present fairly, in all material respects, the financial position, results of operations and cash flows of the Borrower and its consolidated Subsidiaries on a consolidated basis as of the end of and for such year in accordance with GAAP
and accompanied by a narrative report describing the financial position, results of operations and cash flows of the Borrower and the consolidated Subsidiaries;
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(b)
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within 45 days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower
(or, so long as the Borrower shall be subject to periodic reporting obligations under the Exchange Act, by the date that the Quarterly Report on Form 10-Q of the Borrower for such fiscal quarter would be required to be filed under the
rules and regulations of the SEC, giving effect to any automatic extension available thereunder for the filing of such form), its consolidated balance sheet and related consolidated statements of operations, comprehensive income,
stockholders’ equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or,
in the case of the balance sheet, as of the end of) the prior fiscal year, all in reasonable detail, certified by a Financial Officer of the Borrower as presenting fairly, in all material respects, the financial position, results of
operations and cash flows of the Borrower and its consolidated Subsidiaries on a consolidated basis as of the end of and for such fiscal quarter and such portion of the fiscal year in accordance with GAAP, subject to normal year-end
adjustments and the absence of certain footnotes;
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(c)
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on the date of delivery of financial statements under clause (a) or (b) above, a completed Compliance
Certificate signed by a Financial Officer of the Borrower, (i) certifying as to whether a Default has occurred and, if a Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect
thereto, (ii) setting forth reasonably detailed calculations, demonstrating compliance with Section 6.12 and Section 6.13 and computing each of the Interest Coverage Ratio and the Leverage Ratio as of the last day of the fiscal period
covered by such financial statements, (iii) stating whether any material change in GAAP or in the application thereof has occurred since the date of the consolidated balance sheet of the Borrower most recently theretofore delivered
under clause (a) or (b) above (or, prior to the first such delivery, referred to in Section 3.04) and, if any such change has occurred, specifying the effect of such change on the financial statements (including those for the prior
periods) accompanying such certificate, (iv) certifying that all notices required to be provided under Sections 5.03 and 5.04 have been provided, (v) in the case of any delivery of financial statements under clause (a) above, setting
forth reasonably detailed calculations as of the last day of the fiscal year covered by such financial statements with respect to which Subsidiaries are Material Subsidiaries based on the information contained in such financial
statements and identifying each Subsidiary, if any, that has automatically been designated a Material Domestic Subsidiary in order to satisfy the condition set forth in the definition of the term “Material Domestic Subsidiary” and (vi)
identifying, as of the last day of the most recent fiscal quarter covered by such financial statements, each Person that has become a Domestic Subsidiary during such fiscal quarter and specifying whether that Subsidiary is an Excluded
Subsidiary;
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(d)
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promptly after any request therefor by the Administrative Agent or any Lender, copies of (i) any documents
described in Section 101(k)(1) of ERISA that the Borrower or any of its ERISA Affiliates may request with respect to any Multiemployer Plan and (ii) any notices described in Section 101(l)(1) of ERISA that the Borrower or any of its
ERISA Affiliates may request with respect to any Multiemployer Plan; provided that if the Borrower or any of its ERISA Affiliates has not
requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan as of the date that the Administrative Agent or a Lender makes a request for such documents from the Borrower, the Borrower or
the applicable ERISA Affiliate shall promptly make a request for such documents and notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof; and
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(e)
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promptly after any request therefor, such other non-privileged information regarding the operations,
business affairs, assets, liabilities (including contingent liabilities) and financial condition of the Borrower or any Subsidiary, or compliance with the terms of any Loan Document, including information regarding any Loan Party, in
order to comply with ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and the Beneficial Ownership Regulation, as the Administrative Agent or any
Lender may reasonably request.
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(a)
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the occurrence of any Default;
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(b)
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the filing or commencement of any action, suit or proceeding by or before any arbitrator or Governmental
Authority against or, to the knowledge of a Financial Officer or another executive officer of the Borrower, affecting the Borrower or any Subsidiary, or any adverse development in any such pending action, suit or proceeding not
previously disclosed in writing by the Borrower to the Administrative Agent, that in each case would reasonably be expected to result in a Material Adverse Effect or that in any manner questions the validity of any Loan Document;
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(c)
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the occurrence of any ERISA Event that, alone or together with any other ERISA Events that have occurred,
would reasonably be expected to result in a Material Adverse Effect;
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(d)
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any change in the information provided in any Beneficial Ownership Certification that would result in a
change to the list of beneficial owners identified in such Beneficial Ownership Certification;
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(e)
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the occurrence of any event that has resulted in any material portion of the Article 9 Collateral (as
defined in the Collateral Agreement) owned or held by any Loan Party being damaged, destroyed or subject to condemnation; and
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(f)
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any other development that has resulted, or would reasonably be expected to result, in a Material Adverse
Effect.
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(a)
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Without limiting the effect of Section 9.14, the Borrower will furnish to the Administrative Agent prompt (and in any event within 20 Business Days of the occurrence thereof) written notice of any change in (i) the legal name of any Loan Party, as set forth in its organizational documents, (ii) the jurisdiction of organization or the form of organization of any Loan Party (including as a result of any merger or consolidation), (iii) the location of the chief executive office of any Loan Party or (iv) the organizational identification number, if any, or, with respect to any Loan Party organized under the laws of a jurisdiction that requires such information to be set forth on the face of a Uniform Commercial Code financing statement, the federal taxpayer identification number of such Loan Party. |
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(b)
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Without limiting the effect of Section 9.14, at the time of delivery of financial statements pursuant to Section 5.01(a) or (b), the Borrower shall deliver to the Administrative Agent a completed Supplemental Perfection Certificate, signed by a Financial Officer of the Borrower, (i) setting forth the information required pursuant to the Supplemental Perfection Certificate and indicating any changes in such information from the most recent Supplemental Perfection Certificate delivered pursuant to this Section (or, prior to the first delivery of a Supplemental Perfection Certificate, from the Perfection Certificate delivered on the Effective Date) or (ii) certifying that there has been no change in such information from the most recent Supplemental Perfection Certificate delivered pursuant to this Section (or, prior to the first delivery of a Supplemental Perfection Certificate, from the Perfection Certificate delivered on the Effective Date). |
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(a)
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The Borrower and each Subsidiary will comply with all Requirements of Law, including Environmental Laws and ERISA, except where the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. |
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(b)
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The Borrower will maintain in effect and enforce policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with applicable Anti-Corruption Laws and Sanctions. |
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(b)
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The Borrower will not request any Borrowing or Letter of Credit, and the Borrower shall not use, and shall procure that its Subsidiaries and its or their respective directors, officers, employees and, to the knowledge of the Borrower, agents shall not use, the proceeds of any Borrowing or Letter of Credit (A) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, (B) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country (unless otherwise permissible under Sanctions), to the extent such activities, businesses or transaction would be prohibited by Sanctions if conducted by a corporation incorporated in the United States or in a European Union member state, or (C) in any manner that would result in the violation of any Sanctions applicable to any party hereto |
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(ii)
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Indebtedness existing on the Effective Date and set forth on Schedule 6.01 to the Disclosure Letter and
Refinancing Indebtedness in respect thereof;
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(iii)
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Indebtedness of the Borrower to any Subsidiary or any Subsidiary to the Borrower or any other Subsidiary; provided that (A) such Indebtedness shall not have been transferred to any Person other than the Borrower or any Subsidiary, (B) any such
Indebtedness owing by any Loan Party to any Subsidiary that is not a Loan Party shall be unsecured and subordinated in right of payment to the Loan Document Obligations in accordance with the provisions of the Global Intercompany Note,
(C) any such Indebtedness owing by any Subsidiary that is not a Loan Party to any Loan Party shall be incurred in compliance with Section 6.04;
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(iv)
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Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the
Borrower or any other Subsidiary; provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (ii)), (B)
Guarantees by any Loan Party of such Indebtedness of any Subsidiary that is not a Subsidiary Loan Party shall be incurred in compliance with Section 6.04, (C) Guarantees permitted under this clause (iv) shall be subordinated to the
Obligations of the applicable Subsidiary to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations;
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(v)
|
Indebtedness of the Borrower or any Subsidiary (A) incurred to finance the acquisition, construction or
improvement of any fixed or capital assets, including Finance Lease Obligations, provided that such Indebtedness is incurred prior to or within
180 days after such acquisition or the completion of such construction or improvement and the principal amount of such Indebtedness does not exceed the cost of acquiring, constructing or improving such fixed or capital assets or
(B) assumed in connection with the acquisition of any fixed or capital assets or secured by a Lien on such assets prior to the acquisition thereof, and Refinancing Indebtedness in respect of any of the foregoing; provided that the aggregate outstanding principal amount of Indebtedness incurred in reliance on this clause (v) shall not at any time of incurrence
exceed the greater of (x) $110,000,000 and (y) 10% of Consolidated Tangible Net Worth as of the last day of the fiscal quarter, if any, of the Borrower most recently ended for which financial statements shall have been delivered
pursuant to Section 5.01(a) or 5.01(b);
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(vi)
|
Permitted Acquired Debt; provided
that the aggregate outstanding principal amount of Indebtedness incurred in reliance on this clause (vi) shall not at any time of incurrence exceed the greater of (x) $110,000,000 and (y) 10% of Consolidated Tangible Net Worth as of the
last day of the fiscal quarter, if any, of the Borrower most recently ended for which financial statements shall have been delivered pursuant to Section 5.01(a) or 5.01(b); provided, however, that Permitted Acquired Debt shall be permitted to be incurred notwithstanding the foregoing
limitations if after giving effect to the acquisition of the obligor in respect thereof or the assumption by any Subsidiary of such Permitted Acquired Debt (A) the Borrower shall be in compliance on a Pro Forma Basis with the financial
covenants under Sections 6.12 and 6.13 for the most recent Test Period prior to such time for which financial statements shall have been delivered pursuant to Section 5.01(a) or 5.01(b) (or, prior to the delivery of any such financial
statements, for the most recent Test Period contained in the financial statements referred to in Section 3.04) and (B) such Permitted Acquired Debt is repaid within 90 days after the closing of the related acquisition;
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(vii)
|
Indebtedness of Foreign Subsidiaries; provided that the aggregate outstanding principal amount of Indebtedness incurred in reliance on this clause (vii) shall not at any time of incurrence exceed the greater of (x) $110,000,000 and (y) 10% of
Consolidated Tangible Net Worth as of the last day of the fiscal quarter, if any, of the Borrower most recently ended for which financial statements shall have been delivered pursuant to Section 5.01(a) or 5.01(b);
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(viii)
|
Indebtedness of the Borrower or Subsidiaries in respect of Cash Management Services incurred in the
ordinary course of business; provided that, except in the case of Indebtedness in respect of Cash Management Services consisting of credit card
and other card services, such Indebtedness shall be repaid in full within 15 Business Days of the incurrence thereof;
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(ix)
|
(A) Indebtedness in respect of letters of credit, surety and performance bonds, bank guarantees, appeal
bonds, performance and completion guarantees and similar instruments issued for the account of the Borrower or any Subsidiary in the ordinary course of business and only to backstop or support obligations customarily requiring such
instruments to be provided and (B) Indebtedness of the type referred to in clause (f) of the definition thereof securing judgments, decrees, attachments or awards that do not constitute an Event of Default under clause (a) of Article
VII;
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(x)
|
Indebtedness of the Borrower or any Subsidiary in the form of purchase price adjustments, earn-outs,
indemnification obligations, non-competition agreements or other arrangements representing acquisition consideration or deferred payments of a similar nature incurred in connection with any Permitted Acquisition or any other Investment
permitted by Section 6.04;
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(xi)
|
Incremental Equivalent Debt; provided that the aggregate principal amount of such Incremental Equivalent
Debt issued in accordance with this clause (xi) shall not exceed the amount permitted under Section 2.20 and the conditions that apply to issuance of such Incremental Equivalent Debt set forth in Section 2.20 shall be satisfied;
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(xii)
|
Refinancing Term Loan Indebtedness or Refinancing Revolving Commitments; provided that the Net Proceeds from such Indebtedness are applied to make the prepayments or reductions, as applicable, required under Section 2.22, and the requirements
with respect to such Indebtedness or Commitments set forth in Section 2.22 shall be satisfied;
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(xiii)
|
Indebtedness owed to any Person (including obligations in respect of letters of credit for the benefit of
such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in
the ordinary course of business;
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(xv)
|
Indebtedness in the form of (x) Guarantees of loans and advances permitted by Section 6.04(b)(xi) and (y)
reimbursements owed to officers, directors, consultants and employees in the ordinary course of business;
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(xvi)
|
Permitted Subordinated Indebtedness, provided that, after giving effect to the incurrence thereof, the Borrower shall be in compliance with the covenants set forth in Section 6.12 and Section 6.13 on a Pro Forma Basis and Refinancing Indebtedness in
respect thereof;
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(xvii)
|
Permitted Senior Unsecured Indebtedness, provided that, immediately before and after giving effect to the incurrence thereof, the Borrower shall be in compliance with the covenants set forth in Section 6.12 and Section 6.13 on a Pro Forma Basis (provided that, for purposes of pro forma compliance with Section 6.12, the maximum permitted Leverage Ratio shall be deemed to be decreased by 0.25
to 1.00 from the otherwise then applicable level) and Refinancing Indebtedness in respect thereof;
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(xviii)
|
all premiums (if any), interest (including post-petition interest), fees, expenses, charges and additional
or contingent interest on obligations described in clauses (i) through (xvii) above and clause (xx) below;
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(xix)
|
Indebtedness in respect of Third Party Interests issued by Securitization Vehicles in Securitizations
permitted by Section 6.05 and Indebtedness consisting of representations, warranties, covenants and indemnities made by, and repurchase and other obligations of, a Foreign Subsidiary in connection with Securitizations permitted by
Section 6.05; provided that such representations, warranties, covenants, indemnities and repurchase and other obligations are of the type
customarily included in securitizations of accounts receivable intended to constitute true sales of such accounts receivable to a securitization vehicle; and
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(xx)
|
other Indebtedness of any Loan Party; provided that the aggregate outstanding principal amount of Indebtedness incurred in reliance on this clause (xiv) shall not at any time of incurrence exceed the greater of (x) $110,000,000 and (y) 10% of
Consolidated Tangible Net Worth as of the last day of the fiscal quarter, if any, of the Borrower most recently ended for which financial statements shall have been delivered pursuant to Section 5.01(a) or 5.01(b).
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(b)
|
Neither the Borrower nor any Subsidiary will issue any preferred stock or other preferred Equity Interests; provided that (i) the Borrower may issue preferred stock or other preferred Equity Interests that, in each case, do not constitute Disqualified Equity Interests, (ii) any Subsidiary may issue preferred stock or other preferred Equity Interests issued to and at all times held by the Borrower or a wholly-owned Subsidiary and (iii) Securitization Vehicles may issue Third Party Interests. |
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(a)
|
The Borrower will not, nor will it permit any Subsidiary to, create, incur, assume or permit to exist any Lien on any asset now owned or hereafter
acquired by it, or assign or sell any income or revenues (including accounts receivable and royalties) or rights in respect of any thereof, except:
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(i)
|
Liens created under the Loan Documents (including Liens securing any Incremental Facility) and any Liens on
cash or deposits granted in favor of any Issuing Bank to cash collateralize any Defaulting Lender’s participation in Letters of Credit as contemplated by this Agreement;
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(iii)
|
any Lien on any asset of the Borrower or any Subsidiary existing on the Effective Date and set forth on
Schedule 6.02 to the Disclosure Letter; provided that (A) such Lien shall not apply to any other asset of the Borrower or any Subsidiary (other
than (x) assets financed by the same financing source pursuant to the same financing scheme, (y) after-acquired property that is affixed or incorporated into the property covered by such Lien and (z) proceeds and products of the property
covered by such Lien) and (B) such Lien shall secure only those obligations that it secures on the date hereof and any extensions, renewals, replacements and refinancings thereof that, to the extent constituting Indebtedness, are
permitted under Section 6.01 as Refinancing Indebtedness in respect thereof;
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(iv)
|
any Lien existing on any asset prior to the acquisition thereof by the Borrower or any Subsidiary or existing
on any asset of any Person that becomes a Subsidiary (or of any Person not previously a Subsidiary that is merged or consolidated with or into the Borrower or a Subsidiary in a transaction permitted hereunder) after the date hereof prior
to the time such Person becomes a Subsidiary (or is so merged or consolidated); provided that (A) such Lien is not created in contemplation of or
in connection with such acquisition or such Person becoming a Subsidiary (or such merger or consolidation), (B) such Lien shall not apply to any other asset of the Borrower or any Subsidiary (other than (w) assets financed by the same
financing source pursuant to the same financing scheme, (x) after-acquired property that is affixed or incorporated into the property covered by such Lien, (y) proceeds and products of the property covered by such Lien and (z) in the case
of any such merger or consolidation, the assets of any Subsidiary that is a party thereto) and (C) such Lien shall secure only those obligations that it secures on the date of such acquisition or the date such Person becomes a Subsidiary
(or is so merged or consolidated), and any extensions, renewals, replacements and refinancings thereof that do not increase the outstanding principal amount thereof and, in the case of any such obligations constituting Indebtedness, that
are permitted under Section 6.01 as Refinancing Indebtedness in respect thereof;
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(v)
|
Liens on fixed or capital assets acquired, constructed or improved (including any assets made the subject of
a Finance Lease Obligation incurred) by the Borrower or any Subsidiary; provided that (x) such Liens secure only Indebtedness permitted by clause
(v) of Section 6.01 and obligations relating thereto not constituting Indebtedness and (y) such Liens shall not apply to any other asset of the Borrower or any Subsidiary (other than (x) assets financed by the same financing source
pursuant to the same financing scheme, (y) after-acquired property that is affixed or incorporated into the property covered by such Lien and (z) proceeds and products of the property covered by such Lien);
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(vi)
|
in connection with the sale or transfer of any Equity Interests or other assets in a transaction permitted
under Section 6.05, customary rights and restrictions contained in agreements relating to such sale or transfer pending the completion thereof;
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(vii)
|
in the case of (A) any Subsidiary that is not a wholly-owned Subsidiary or (B) the Equity Interests in any
Person that is not a Subsidiary, any encumbrance or restriction, including any put and call arrangements, related to Equity Interests in such Subsidiary or such other Person set forth in the organizational documents of such Subsidiary or
such other Person or any related joint venture, shareholders’ or similar agreement;
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(viii)
|
Liens solely on any cash earnest money deposits, escrow arrangements or similar arrangements made by the
Borrower or any Subsidiary in connection with any letter of intent or purchase agreement for a Permitted Acquisition or other transaction permitted hereunder and Liens on cash advances in favor of the seller of any property to be acquired
in an Investment pursuant to Section 6.04 to be applied against the purchase price for such Investment;
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(ix)
|
any interest or title of a lessor under leases (other than leases constituting Finance Lease Obligations)
entered into by the Borrower or any of the Subsidiaries in the ordinary course of business;
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(x)
|
Liens deemed to exist in connection with Investments in repurchase agreements that are Cash Equivalents;
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(xi)
|
Liens arising out of conditional sale, title retention, consignment or similar arrangements for sale of goods
by the Borrower or any of the Subsidiaries in the ordinary course of business;
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(xii)
|
Liens on cash, bank accounts and general intangibles relating thereto securing obligations for Cash
Management Services in the ordinary course of business;
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(xiii)
|
leases, licenses, subleases or sublicenses (including with respect to rights in Intellectual Property),
including non-exclusive software licenses, granted to others that do not (A) interfere in any material respect with the business of the Borrower and the Subsidiaries, taken as a whole, or (B) secure any Indebtedness;
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(xiv)
|
Liens on Collateral securing any Permitted Pari Passu Refinancing Debt or Permitted Junior Lien Refinancing
Debt or Incremental Equivalent Debt;
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(xvi)
|
Liens on any property of (A) any Loan Party in favor of any other Loan Party, (B) any Foreign Subsidiary in
favor of any Loan Party and (C) any Subsidiary that is not a Loan Party in favor of the Borrower or any other Loan Party;
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(xvii)
|
Liens in favor of any Securitization Vehicle or any collateral agent on Securitization Assets transferred or
purported to be transferred to such Securitization Vehicle in connection with Securitizations permitted by Section 6.05;
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(xviii)
|
Liens that are contractual rights of set-off (i) relating to pooled deposit or sweep accounts of the Borrower
or any Subsidiary to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Borrower or any Subsidiary or (ii) relating to purchase orders and other agreements entered into with
customers of the Borrower or any Subsidiary in the ordinary course of business;
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(xix)
|
in connection with the sale, disposition or transfer of all the Equity Interests in a Subsidiary or of assets
in either case in a transaction permitted under Section 6.05, customary rights and restrictions contained in agreements relating to such sale or transfer pending the completion thereof;
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(xxii)
|
other Liens securing Indebtedness or other obligations in an aggregate principal amount not to exceed the
greater of (x) $75,000,000 and (y) 8% of Consolidated Tangible Net Worth as of the last day of the fiscal quarter, if any, of the Borrower most recently ended for which financial statements shall have been delivered pursuant to
Section 5.01(a) or 5.01(b).
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|
(b)
|
Notwithstanding the foregoing, no Material Domestic Subsidiary shall create, incur, assume or permit to exist any Lien (other than any non-consensual Lien
or any Lien of the type referred to in Section 6.02(a)(i), (ii), (iv), (vi), (vii), (xiv) and (xv)) on any Equity Interests that are required by the Collateral and Guarantee Requirement to be pledged as Collateral (or, in the case of Equity
Interests of any Foreign Subsidiary or CFC Holdco, Equity Interests that would be required to be pledged if such Subsidiary became a Material Foreign Subsidiary) except pursuant to the Security Documents.
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|
(c)
|
Notwithstanding the foregoing, the Borrower will not at any time permit to exist any Lien (other than Permitted Encumbrances and Liens under the Security Documents) on any intellectual property that has been transferred to a Foreign Subsidiary pursuant to a Permitted IP Transfer so long as such intellectual property is owned by any Foreign Subsidiary. |
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(a)
|
The Borrower will not, and will not permit any Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing, (i) any Person may merge or consolidate with or into the Borrower in a transaction in which the Borrower is the surviving corporation, (ii) any Person (other than the Borrower) may merge or consolidate with any Subsidiary in a transaction in which the surviving entity is a Subsidiary (and, if any party to such merger or consolidation is a Subsidiary Loan Party, is a Subsidiary Loan Party), (iii) any Subsidiary may merge into or consolidate with any Person (other than the Borrower) in a transaction permitted under Section 6.05 in which, after giving effect to such transaction, the surviving entity is not a Subsidiary, and (iv) any Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders; provided that the assets and operations of any Material Subsidiary that is liquidated or dissolved shall be transferred to the Borrower, a Subsidiary Loan Party, or the direct holder of the Equity Interests of such Material Subsidiary in connection therewith (or, in the case of a Material Subsidiary that is an Excluded Subsidiary, to any other Subsidiary); provided that any such merger or consolidation involving a Person that is not a wholly owned Subsidiary immediately prior to such merger or consolidation shall not be permitted unless it is also permitted by Section 6.04. |
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(b)
|
None of the Borrower or any Subsidiary will engage to any material extent in any business other than businesses of the type conducted by the Borrower and the Subsidiaries on the date hereof and businesses reasonably related, incidental, complementary or ancillary thereto or a reasonable extension or expansion thereof. |
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(a)
|
any Investment shall be permitted so long as at the time each such Investment is purchased, made or otherwise acquired (i) no Default or Event of Default
shall have occurred and be continuing or would result therefrom and (ii) the Leverage Ratio at such time, calculated on a Pro Forma Basis giving effect to such Investment, is equal to or less than 2.75 to 1.00; and
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(b)
|
in addition, any of the following Investments may be made at any time: |
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(ii)
|
Investments existing on the date hereof and set forth on Schedule 6.04 to the Disclosure Letter and any
modification, replacement, renewal, reinvestment or extension thereof; provided that (A) no Investment may be made therein or in respect thereof
if such Investment would increase the outstanding amount of such Investment to an amount in excess of the amount of such Investment on the Effective Date (net of return of capital in respect thereof after the Effective Date), other than
(x) to the extent required by the terms of such Investment as in effect on the Effective Date up to the amount specified for such Investment on Schedule 6.04 to the Disclosure Letter or (y) to the extent made in reliance on another
paragraph of this Section 6.04 and (B) the terms of any such Investment are not otherwise modified from the terms that are in effect as of the date hereof in a manner that is materially adverse to the Lenders;
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(iii)
|
Investments by the Borrower and the Subsidiaries in Equity Interests in their Subsidiaries; provided that (A) such subsidiaries are Subsidiaries prior to such investments, (B) any such Equity Interests held by a Loan Party shall be pledged if
and to the extent required to satisfy the Collateral and Guarantee Requirement, and (C) the aggregate amount of such Investments by the Loan Parties in Subsidiaries that are not Loan Parties, taken together with the aggregate amount of
loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness of Subsidiaries that are not Loan Parties made in reliance on clauses (iv) and (v) below, but excluding all such Investments, loans, advances
and Guarantees existing on the date hereof and permitted by clause (ii) above, and net of any dividends, distributions, returns of capital or payments of Indebtedness made to the Loan Parties by Subsidiaries that are not Loan Parties and
release of Guarantees of Indebtedness of non-Loan Parties, shall not exceed $150,000,000; and provided further that in no event shall any Subsidiary that is a Material Domestic Subsidiary cease to be a Loan Party pursuant to this clause (iii) except as a result of a consolidation, merger or
similar transaction in which the continuing or surviving Person is a Loan Party;
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(iv)
|
loans or advances made by the Borrower or any Subsidiary to the Borrower or any Subsidiary; provided that (A) any such loans and advances made by a Loan Party shall be evidenced by the Global Intercompany Note or another promissory note, in
each case, pledged pursuant to the Collateral Agreement, (B) the Indebtedness resulting therefrom is permitted by clause (iii) of Section 6.01, and (C) the amount of such loans and advances made by the Loan Parties to Subsidiaries that
are not Loan Parties shall be subject to the limitation set forth in clause (iii) above;
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(v)
|
Guarantees by the Borrower or any Subsidiary of Indebtedness or other obligations of the Borrower or any
Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (A) a Subsidiary shall not Guarantee any Indebtedness of any Loan Party (or any Refinancing Indebtedness in respect thereof) unless (x) such Subsidiary has
Guaranteed the Obligations pursuant to the Collateral Agreement and (y) any such Guarantee of Subordinated Indebtedness is subordinated to the Loan Document Obligations on terms no less favorable to the Lenders than those of the
Subordinated Indebtedness, (B) any such Guarantee constituting Indebtedness is permitted by Section 6.01, and (C) the aggregate amount of Indebtedness of Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Parties shall
be subject to the limitation set forth in clause (iii) above;
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(vi)
|
Permitted Acquisitions (subject to the restrictions and conditions in the definition of such term with
respect to Non-Compliant Subsidiaries and Non-Compliant Assets);
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(vii)
|
Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent
accounts and disputes with, customers and suppliers or as an advance that will be applied as payment for the provision of goods or services from suppliers, in each case in the ordinary course of business;
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(viii)
|
Investments made as a result of the receipt of noncash consideration from a Disposition of any asset in
compliance with Section 6.05;
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(ix)
|
Investments by the Borrower or any Subsidiary that result solely from the receipt by the Borrower or such
Subsidiary from any of its subsidiaries of a dividend or other Restricted Payment in the form of Equity Interests, evidences of Indebtedness or securities (but not any additions thereto made after the date of the receipt thereof);
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(x)
|
payroll, travel and similar advances to directors and employees of the Borrower or any Subsidiary to cover
matters that are expected at the time of such advances to be treated as expenses of the Borrower or such Subsidiary for accounting purposes and that are made in the ordinary course of business;
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(xii)
|
Investments to the extent the consideration therefor consists of Qualified Equity Interests of the Borrower;
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(xiv)
|
Investments of any Person existing at the time such Person becomes a Subsidiary or consolidates or merges
with the Borrower or any Subsidiary so long as such Investments were not made in contemplation of such Person becoming a Subsidiary or of such consolidation or merger and so long as each such Investment that absent this paragraph (xiv)
could not be made or held without reliance on another paragraph of this Section 6.04 shall be deemed to have been made or to be held, as applicable, in reliance on such other paragraph and not in reliance on this paragraph (xiv);
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(xv)
|
Investments resulting from pledges or deposits described in clause (c), (d) or (n) of the definition of the
term “Permitted Encumbrance”;
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|
(xvi)
|
receivables or other trade payables owing to the Borrower or a Subsidiary if created or acquired in the
ordinary course of business and payable or dischargeable in accordance with customary trade terms; provided that such trade terms may include such
concessionary trade terms as the Borrower or any Subsidiary deems reasonable under the circumstances;
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(xvii)
|
mergers and consolidations permitted under Section 6.03 that do not involve any Person other than the
Borrower and Subsidiaries that are wholly owned Subsidiaries; provided that any such merger or consolidation that results in an Investment by a
Loan Party in a Subsidiary that is not a Loan Party shall be deemed made in reliance on paragraph (iii) above;
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(xviii)
|
Guarantees to insurers required in connection with worker’s compensation and other insurance coverage of
business operating risks (but not any credit or financial risks) arranged in the ordinary course of business;
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(xix)
|
Guarantees by the Borrower and the Subsidiaries, in the ordinary course of business, of obligations of
Subsidiaries to suppliers, contractors, and foundries in an aggregate amount outstanding not at any time in excess of $25,000,000;
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(xx)
|
Investments consisting of Sellers’ Retained Interests in Securitizations permitted by Section 6.05;
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|
(xxi)
|
Guarantees by the Borrower and the Subsidiaries, in the ordinary course of business, of obligations of
Subsidiaries not constituting Indebtedness;
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|
(xxii)
|
Qualifying Round-Trip Investments, provided that any Investment made in reliance on this clause (xxii) that ceases at any time to meet the requirements for a Qualifying Round-Trip Investment will automatically cease to be permitted pursuant to this
clause (xxii) and, if maintained, must be permitted by another applicable clause under this Section 6.04; and
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|
(xiii)
|
other Investments in an aggregate outstanding amount not to exceed $300,000,000, subject to a cap of an
aggregate principal amount of $100,000,000 in any calendar year, with up to $25,000,000 of any unused amount of such base amount from any calendar year available for use in the next succeeding calendar year following the use of the base
amount permitted by this clause (xxiii) in such succeeding calendar year, but not for use in any subsequent year; provided that the permitted
amount for each calendar year shall be used prior to any amount carried over from the previous calendar year.
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|
(a)
|
Dispositions of (i) inventory, (ii) used, obsolete or surplus equipment or (iii) cash and Cash Equivalents,
in each case in the ordinary course of business;
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|
(b)
|
Dispositions to the Borrower or any Subsidiary; provided that any such Dispositions involving a Subsidiary that is not a Loan Party shall be made in compliance with Section 6.04 (if applicable) and Section 6.09;
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|
(c)
|
Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase
price of similar replacement property or (ii) the proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
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|
(d)
|
Dispositions of assets to the extent that such assets constitute an Investment permitted by clause (b)(vii)
or (b)(viii) of Section 6.04 or another asset received as consideration for the Disposition of any asset permitted by this Section (in each case, other than Equity Interests in a Subsidiary, unless all Equity Interests in such Subsidiary
(other than directors’ qualifying shares) are sold);
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(g)
|
leases or subleases entered into in the ordinary course of business, to the extent that they do not
materially interfere with the business of the Borrower or any Subsidiary;
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|
(h)
|
any Permitted IP Transfer or the sale, transfer, abandonment, allowance to lapse or other disposition by the
Borrower of intellectual property if the Borrower determines in good faith that such intellectual property is no longer useful in the conduct of the business of the Loan Parties, taken as a whole, or that maintenance of such intellectual
property is no longer economically or commercially practical;
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(i)
|
Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary
buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
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(j)
|
Dispositions of Equity Interests or assets purchased or otherwise acquired in connection with a Permitted
Acquisition or other acquisition permitted hereunder; provided that (i) each such sale, transfer or other disposition shall have been made within
18 months of the consummation of the related Permitted Acquisition or other acquisition and (ii) the aggregate fair market value of the Equity Interests or assets sold, transferred or otherwise disposed of in reliance on this clause (j)
shall not exceed $25,000,000 during any fiscal year of the Borrower;
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(k)
|
Dispositions of assets that are not permitted by any other clause of this Section; provided that the aggregate fair value of all assets sold, transferred, leased or otherwise disposed of in reliance on this clause (k) shall not exceed during any fiscal
year of the Borrower the greater of (x) $110,000,000 and (y) 10.00% of Consolidated Tangible Net Worth as of the last day of the fiscal quarter, if any, of the Borrower most recently ended for which financial statements shall have been
delivered pursuant to Section 5.01(a) or 5.01(b);
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(l)
|
Dispositions of assets that are not permitted by any other clause of this Section; provided that 100% of the Net Proceeds therefrom are used to prepay Loans to the extent then outstanding (it being understood and agreed that (x) such Net Proceeds shall
be applied first to any Term Loans outstanding and (y) to the extent of any repayment of Revolving Loans, the Revolving Commitments shall permanently be reduced by a corresponding amount); provided further that no such prepayment or reduction shall be required to the extent that such
Net Proceeds are reinvested in assets used or useful in the business of the Borrower or the Subsidiaries within 180 days of the receipt thereof;
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(q)
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any Foreign Subsidiary may sell Securitization Assets to one or more Securitization Vehicles in
Securitizations; provided that (i) each such Securitization is effected on market terms, (ii) the aggregate amount of Third Party Interests in
respect of all such Securitizations shall not exceed, at any time outstanding, the greater of (x) $110,000,000 and (y) 10.00% of Consolidated Tangible Net Worth as of the last day of the fiscal quarter, if any, of the Borrower most
recently ended for which financial statements shall have been delivered pursuant to Section 5.01(a) or 5.01(b), (iii) the aggregate amount of the Sellers’ Retained Interests in such Securitizations does not exceed an amount at any time
outstanding that is customary for similar transactions and (iv) the proceeds to each such Securitization Vehicle from the issuance of Third Party Interests are applied substantially simultaneously with the receipt thereof to the purchase
from such Foreign Subsidiary of Securitization Assets.
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(a)
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The Borrower will not, and will
not permit any Subsidiary to, declare or make directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that:
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(i)
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the Borrower and its Subsidiaries may declare and make any Restricted Payments so long as at the time each
such Restricted Payment is made (i) no Default or Event of Default shall have occurred and be continuing or would result therefrom and (ii) the Leverage Ratio at such time, calculated on a Pro Forma Basis giving effect to such Restricted
Payment, is equal to or less than 2.50 to 1.00; and
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(A)
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the Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional
Equity Interests permitted hereunder;
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(B)
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any Subsidiary may declare and pay dividends or make other distributions with respect to its capital stock,
partnership or membership interests or other similar Equity Interests, or make other Restricted Payments in respect of its Equity Interests, in each case ratably to the holders of such Equity Interests or its Equity Interests of the
relevant class, as the case may be, or otherwise in connection with a Qualifying Round-Trip Investment;
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(C)
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the Borrower may acquire Equity Interests upon the exercise of stock options if such Equity Interests are
transferred in satisfaction of a portion of the exercise price of such options;
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(D)
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the Borrower may make cash payments in lieu of the issuance of fractional shares representing insignificant
interests in the Borrower in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests in the Borrower;
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(E)
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the Borrower may make Restricted Payments, not exceeding $10,000,000 in the aggregate during any fiscal year,
pursuant to and in accordance with stock option plans or other benefit plans or agreements approved by the Borrower’s board of directors for directors, officers or employees of the Borrower and the Subsidiaries;
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(F)
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the Borrower may make cash payments upon conversion of the Convertible Senior Debt (or other convertible
securities with terms substantially similar to, and no less favorable to the Lenders than, those of the Convertible Senior Debt) into common stock of the Borrower in an amount not to exceed the stated principal amount of the Convertible
Senior Debt (or such other convertible securities) so converted and otherwise in accordance with Section 6.08(b)(ii);
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(G)
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other Restricted Payments in an aggregate outstanding amount not to exceed, together with the amount of any
payments made pursuant to Section 6.08(b)(ii)(G), $300,000,000, subject to a cap of $100,000,000 in any calendar year, with up to $25,000,000 of any unused amount of such base amount from any calendar year available for use in the next
succeeding calendar year following the use of the base amount permitted by this clause (G) in such succeeding calendar year, but not for use in any subsequent year; provided that the permitted amount for each calendar year shall be used prior to any amount carried over from the previous calendar year; and
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(b)
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None of the Borrower or any Subsidiary will, directly or indirectly, prepay, redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity thereof in any manner any Junior Indebtedness, including by making any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, defeasance, cancellation or termination of any Junior Indebtedness prior to the scheduled maturity thereof, or make any payment in violation of any subordination terms of any Junior Indebtedness; except: |
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(i)
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the prepayment, redemption, purchase, defeasance or other satisfaction of Junior Indebtedness shall be
permitted so long as at the time thereof (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) the Leverage Ratio, calculated on a Pro Forma Basis giving effect to such prepayment,
redemption, purchase, defeasance or other satisfaction of Junior Indebtedness, is equal to or less than 2.50 to 1.00; and
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(ii)
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the Borrower may make any of the following payments for or in respect of Junior Indebtedness (to the extent
such payments are not otherwise permitted pursuant to clause (b)(i) of this Section 6.08):
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(A)
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regularly scheduled interest and principal payments and fees as and when due in respect of any Junior
Indebtedness, and any payments or prepayments in respect of Junior Indebtedness owed by any Loan Party to the Borrower or any Subsidiary, in each case other than payments in respect of Junior Indebtedness prohibited by the subordination
provisions thereof;
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(C)
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the conversion of any Junior Indebtedness to Equity Interests (other than Disqualified Equity Interests) of
the Borrower;
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(D)
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payments of or in respect of Junior Indebtedness made solely with Equity Interests in the Borrower (other
than Disqualified Equity Interests);
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(E)
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the prepayment, redemption, purchase, defeasance or other satisfaction of Junior Indebtedness incurred or assumed pursuant to Section 6.01(a)(vi), so long as at the time each such payment is made no Default shall have occurred and be continuing or would result therefrom |
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(G)
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the Borrower and the Subsidiaries may make additional cash payments of or in respect of Junior Indebtedness
(unless such payments would be prohibited by the subordination provisions thereof), so long as at the time each such payment is made no Default shall have occurred and be continuing or would result therefrom, (x) in an amount not in
excess of, together with the amount of any Restricted Payments made pursuant to Section 6.08(a)(ii)(G), $300,000,000, subject to a cap of an aggregate principal amount of $100,000,000 in any calendar year, with up to $25,000,000 of any
unused amount of such base amount from any calendar year available for use in the next succeeding calendar year following the use of the base amount permitted by this clause (G) in such succeeding calendar year, but not for use in any
subsequent year; provided that the permitted amount for each calendar year shall be used prior to any amount carried over from the previous
calendar year; and
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(H)
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the Borrower or any Subsidiary may make other payments of Junior Indebtedness as a result of a “change of
control” or Disposition so long as, in each case, any rights of the holders thereof upon such “change of control” or Disposition shall be subject to the prior repayment in full of the outstanding Loans and all other outstanding
Obligations (including accrued interest, fees and other accrued Obligations) and the termination of the Commitments and the expiration, cancellation, termination or cash collateralization of any Letters of Credit in accordance with the
terms of this Agreement.
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(c)
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For the avoidance of doubt, payments in respect of the Convertible Senior Debt or other debt convertible into Equity Interests of the Borrower (prior to or in connection with the conversion thereof into Equity Interests of the Borrower) shall not constitute Restricted Payments or payments in respect of Junior Indebtedness restricted by this Section 6.08. |
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(a)
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the Borrower shall fail to pay any principal of any Loan or any reimbursement obligation in respect of any LC
Disbursement when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
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(b)
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the Borrower shall fail to pay any interest on any Loan or any fee or any other amount (other than an amount
referred to in clause (a) of this Article) payable under this Agreement or any other Loan Document, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of five Business Days;
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(c)
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any representation or warranty made or deemed made by or on behalf of the Borrower or any Subsidiary in or in
connection with any Loan Document or any amendment or modification thereof or waiver thereunder, or in any written report, certificate, financial statement or other information furnished pursuant to any Loan Document or any amendment or
modification thereof or waiver thereunder, shall prove to have been incorrect in any material respect when made or deemed made;
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(d)
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the Borrower shall fail to observe or perform any covenant, condition or agreement contained in
Section 5.02(a), 5.05 (with respect to the existence of the Borrower) or 5.11 or in Article VI;
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(e)
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any Loan Party shall fail to observe or perform any covenant, condition or agreement contained in any Loan
Document (other than those specified in clause (a), (b) or (d) of this Article), and such failure shall continue unremedied for a period of 30 days after notice thereof from the Administrative Agent or any Lender to the Borrower (with a
copy to the Administrative Agent in the case of any such notice from a Lender);
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(f)
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the Borrower or any Subsidiary shall fail to make any payment (whether of principal, interest, termination
payment or other payment obligation and regardless of amount) in respect of any Material Indebtedness, when and as the same shall become due and payable (after giving effect to any applicable grace period in respect of such failure under
the documentation representing such Material Indebtedness);
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(g)
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any event or condition resulting from the breach of any covenant or obligation or the occurrence of any “default”, “event of default” or “termination event” (however denominated, and including in any case any event analogous to a Default or an Event of Default hereunder) occurs that results in any Material Indebtedness becoming due prior to its scheduled maturity or that enables or permits (with or without the giving of notice, the lapse of time or both) the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf, or, in the case of any Hedging Agreement, the applicable counterparty, to cause such Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity or, in the case of any Hedging Agreement, to cause the termination thereof; provided that this clause (g) shall not apply to (A) any secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the assets securing such Indebtedness, (B) any Indebtedness that becomes due as a result of a refinancing thereof permitted under Section 6.01 or (C) any requirement to prepay or offer to repurchase or prepay Material Indebtedness pursuant to customary terms thereof that are not otherwise prohibited hereby with respect to asset sale or excess cash flow prepayment requirements, borrowing base or lending commitment exposure limits, margin maintenance requirements or similar provisions; provided further that any such prepayment or repurchase requirement does not result from the breach of any covenant or obligation or the occurrence of any “event of default” or “termination event” (however denominated, and including in any case any event analogous to an Event of Default hereunder); |
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(h)
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one or more ERISA Events shall have occurred that would, individually or in the aggregate, reasonably be
expected to result in a Material Adverse Effect;
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(i)
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an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking
(i) liquidation, reorganization or other relief in respect of the Borrower or any Material Subsidiary or its debts, or of a substantial part of its assets, under any Federal, state or foreign bankruptcy, insolvency, receivership or
similar law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or a Material Subsidiary or for a substantial part of its assets, and, in any
such case, such proceeding or petition shall continue undismissed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered;
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(j)
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the Borrower or any Material Subsidiary shall (i) voluntarily commence any proceeding or file any petition
seeking liquidation (other than any liquidation permitted by clause (iv) of Section 6.03(a)), reorganization or other relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in
effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in clause (i) of this Article, (iii) apply for or consent to the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for the Borrower or any Material Subsidiary or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any
such proceeding or (v) make a general assignment for the benefit of creditors, or the board of directors (or similar governing body) of the Borrower or any Material Subsidiary (or any committee thereof) shall adopt any resolution or
otherwise authorize any action to approve any of the actions referred to above in this clause (j) or clause (i) of this Article;
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(k)
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one or more judgments for the payment of money in an aggregate amount in excess of $50,000,000 (other than
any such judgment covered by insurance (other than under a self-insurance program) to the extent a claim therefor has been made in writing and liability therefor has not been denied by the insurer), shall be rendered against the Borrower,
any Subsidiary or any combination thereof and the same shall remain unpaid or undischarged for a period of 60 consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment
creditor to attach or levy upon any assets of the Borrower or any Subsidiary to enforce any such judgment;
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(l)
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any Lien purported to be created under any Security Document shall cease to be, or shall be asserted in
writing by any Loan Party not to be, a valid and perfected Lien on any material Collateral, with the priority required by the applicable Security Document, except as a result of (i) a Disposition of the applicable Collateral in a
transaction permitted under the Loan Documents or (ii) the release thereof as provided in Section 9.14 or (iii) the Administrative Agent’s failure to maintain possession of any stock certificate, promissory note or other instrument
delivered to it under the Collateral Agreement or to maintain in effect UCC financing statements, unless such failure is attributable to any failure of a Loan Party to perform its obligations under any Loan Document;
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(m)
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any Guarantee of a Loan Party purported to be created under any Loan Document shall cease to be, or shall be
asserted in writing by any Loan Party not to be, in full force and effect, except (i) upon the consummation of any transaction permitted under this Agreement as a result of which the Subsidiary Loan Party providing such Guarantee ceases
to be a Subsidiary or (ii) as a result of the release thereof as provided in the applicable Loan Document or Section 9.14; or
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(a)
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to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, LC Exposure 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, the Issuing Banks and the Administrative Agent (including any claim under Sections 2.12, 2.13, 2.15, 2.16, 2.17 and 9.03) allowed in such judicial proceeding; and |
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(b)
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to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; |
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(i)
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if to the Borrower, to it at 63 Lancaster Avenue, Malvern, Pennsylvania 19355, Attention of the Chief
Financial Officer (email: [personal email address redacted]), with a copy to the General Counsel (email: [personal email address redacted]);
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(ii)
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if to the Administrative Agent, as follows: (A) if such notice relates to a Loan or Borrowing denominated in
dollars, or does not relate to any particular Loan, Borrowing or Letter of Credit, to JPMorgan Chase Bank, N.A., 10 S. Dearborn St., Floor L2, Chicago, IL 60603, Mailcode IL1-0480, Attention of April Yebd (Fax No. 844-490-5663) (email: [personal email address redacted]), with a copy to JPMorgan Chase Bank, N.A., 237 Park Avenue, New York, NY
10017,
Attention of Daglas Panchal (email: [personal
email address redacted]), and, if with respect to any Letter of Credit or LC Disbursement, with a copy to LC Team (Fax No. 312-256-2608) (email: [personal email address redacted]), with a copy to JPMorgan Chase Bank, N.A., 237 Park Avenue, New York, NY 10017, Attention of Daglas Panchal (email: [personal email address redacted]), and (B) if such notice relates to a Loan or Borrowing denominated in a Designated
Foreign
Currency, to J.P. Morgan Europe Limited, Loans Agency 6th Floor, 25 Bank Street, Canary Wharf, London E14 5JP, United Kingdom, Attention of Loans Agency (Fax No. +44 20-7777-2360) (email: [personal email address redacted]), with a copy to JPMorgan Chase Bank, N.A., 10 S.
Dearborn St., Floor L2, Chicago, IL 60603, Mailcode IL1-0480, Attention of April Yebd (Fax No. 844-490-5663) (email: [personal email address redacted]);
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(iii)
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if to any Issuing Bank, to it at its address or email (or fax number) most recently specified by it in a
notice delivered to the Administrative Agent and the Borrower (or, in the absence of any such notice, to the address (or fax number) set forth in the Administrative Questionnaire of the Lender that is serving as such Issuing Bank or is an
Affiliate thereof); and
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(iv)
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if to any other Lender, to it at its address or email (or fax number) set forth in its Administrative
Questionnaire.
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(b)
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Notices and other communications to the Lenders and Issuing Banks hereunder may be delivered or furnished by electronic communications (including email and Internet and intranet websites) pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall not apply to notices under Article II to any Lender or Issuing Bank if such Lender or Issuing Bank, as applicable, has notified the Administrative Agent and the Borrower that it is incapable of receiving notices under such Article by electronic communication. Any notices or other communications to the Administrative Agent or the Borrower may be delivered or furnished by electronic communications pursuant to procedures approved by the recipient thereof prior thereto; provided that approval of such procedures may be limited or rescinded by any such Person by notice to each other such Person. |
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(c)
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Any party hereto may change its address or fax number for notices and other communications hereunder by notice to the other parties hereto. |
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(d)
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The Borrower agrees that the Administrative Agent may, but shall not be obligated to, make any communications by posting such communication on Debt Domain, IntraLinks, SyndTrak or a substantially similar electronic transmission system (the “Platform”). The Platform is provided “as is” and “as available”. Neither the Administrative Agent nor any of its Related Parties warrants, or shall be deemed to warrant, as to the adequacy of the Platform and each such Person expressly disclaims any liability for errors or omissions in the Communications. No warranty of any kind, express, implied or statutory, including any warranty of merchantability, fitness for a particular purpose, non-infringement of third-party rights or freedom from viruses or other code defects, is made, or shall be deemed to be made, by the Administrative Agent or any of its Related Parties in connection with the Communications or the Platform. In no event shall the Administrative Agent or any of its Related Parties have any liability to the Loan Parties, any Lender, any Issuing Bank or any other Person for damages of any kind, including direct or indirect, special, incidental or consequential damages, losses or expenses (whether in tort, contract or otherwise), arising out of any Loan Party’s or the Administrative Agent’s transmission of Communications through the Platform, except to the extent such damages are found in a final and non-appealable judgment of a court of competent jurisdiction to have resulted from the bad faith, willful misconduct or gross negligence of the Administrative Agent or any of its Related Parties. |
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(b)
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Except as provided in Sections 2.20, 2.21 and 2.22 and in the Collateral Agreement, none of this Agreement, any other Loan Document or any provision hereof or thereof may be waived, amended or modified except, in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrower, the Administrative Agent and the Required Lenders and, in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by the Administrative Agent and the Loan Party or Loan Parties that are parties thereto, in each case with the consent of the Required Lenders, provided that (i) any provision of this Agreement or any other Loan Document may be amended by an agreement in writing entered into by the Borrower and the Administrative Agent to cure any ambiguity, omission, defect or inconsistency so long as, in each case, the Lenders shall have received at least five Business Days’ prior written notice thereof and the Administrative Agent shall not have received, within five Business Days of the date of such notice to the Lenders, a written notice from the Required Lenders stating that the Required Lenders object to such amendment and (ii) no such agreement shall (A) increase the Commitment of any Lender without the written consent of such Lender (it being understood |
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that a waiver of any condition precedent or the waiver of any Default, Event of Default or mandatory
prepayment shall not constitute an increase of any commitment), (B) reduce the principal amount of any Loan or LC Disbursement or reduce the rate of interest thereon (other than as a result of any waiver of any increase in the interest rate
applicable to any Loan pursuant to Section 2.12(c), it being understood that a waiver of a Default or any change in the definition of the term “Leverage Ratio” or any component thereof shall not constitute a reduction of interest for this
purpose), or reduce any fees payable hereunder, without the written consent of each Lender affected thereby, (C) postpone the scheduled maturity date of any Loan, or the date of any scheduled payment of the principal amount of any
Incremental Term Loan under the applicable Incremental Facility Amendment, or the required date of reimbursement of any LC Disbursement, or any date for the payment of any interest or fees payable hereunder, or reduce the amount of, waive
or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender affected thereby, (D) except as provided in Sections 2.20, 2.21 or 2.22, change Section 2.17(b) or
2.17(c) in a manner that would alter the pro rata sharing of payments required thereby without the written consent of each Lender, (E) except pursuant to an Incremental Facility Amendment or an Extension Permitted Amendment to reflect a new
Class of Loans or Commitments hereunder, change any of the provisions of this Section or the percentage set forth in the definition of the term “Required Lenders” or “Required Revolving Lenders” or any other provision of any Loan Document
specifying the number or percentage of Lenders (or Lenders of any Class) required to waive, amend or modify any rights thereunder or make any determination or grant any consent thereunder, without the written consent of each Lender (or each
Lender of such Class, as the case may be); provided that, with the consent of the Required Lenders or the Required Revolving Lenders, as the
case may be, the provisions of this Section and the definition of the term “Required Lenders” or “Required Revolving Lenders” may be amended to include references to any new Class of loans created under this Agreement (or to lenders
extending such loans) on substantially the same basis as the corresponding references relating to the existing Classes of Loans or Lenders, (F) release Guarantees constituting all or substantially all the value of the Guarantees under the
Collateral Agreement, or limit the liability of Loan Parties in respect of Guarantees constituting such value, or limit its liability in respect thereof, in each case without the written consent of each Lender (except as expressly provided
in Section 9.14 or the Collateral Agreement (including any such release by the Administrative Agent in connection with any sale or other disposition of any Subsidiary upon the exercise of remedies under the Security Documents), it being
understood and agreed that an amendment or other modification of the type of obligations guaranteed under the Collateral Agreement shall not be deemed to be a release or limitation of any Guarantee), (G) release all or substantially all the
Collateral from the Liens of the Security Documents, without the written consent of each Lender (except as expressly provided in Section 9.14 or the applicable Security Document (including any such release by the Administrative Agent in
connection with any sale or other disposition of the Collateral upon the exercise of remedies under the Security Documents), it being understood and agreed that an amendment or other modification of the type of obligations secured by the
Security Documents shall not be deemed to be a release of the Collateral from the Liens of the Security Documents) and (H) change any provisions of any Loan Document in a manner that by its terms adversely affects the rights in respect of
Collateral or payments due to Lenders holding Loans of any Class differently than those holding Loans of any other Class, without the written consent of Lenders representing a Majority in Interest of each affected Class; provided further that (1) no such agreement
shall amend, modify, extend or otherwise affect the rights or obligations of the Administrative Agent, any Issuing Bank without the prior written consent of the Administrative Agent, such Issuing Bank, as the case may be and (2) any
amendment, waiver or other modification of this Agreement that by its terms affects the rights or duties under this Agreement of the Lenders of a particular Class (but not the Lenders of any other Class), may be effected by an agreement or
agreements in writing entered into by the Borrower and the requisite number or percentage in interest of the affected Class of Lenders that would be required to consent thereto under this Section if such Class of Lenders were the only Class
of Lenders hereunder at the time. Notwithstanding the foregoing, (i) no consent with respect to any amendment, waiver or other modification of this Agreement or any other Loan Document shall be required of (x) any Defaulting Lender, except
with respect to any amendment, waiver or other modification referred to in clause (A), (B), (C) or (D) of the first proviso of this paragraph and then only in the event such Defaulting Lender shall be affected by such amendment, waiver or
other modification or (y) in the case of any vote requiring the approval of all Lenders or each affected Lender, any Lender that receives payment in full of the principal of and interest accrued on each Loan made by, and all other amounts
owing to, such Lender or accrued for the account of such Lender under this Agreement and the other Loan Documents at the time such amendment, waiver or other modification becomes effective and whose Commitments terminate by the terms and
upon the effectiveness of such amendment, waiver or other modification; provided that any amendment, waiver or other modification of this
Agreement or any other Loan Document requiring the consent of all Lenders or of each affected Lender that affects any Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender and (ii)
this Agreement may be amended to provide for Incremental Extensions of Credit in the manner contemplated by Section 2.20, Extension Permitted Amendments as provided in Section 2.21 and the incurrence of Refinancing Revolving Commitments and
Refinancing Term Loans as provided in Section 2.22, in each case without any additional consents.
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(c)
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Notwithstanding anything herein to the contrary, the Administrative Agent may, without the consent of any Secured Party, consent to a departure by any Loan Party from any covenant of such Loan Party set forth in this Agreement, the Collateral Agreement or any other Security Document to the extent such departure is consistent with the authority of the Administrative Agent set forth in the definition of the term “Collateral and Guarantee Requirement”. |
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(d)
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The Administrative Agent may, but shall have no obligation to, with the concurrence of any Lender, execute amendments, waivers or other modifications on behalf of such Lender. Any amendment, waiver or other modification effected in accordance with this Section 9.02 shall be binding upon each Person that is at the time thereof a Lender and each Person that subsequently becomes a Lender. |
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(b)
|
The Borrower shall indemnify the Administrative Agent (and any sub-agent thereof), the Arrangers, each Lender and Issuing Bank (each such Person, an “Indemnified Institution”), and each Related Party of any of the foregoing Persons (each Indemnified Institution and each such Person being called an “Indemnitee”), against, and hold each Indemnitee harmless from, any and all losses, claims, damages, penalties, liabilities and related expenses, including the reasonable and documented out-of-pocket fees, charges and disbursements of a single firm of counsel for all Indemnitees, taken as a whole, and, if reasonably necessary, of a single firm of local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, where an Indemnified Institution affected by such conflict informs the Borrower of such conflict and thereafter retains its own counsel, of another firm of counsel for such affected Indemnified Institution), incurred by or asserted against any Indemnitee arising out of, in connection with, based upon, or as a result of (i) the structuring, arrangement and the syndication of the credit facilities provided for herein, the preparation, execution, delivery and administration of the Engagement Letter, this Agreement, the other Loan Documents or any other agreement or instrument contemplated hereby or thereby, the performance by the parties to the Engagement Letter, this Agreement or the other Loan Documents of their obligations thereunder or the consummation of the Transactions or any other transactions contemplated thereby, (ii) any Loan, Letter of Credit or the use of the proceeds therefrom (including any refusal by any Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (each, a “Proceeding”) and whether initiated against or by any party to the Engagement Letter, this Agreement or any other Loan Document, any Affiliate of any of the foregoing or any third party (and regardless of whether any Indemnitee is a party thereto and regardless of whether such claim, litigation or proceeding is brought by a third party or by the Borrower or any of the Subsidiaries) or (iv) any actual or alleged presence or Release of Hazardous Materials on, at, under or from any property currently or formerly owned, leased or operated by the Borrower or any of its Subsidiaries, or any Environmental Liability related in any way to the Borrower or any of its Subsidiaries; provided that, in the case of each of clause (i), (ii) and (iii) above, such indemnity shall not, as to any Indemnified Institution, be available to the extent that such losses, claims, damages, liabilities or related expenses resulted from (A) (i) the gross negligence, bad faith or willful misconduct of such Indemnified Institution or any of its Related Parties (as determined by a court of competent jurisdiction in a final and non-appealable decision) or (ii) a material breach by such Indemnified Institution or one of its Related Parties of this Agreement as determined by a court of competent jurisdiction in a final and non-appealable decision or (B) the subject of a Proceeding brought by an Indemnified Institution against any other Indemnified Institution (other than any claims against any Arranger or the Administrative Agent in its capacity as such) and are found by a final, non-appealable judgment of a court of competent jurisdiction not to have resulted from an act or omission by the Borrower or its affiliates. This paragraph shall not apply with respect to Taxes other than any Taxes that represent losses, claims or damages arising from any non-Tax claim. |
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(c)
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To the extent that the Borrower fails to pay any amount required to be paid by it under paragraph (a) or (b) of this Section to the Administrative Agent (or any sub-agent thereof), any Issuing Bank or any Related Party of any of the foregoing, without relieving the Borrower of its obligation to do so, each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent), such Issuing Bank or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent (or such sub-agent), such Issuing Bank in its capacity as such, or against any Related Party of any of the foregoing acting for the Administrative Agent (or any such sub-agent), any Issuing Bank in connection with such capacity. For purposes of this Section, a Lender’s “pro rata share” shall be determined based upon its share of the sum of the total Revolving Exposures, outstanding Incremental Term Loans and unused Commitments at the time (or most recently outstanding and in effect). |
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(d)
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To the extent permitted by applicable law, the Borrower shall not assert, or permit any of its Affiliates or Related Parties to assert, and each hereby waives, any claim against any Indemnitee for any damages arising from the use by others of information or other materials obtained through telecommunications, electronic or other information transmission systems (including the Internet) in the absence of willful misconduct or gross negligence (as determined by a court of competent jurisdiction in a final, non-appealable decision). To the extent permitted by applicable law, no party hereto shall assert, or permit any of its Affiliates or Related Parties to assert, and each hereby waives, any claim against any Indemnitee or any other party hereto or its Affiliates 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 or thereby, the Transactions, any Loan or Letter of Credit or the use of the proceeds thereof; provided, however, that nothing contained in this sentence will limit the indemnity and reimbursement obligations of the Borrower set forth in this Section in the case of a claim by any third party that is not an Affiliate of the Indemnitee seeking indemnification or reimbursement. |
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(e)
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All amounts due under this Section shall be payable promptly after written demand therefor. |
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(b)
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(i) Notwithstanding anything to the contrary contained herein, neither the Borrower nor any Affiliate of the Borrower may acquire by assignment, participation or otherwise any right to or interest in any of the Commitments or Incremental Term Loans hereunder (and any such attempted acquisition shall be null and void). Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign to one or more Eligible Assignees (other than, in the case of Term Commitments or Term Loans, any “disqualified lenders” (or equivalent term) applicable with respect thereto) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld or delayed) of: |
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(A)
|
the Borrower; provided
that no consent of the Borrower shall be required (1) for an assignment (x) of a Term Commitment or a Term Loan to a Lender, an Affiliate of a Lender or an Approved Fund or (y) of a Revolving Commitment or a Revolving Loan to a Revolving
Lender, an Affiliate of a Revolving Lender or an Approved Fund in respect of a Revolving Lender and (2) if an Event of Default pursuant to clause (a), (b), (i) or (j) of Article VII has occurred and is continuing, for any other
assignment; provided further that (x) in the case of an
assignment of a Term Commitment or a Term Loan, the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within ten Business Days after having
received notice thereof and (y) in the case of an assignment of a Revolving Commitment or a Revolving Loan, the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the
Administrative Agent within ten Business Days after having received notice thereof;
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(B)
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the Administrative Agent; provided
that no consent of the Administrative Agent shall be required for an assignment and delegation of all or any portion of a Term Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
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(C)
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each Issuing Bank, in the case of any assignment and delegation of all or a portion of a Revolving Commitment
or any Lender’s obligations in respect of its LC Exposure;
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(A)
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except in the case of an assignment and delegation to a Lender, an Affiliate of a Lender or an Approved Fund
or an assignment and delegation of the entire remaining amount of the assigning Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment and delegation
(determined as of the trade date specified in the Assignment and Assumption with respect to such assignment and delegation or, if no trade date is so specified, as of the date the Assignment and Assumption with respect to such assignment
and delegation is delivered to the Administrative Agent) shall not be less than $5,000,000 or, in the case of Term Loans, $500,000, unless each of the Borrower and the Administrative Agent otherwise consents (such consent not to be
unreasonably withheld or delayed); provided that no such consent of the Borrower shall be required if an Event of Default under clause (a), (b),
(i) or (j) of Article VII has occurred and is continuing;
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(B)
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each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s
rights and obligations under this Agreement; provided that this clause (B) shall not be construed to prohibit the assignment of a proportionate
part of all the assigning Lender’s rights and obligations in respect of one Class of Commitments or Loans but not those in respect of a second Class;
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(C)
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the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and
Assumption, together with a processing and recordation fee of $3,500; provided that (i) only one such processing and recordation fee shall be
payable in the event of simultaneous assignments from any Lender or its Approved Funds to one or more other Approved Funds of such Lender and (ii) no such fee will be payable in respect of an assignment by any Lender that is a Lender as
of the Effective Date at any time prior to the 90th day following the Effective Date;
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(D)
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with respect to any assignment and delegation pursuant to Section 2.18(b), the parties hereto agree that such
assignment and delegation may be effected pursuant to an Assignment and Assumption executed by the Borrower, the Administrative Agent and the assignee and that the Lender required to make such assignment and delegation need not be a party
thereto; and
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(E)
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the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent any tax forms required
by Section 2.16(f) and an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain MNPI) will be made available and who may receive such
information in accordance with the assignee’s compliance procedures and applicable law, including Federal, State and foreign securities laws.
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(iii)
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Subject to acceptance and recording thereof pursuant to paragraph (b)(v) of this Section, 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 the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 2.14, 2.15, 2.16 and 9.03). Any assignment or
other transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 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 Section 9.04(c).
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(iv)
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The Administrative Agent, acting solely 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 the names and addresses of the Lenders, and the Commitment of, and principal amount of and stated interest on
the Loans and LC Disbursements owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register
shall be conclusive absent manifest error, and the Borrower, the Administrative Agent, the Issuing Banks and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower and, as to entries pertaining to it, any Issuing Bank or Lender, at any reasonable time and from time
to time upon reasonable prior notice.
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(v)
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Upon receipt by the Administrative Agent of a duly completed Assignment and Assumption executed by an
assigning Lender and an assignee, the assignee’s completed Administrative Questionnaire and any tax forms required by Section 2.16(f) (unless the assignee shall already be a Lender hereunder) and the processing and recordation fee
referred to in this Section and any written consent to such assignment and delegation required by paragraph (b) of this Section, the Administrative Agent shall accept such Assignment and Assumption and record the information contained
therein in the Register; provided that the Administrative Agent shall not be required to accept such Assignment and Assumption or so record the
information contained therein if the Administrative Agent reasonably believes that such Assignment and Assumption lacks any written consent required by this Section or is otherwise not in proper form, it being acknowledged that the
Administrative Agent shall have no duty or obligation (and shall incur no liability) with respect to obtaining (or confirming the receipt) of any such written consent or with respect to the form of (or any defect in) such Assignment and
Assumption, any such duty and obligation being solely with the assigning Lender and the assignee. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph,
and following such recording, unless otherwise determined by the Administrative Agent (such determination to be made in the sole discretion of the Administrative Agent, which determination may be conditioned on the consent of the
assigning Lender and the assignee), shall be effective notwithstanding any defect in the Assignment and Assumption relating thereto. Each assigning Lender and the assignee, by its execution and delivery of an Assignment and Assumption,
shall be deemed to have represented to the Administrative Agent that all written consents required by this Section with respect thereto (other than the consent of the Administrative Agent) have been obtained and that such Assignment and
Assumption is otherwise duly completed and in proper form, and each assignee, by its execution and delivery of an Assignment and Assumption, shall be deemed to have represented to the assigning Lender and the Administrative Agent that
such assignee is an Eligible Assignee.
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(vi)
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The words “execution”, “signed”, “signature” and words of like import in any Assignment and Assumption shall
be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based
recordkeeping system, as applicable, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act or any
other similar State laws based on the Uniform Electronic Transactions Act.
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(c)
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(i) Any Lender may, without the consent of the Borrower, the Administrative Agent or any Issuing Bank, sell participations to one or more Eligible Assignees (“Participants”) in all or a portion of such Lender’s rights and obligations under this Agreement (including all or a portion of its Commitments and Loans of any Class); 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 Issuing Banks 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 or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement or any other Loan Document; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver described in the first proviso to Section 9.02(b) that affects such Participant or requires the approval of all the Lenders. The Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.14, 2.15 and 2.16 (subject to the requirements and limitations therein, including the requirements under Section 2.16(f) (it being understood that the documentation required under Section 2.16(f) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section; provided that such Participant (x) agrees to be subject to the provisions of Sections 2.17 and 2.18 as if it were an assignee under paragraph (b) of this Section and (y) shall not be entitled to receive any greater payment under Section 2.14 or 2.16, with respect to any participation, than its participating Lender would have been entitled to receive, unless the sale of such participation was made with the Borrower’s prior written consent and the entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 9.08 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.17(c) as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a nonfiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant to which it has sold a participation and the principal amounts (and stated interest) of each such Participant’s interest in the Loans or other rights and obligations of such Lender under this Agreement (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Loans or other rights and obligations under any this Agreement) except to the extent that such disclosure is necessary to establish that such Loan or other right or obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. |
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(d)
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Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank, and this Section 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. |
|
(b)
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The Borrower irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind or description, whether in law or equity, whether in contract or in tort or otherwise, against the Administrative Agent, any Lender, any Issuing Bank or any Related Party of any of the foregoing in any way relating to this Agreement or any other Loan Document or the transactions relating hereto or thereto, in any forum other than the United States District Court for the Southern District of New York sitting in the Borough of Manhattan (or if such court lacks subject matter jurisdiction, the Supreme Court of the State of New York sitting in the Borough of Manhattan), and any appellate court from any thereof, and each of the parties hereto irrevocably and unconditionally submits, for itself and its property, to the jurisdiction of such courts and agrees that all claims in respect of any action, litigation or proceeding may be heard and determined in such New York State court or, to the fullest extent permitted by applicable law, in such Federal court. Each party hereto agrees that a final judgment in any such action, litigation or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right that the Administrative Agent, any Lender or any Issuing Bank may otherwise have to bring any action, litigation or proceeding relating to this Agreement or any other Loan Document against any Loan Party or any of its properties in the courts of any jurisdiction. |
|
(c)
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Each of the parties hereto hereby irrevocably and unconditionally waives, to the fullest extent permitted by law, any objection that it may now or hereafter
have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or any other Loan Document in any court referred to in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.
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(d)
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Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 9.01. Nothing in this Agreement or any other Loan Document will affect the right of any party to this Agreement to serve process in any other manner permitted by law. |
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(b)
|
The obligations of the Borrower in respect of any sum due to any party hereto or any holder of the obligations owing hereunder (the “Applicable Creditor”) shall, notwithstanding any judgment in a currency (the “Judgment Currency”) other than the currency in which such sum is stated to be due hereunder (the “Agreement Currency”), be discharged only to the extent that, on the Business Day following receipt by the Applicable Creditor of any sum adjudged to be so due in the Judgment Currency, the Applicable Creditor may in accordance with normal banking procedures in the relevant jurisdiction 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 Creditor in the Agreement Currency, the Borrower agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the Applicable Creditor against such loss. The obligations of the Borrower contained in this Section 9.15 shall survive the termination of this Agreement and the payment of all other amounts owing hereunder. |
|
(b)
|
The Borrower further acknowledges and agrees, and acknowledges its Subsidiaries’ understanding, that the Administrative Agent, the Arrangers, the Lenders, the Issuing Banks and their respective Affiliates are each full service securities or banking firms engaged in securities trading and brokerage activities as well as providing investment banking and other financial services. The Administrative Agent, the Arrangers, the Lenders, the Issuing Banks and their respective Affiliates may be engaged, for their own accounts or the accounts of customers, in a broad range of transactions that involve interests that differ from those of the Borrower, the Subsidiaries and their respective Affiliates, and none of the Administrative Agent, the Arrangers, the Lenders, the Issuing Banks or any of their respective Affiliates has any obligation to disclose any of such interests to the Borrower, the Subsidiaries or any of their respective Affiliates. With respect to any securities and/or financial instruments so held by the Administrative Agent, the Arrangers, the Lenders, the Issuing Banks and their respective Affiliates or any of their respective customers, all rights in respect of such securities and financial instruments, including any voting rights, will be exercised by the holder of the rights, in its sole discretion. To the fullest extent permitted by law, each of Borrower hereby waives and releases any claims that it or any of its Affiliates may have against the Administrative Agent, the Arrangers, the Lenders, the Issuing Banks or any of their respective Affiliates with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby. |
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(b)
|
The Borrower, and each Lender acknowledge that, if information furnished by the Borrower pursuant to or in connection with this Agreement is being distributed by the Administrative Agent through the Platform, (i) the Administrative Agent may post any information that the Borrower has indicated as containing MNPI solely on that portion of the Platform as is designated for Private Side Lender Representatives and (ii) if the Borrower has not indicated whether any information furnished by it pursuant to or in connection with this Agreement contains MNPI, the Administrative Agent reserves the right to post such information solely on that portion of the Platform as is designated for Private Side Lender Representatives. The Borrower agrees to clearly designate all information provided to the Administrative Agent by or on behalf of the Borrower that is suitable to be made available to Public Side Lender Representatives, and the Administrative Agent shall be entitled to rely on any such designation by the Borrower without liability or responsibility for the independent verification thereof. |
|
(a)
|
the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to
it by any party hereto that is an EEA Financial Institution; and
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|
(b)
|
the effects of any Bail-In Action on any such liability, including, if applicable: |
|
(ii)
|
a conversion of all, or a portion of, such liability into shares or other instruments of ownership in
such EEA Financial Institution, its parent entity, 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
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(iii)
|
the variation of the terms of such liability in connection with the exercise of the Write-Down and
Conversion Powers of any EEA Resolution Authority.
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|
(a)
|
Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of the Administrative Agent and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that at least one of the following is and will be true: |
|
(i)
|
such Lender is not using “plan assets” (within the meaning of Section 3(42) of ERISA or otherwise) of
one or more Benefit Plans with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments or this Agreement;
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(ii)
|
the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for
certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain
transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by
in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement;
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(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
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|
(iv)
|
such other representation, warranty and covenant as may be agreed in writing between the
Administrative Agent, in its sole discretion, and such Lender.
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(b)
|
In addition, unless either sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or such Lender has provided another representation, warranty and covenant in accordance with sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of the Administrative Agent and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party that the Administrative Agent is not a fiduciary with respect to the assets of such Lender involved in such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement, any Loan Document or any documents related hereto or thereto); |
| This ‘8-K’ Filing | Date | Other Filings | ||
|---|---|---|---|---|
 | ||||
| 6/5/24 | ||||
| 6/29/19 | ||||
| Filed on / For Period End: | 6/5/19 | |||
| 4/30/19 | ||||
| 3/30/19 | 10-Q | |||
| 12/31/18 | 10-K, SD | |||
| 6/12/18 | ||||
| 12/10/15 | 8-K | |||
| 8/8/13 | 8-K | |||
| 5/13/11 | 8-K | |||
| 12/1/10 | 8-K | |||
| 11/9/10 | 10-Q, 8-K | |||
| List all Filings | ||||
As Of Filer Filing For·On·As Docs:Size Issuer Filing Agent 2/16/24 Vishay Intertechnology Inc. 10-K 12/31/23 86:18M 2/22/23 Vishay Intertechnology Inc. 10-K 12/31/22 83:18M 2/23/22 Vishay Intertechnology Inc. 10-K 12/31/21 85:18M 2/24/21 Vishay Intertechnology Inc. 10-K 12/31/20 87:18M |