(a)
(a)The Borrowers or any Guarantor or, solely in the case of
a New Term Loan Facility denominated in an Alternative Currency, any Restricted Subsidiary that is organized in a jurisdiction that is acceptable to the Administrative Agent (any such Guarantor or Restricted Subsidiary for so long as loans or commitments remain outstanding under the applicable Incremental Facility, an “Additional Borrower”) may, by written notice to the Administrative Agent, request the establishment of one or more new tranches of term facilities denominated in Dollars, an Alternative Currency or any other currency agreed to by the applicable Borrower, the Administrative Agent and the Lenders providing such New Term Loan Facility (each, a “New Term Loan Facility”) and/or increase the principal amount of the Term Loans, any Incremental Term Loans or any Extended Term Loans by requesting new term loan commitments to be added to such Loans (together with any New
Term Loan Facility, an “Incremental Term Facility” and, any Loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or request the establishment of one or more new tranches of Revolving Credit Commitments (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, an “Incremental Revolving Credit Facility” and, together with any Incremental Term Facility, “Incremental Facilities” and, the loans thereunder, “Incremental Revolving Credit Loans” and, together with any Incremental Term Loans, “Incremental Loans”); provided that
no existing Lender will have an obligation to make any Incremental Facility, nor will the Borrower have any obligation to approach any existing Lenders to provide any Incremental Facility, in an aggregate amount not in excess of the sum of (x) the greater of (i) $460,000,000 (or a principal amount equal to the Dollar Equivalent of $460,000,000) and (ii) 100% of Consolidated EBITDA as of the last day of the last Test Period for which financial statements have been delivered pursuant to Section 7.01 at any time outstanding, less any amount of Indebtedness incurred pursuant to clause (x)(i) of Section 8.02(p) and (y) an unlimited amount if, after giving effect to the incurrence of such amount, (i) in case of Incremental Facilities that are secured on a pari passu basis with the Obligations,
the First Lien Net Leverage Ratio is less than or equal to 3.50 to 1.00 on a Pro Forma Basis, (ii) in case of Incremental Facilities that are secured on a junior basis to the Obligations, the Senior Secured Net Leverage Ratio is less than or equal to 5.00 to 1.00 on a Pro Forma Basis and (iii) in case of Incremental Facilities that are unsecured, the Fixed Charge Coverage Ratio is less than or equal to 2.00 to 1.00 on a Pro Forma Basis (in each case, assuming (A) the Indebtedness being incurred as of such date of determination would be included in the definition of Consolidated Indebtedness, whether or not such Indebtedness would otherwise be included and (B) any Incremental Revolving Credit Facilities are fully drawn) and, in each instance, for an amount not less than $5,000,000 (or a principal amount equal to the Dollar Equivalent of $5,000,000) individually (or such lesser amount which shall be approved by the Administrative Agent); provided
that Incremental Facilities (1) shall be incurred pursuant to clause (y) above prior to utilization of any capacity pursuant to clause (x) above, (2) amounts incurred in reliance on clause (x) above concurrently with amounts incurred in reliance on clause (y) above shall not be included as Indebtedness in the First Lien Net Leverage Ratio, the Senior Secured Net Leverage Ratio or the Fixed Charge Coverage Ratio, as applicable, for purposes of calculating any amounts that may be incurred pursuant to clause (y) above on the same day and (3) if all or any portion of any Incremental Facility was originally incurred or issued in reliance on clause (x) above and thereafter such amount could have been incurred
pursuant to clause (y) above, such amount of such Incremental Facility shall be reclassified, as the applicable Borrower may elect from time to time, as having been incurred pursuant to clause (y) above and thereafter shall not count as utilization of clause (x) above; provided, further, that, notwithstanding the foregoing or anything to the contrary set forth herein, (1) Incremental Term Loans may be incurred without regard to any of the foregoing limits to the extent that the Net Cash Proceeds of such Incremental Term Loans are used on or about the date of incurrence to permanently prepay and refinance Term Loans of any Tranche selected by the applicable Borrower on a dollar-for-dollar basis, and any such Incremental Term Loans (the “Refinancing
Incremental Term Loans”) shall be deemed to have been incurred pursuant to this proviso, and (2) New Revolving Credit Facilities may be incurred without regard to the foregoing limits to the extent that such New Revolving Credit Facilities are used on or about the date of incurrence to refinance and permanently reduce Revolving Credit Commitments of any Tranche selected by Borrower on a dollar-for-dollar basis, and any such Revolving Credit Commitments thereunder (the “Refinancing Incremental Revolving Credit Commitments”) shall be deemed to have been incurred pursuant to this proviso. Each such notice shall specify (i) the date (each, an “Increased Amount Date”) on which the applicable Borrower proposes that the applicable Incremental Facility shall be effective, which shall be a date not less than 10 Business Days after the date on which such notice is
delivered to the Administrative Agent (or such shorter period otherwise agreed to by the Administrative Agent in its sole discretion), (ii) the identity of each Lender or Affiliate or other Person that is consented to by the Administrative Agent (which consent shall not be unreasonably withheld) and by the L/C Issuer to the extent such consent, if any, would be required under Section 11.06 for an assignment of Loans or Revolving Credit Commitments (any such Affiliate or other Person, a “New Incremental Lender”) to whom the Borrowers propose any portion of such Incremental Facility be allocated and the amounts of such allocations and (iii) whether such Incremental Facility is to be an Incremental Term Facility or Incremental Revolving Credit Facility. Such Incremental Facility shall become effective as of such Increased Amount Date; provided
that (A) no Event of Default or Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Facility (except that, with respect to this clause (A), solely to the extent the proceeds of such Incremental Facility are being or will be used to finance a Limited Condition Transaction and if agreed to by the lenders providing such Incremental Facility, such condition shall be that no Event of Default under Section 9.01(a), (f) or (g) hereunder shall exist), (B) both before and after giving effect to such Incremental Facility, each of the conditions set forth in Section 5.02 shall be satisfied and all fees and expenses owing in respect of such increase to the Administrative Agent and the Lenders have been paid
(except, solely to the extent the proceeds of such Incremental Facility are being or will be used to finance a Limited Condition Transaction and if agreed to by the lenders providing such Incremental Facility, (x) with respect to Section 5.02(a), such Incremental Facility shall only be subject to customary “funds certain provisions” and (y) with respect to Section 5.02(b), such condition shall be that no Event of Default under Section 9.01(a), (f) or (g) hereunder shall exist); (C) any Incremental Facility provided by any New Incremental Lender shall be effected pursuant to one or more joinder agreement (an “Incremental Amendment”) in form and substance satisfactory to the Administrative Agent
and executed and delivered by a Borrower (or Additional Borrower, if applicable) and the Administrative Agent, each of which shall be recorded in the Register; and (D) the Borrowers shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction.
(b)The creation or provision of any Incremental Facility or Incremental Loan (and, in connection therewith, any amendment to the terms of this Agreement that is necessary or appropriate to implement the provisions thereof or that is favorable to the then-existing Lenders, in each case, as reasonably determined by the Administrative Agent in its sole discretion) shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment.
(c)The
terms and provisions of any New Revolving Credit Facility (other than pricing, maturity and fees) shall be, except as otherwise set forth herein or in the joinder agreement set forth in Section 2.14(a), substantially identical to the existing Revolving Credit Facility; provided that, (i) no New Revolving Credit Facility shall mature earlier than, or require any scheduled amortization or mandatory commitment reduction prior to, the Revolving Credit Maturity Date of any Tranche of Revolving Credit Loans (or, in the case of Refinancing Incremental Revolving Credit Commitments, the final maturity date of the Tranche of Revolving Credit Commitments that are being refinanced), (ii) any guarantor of any New Revolving Credit Facility shall also be a Guarantor; provided, that, in the event any New Revolving Credit Facility is incurred by a
Foreign Subsidiary of ESI, such New Revolving Credit Facility shall be permitted to be guaranteed by persons that are not Guarantors so long as such New Term Loan Facility is subject to customary collateral allocation arrangements reasonably satisfactory to the Administrative Agent, (iii) if secured, such New Revolving Credit Facility shall not be secured by any assets that do not constitute Collateral and may not be secured pursuant to security documentation that is materially more restrictive, when taken as a whole, to the Loan Parties than the Loan Documents; provided, that, in the event any New Term Loan Facility is incurred by a Foreign Subsidiary of ESI, such New Term Loan Facility shall be permitted to be secured by assets in accordance with Section 7.12, which assets may or may not also secure the Obligations but which shall be subject to customary collateral allocation
arrangements reasonably satisfactory to the Administrative Agent and (iv) each New Revolving Credit Facility shall rank pari passu or junior in right of payment and pari passu or junior with respect to security with the Obligations or may be unsecured (and to the extent subordinated in right of payment or security, shall be subject to intercreditor arrangements reasonably satisfactory to the Administrative Agent).
(d)The terms and provisions of any Incremental Term Loans shall be, if such Incremental Term Loans are not Tranche B-1 Term Loans, except as otherwise set forth herein or in the joinder agreement set forth in Section
2.14(a), substantially identical to the Tranche B-1 Term Loans, as applicable; provided that, except as otherwise set forth herein or in the joinder agreement set forth in clause (a), then (i) the weighted average life to maturity of any New Term Loan Facility shall be no shorter than the weighted average life to maturity such refinanced Tranche of the Term Loans, (or, in the case of any New Term Loans that are Refinancing Incremental Term Loans, the weighted average life to maturity of the Tranche of Term Loans that are being refinanced), (ii) the final maturity date with respect to any New Term Loans shall be no earlier than the maturity date of such refinanced Tranche (or, in the case of any New Term Loans that are refinancing Incremental Term Loans, the final maturity date of the Tranche of Term Loans that are being refinanced), (iii) if the Yield on any New Term Loans incurred no later than 12
months after the Closing Date exceeds by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”) the Applicable Rate then in effect for any Term Loans, then the Applicable Rate then in effect for Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the New Term Loans (and if the margins on the New Term Loans are subject to a leveraged-based pricing grid, appropriate increases to the Applicable Rates for the Term Loans, consistent with the foregoing, shall be made) (this clause (iii), the “MFN Adjustment”), (iv) any guarantor of any New Term Loan Facility shall also be a Guarantor; provided, that, in the event any New Term Loan Facility is incurred by a Foreign Subsidiary of ESI, such New Term Loan Facility shall be
permitted to be guaranteed by persons that are not Guarantors so long as such New Term Loan Facility is subject to customary collateral allocation arrangements reasonably satisfactory to the Administrative Agent, (v) if secured, such New Term Loan Facility shall not be secured by any assets that do not constitute Collateral and may not be secured pursuant to security documentation that is more restrictive to the Loan Parties than the Loan Documents; provided, that, in the event any New Term Loan Facility is incurred by a Foreign Subsidiary of ESI, such New Term Loan Facility shall be permitted to be secured by assets in accordance with Section 7.12, which assets may or may not also secure the Obligations but which shall be subject to customary collateral allocation arrangements reasonably satisfactory to the Administrative Agent, (vi) each New Term Loan Facility shall rank pari
passu or junior in right of payment and pari passu or junior with respect to security with the Obligations or may be unsecured (and to the extent subordinated in right of payment or security, shall be subject to intercreditor arrangements reasonably satisfactory to the Administrative Agent) and (vii) any New Term Loan Facility may be denominated in Euros or Pounds Sterling so long as (A) the borrower thereunder is a Restricted Subsidiary that is organized in a jurisdiction that is acceptable to the Administrative Agent and (B) such New Term Loan Facility is subject to guarantee, collateral and collateral allocation arrangements that are reasonably satisfactory to ESI and the Administrative Agent. Each joinder agreement referred to in Section 2.14(a) may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan
Documents as may be necessary or appropriate, as reasonably determined by the Administrative Agent in its sole discretion, to effect the provision of this Section 2.14.
(e)Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Loans that are to be additional Tranche B-1 Term Loans or Initial Revolving Credit Loans, as applicable, and when originally made, are included in each Borrowing of outstanding Tranche B-1 Term Loans or Initial Revolving Credit Loans, as applicable, on a pro rata basis. This may be accomplished at the discretion of the Administrative Agent by requiring each outstanding Eurocurrency Rate Loan to be converted into a Base Rate Loan on the date of each such Incremental Loan, or by allocating a portion of each such Incremental Loan to
each outstanding applicable Eurocurrency Rate Loans on a pro rata basis, even though as a result thereof such Incremental Loan may effectively have a shorter Interest Period than the Loans included in the Borrowing of which they are a part (and notwithstanding any other provision of this Agreement that would prohibit such an initial Interest Period). Any conversion of Eurocurrency Rate Loans to Base Rate Loans made pursuant to the preceding sentence shall be subject to Section 3.05. If any Incremental Loans is to be allocated to an existing Interest Period for a Eurocurrency Rate Loan then, subject to Section 2.08(b), the interest rate applicable to such Incremental Loan for the remainder of such Interest Period shall equal the Adjusted Eurocurrency Rate for a period approximately equal to the remainder of such Interest Period (as determined by the Administrative Agent two Business
Days before the date such Incremental Loan is made) plus the Applicable Rate then in effect. In addition, to the extent any Incremental Term Loans are to be additional Tranche B-1 Term Loans, the applicable scheduled amortization payments under Section 2.07 required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
(f)Prior to the Increased Amount Date, if the Restricted Subsidiary incurring the Incremental Facility is an Additional Borrower, (i) such Subsidiary shall deliver to the Lenders providing the Incremental Facility (including any New Incremental Lender) and the Administrative Agent, such documentation and other information reasonably requested by such Lenders or the Administrative Agent for purposes of complying with all necessary “know-your-customer”
or other similar checks under all applicable laws and regulations and no written objection submitted by any of the Lenders or the Administrative Agent within five (5) Business Days of the date of receipt of such documentation and other information shall have been given by such Lenders or the Administrative Agent and (ii) if such Additional Borrower is a Foreign Subsidiary, the Administrative Agent may amend this Agreement (which amendments may include, without limitation, Section 3.01 and the definition of “Non-Excluded Taxes”) and the other Loan Documents to include such Subsidiary as an Additional Borrower hereunder, which amendment must be mutually agreed to by the Administrative Agent, ESI, the applicable Additional Borrower, and the Lenders providing the Incremental Facility but without the consent of any other Lender (provided that no such amendment shall materially
adversely affect the rights of any Lender that has not consented to such amendment); provided that neither the Administrative Agent nor any Lender shall be materially adversely affected by the addition of such Additional Borrower. Any obligations in respect of borrowings by any Borrower or any Additional Borrower under this Agreement will constitute “Obligations” for all purposes of the Loan Documents. If the Incremental Facility is incurred in a currency other than Dollars, this Agreement may be amended to reflect such new currency hereunder, which amendment must be mutually agreed to by the Administrative Agent and ESI.
(g)For the avoidance of doubt, no amendment,
waiver or consent pursuant to Section 11.01 shall impose any greater restriction on the ability of any Lender to assign any of its rights or obligations hereunder with respect to any New Term Loan Facility without the written consent of the holders of a majority of the aggregate unpaid principal amount of such Term Loan Commitments and New Term Loans outstanding under such New Term Loan Facility
(h)Any Incremental Facility that is secured on a junior lien basis to the Obligations or is unsecured shall be established pursuant to separate documentation from the Loan Documents.
For the avoidance of doubt, the provisions of Section 2.13 shall not be construed to apply to any Incremental Loans in accordance with this Section 2.14.
For
the avoidance of doubt, any prepayment of Loans with the proceeds received in connection with the incurrence of Incremental Term Loans pursuant to this Section 2.14 shall be deemed an optional prepayment under Section 2.05(a).
2.15 Defaulting Lender. (a) Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(i) Waivers and Amendments. Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definition of Required Lenders and in Section
11.01.
(ii) Defaulting Lender Waterfall. Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VII or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 11.08 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second,
to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to the L/C Issuers hereunder; third, to cash collateralize the L/C Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.15(d); fourth, as the Borrowers may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and ESI, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) cash collateralize the
L/C Issuers’ future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with Section 2.15(d); sixth, to the payment of any amounts owing to the Lenders or the L/C Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Lender or the L/C Issuers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth,
to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or L/C Borrowing in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 5.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and L/C Borrowings owed to, all non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or L/C Borrowings owed to, such Defaulting Lender until such time as all Loans and L/C Exposure are held by the Lenders pro rata in accordance with the Commitments under the applicable Facility without giving effect to Section 2.15(a)(v). Any
payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.15(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(iii) Subject to Section 11.06(b)(viii) hereof, the failure of any Defaulting Lender to make the Loan to be made by it as part of any Borrowing shall constitute a material breach by such Defaulting Lender of this Agreement and, to the extent such Defaulting Lender fails to cure the default pursuant to Section 2.15(b) hereof within five Business Days shall entitle the Borrowers to replace the Defaulting Lender with one or more substitute Lenders, and the Defaulting Lender shall have no right to refuse to be replaced hereunder. The notice from the Borrowers to the
Administrative Agent and such Defaulting Lender being replaced shall specify an effective date for such replacement, which date shall be at least two Business Days, but not later than 15 Business Days, after the date such notice is given. Prior to the effective date of such replacement, the Defaulting Lender shall execute and deliver an Assignment and Acceptance, subject only to the Defaulting Lender being repaid its share of the outstanding Obligations without any premium or penalty of any kind whatsoever. If the Defaulting Lender shall refuse or fail to execute and deliver any such Assignment and Acceptance prior to the effective date of such replacement, the Defaulting Lender shall be deemed to have executed and delivered such Assignment and Acceptance. The replacement of any Defaulting Lender shall be made in accordance with the terms of Section 11.15.
(iv) Certain
Fees. (A) No Defaulting Lender shall be entitled to receive any Commitment Fee for any period during which that Lender is a Defaulting Lender (and the Borrowers shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender).
(B) Each Revolving Credit Lender that is a Defaulting Lender shall be entitled to receive Letter of Credit Fees for any period during which that Lender is a Defaulting Lender only to the extent allocable to its Pro Rata Share of the available amount of Letters of Credit for which it has provided cash collateral pursuant to Section 2.15(d).
(C) With respect to any Letter of Credit Fees not required to be paid to any Revolving Credit Lender that is a Defaulting Lender (as “Defaulting Revolving Credit Lender”)
pursuant to clause (B) above, the Borrowers shall (x) pay to each non-Defaulting Revolving Credit Lender that portion of any such fee otherwise payable to such Defaulting Revolving Credit Lender with respect to such Defaulting Revolving Credit Lender’s obligation to fund participations in respect of Letters of Credit that have been reallocated to such non-Defaulting Revolving Credit Lender pursuant to Section 2.15(a)(v) below, (y) pay to each L/C Issuer the amount of any such fee otherwise payable to such Defaulting Revolving Credit Lender to the extent allocable to such L/C Issuer’s Fronting Exposure to such Defaulting Revolving Credit Lender and (z) not be required to pay the remaining amount of any such fee.
(v) Reallocation
of Participations to Reduce Fronting Exposure. All or any part of such Defaulting Revolving Credit Lender’s obligation to fund participations in respect of Letters of Credit shall be reallocated among the non-Defaulting Revolving Credit Lenders in accordance with their respective Pro Rata Shares (calculated without regard to such Defaulting Revolving Credit Lender’s Revolving Credit Commitment) but only to the extent that (x) the conditions set forth in Section 5.02 are satisfied at the time of such reallocation (and, unless the Borrowers shall have otherwise notified the Administrative Agent at such time, the Borrowers shall be deemed to have represented and warranted that such conditions are satisfied at such time), and (y) the Outstanding Amount of each non-Defaulting Revolving Credit Lender’s Revolving Credit Loans and L/C Obligations (with the aggregate amount of each Revolving Credit Lender’s
funded participations in L/C Obligations (prior to giving effect to such reallocation) being deemed ‘held’ by such Revolving Credit Lender for this purpose) do not exceed the Revolving Credit Commitment of such non-Defaulting Revolving Credit Lender. Subject to Section 11.23, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a non-Defaulting Lender as a result of such non-Defaulting Lender’s increased exposure following such reallocation.
(vi) Cash Collateral. If the reallocation described in clause (v) above cannot, or can only partially, be effected, the Borrowers shall, without prejudice to any right or remedy available to it
hereunder or under law, cash collateralize any L/C Issuer’s Fronting Exposure (after giving effect to any partial reallocation pursuant to clause (v) above) in accordance with the procedures set forth in Section 2.15(d) for so long as such Obligations are outstanding.
(b) Defaulting Lender Cure. If the Borrowers, the Administrative Agent and each L/C Issuer agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any cash collateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine
to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit to be held pro rata by the Lenders in accordance with the Commitments under the applicable Facility (without giving effect to Section 2.15(a)(v)), whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of any Borrower while that Lender was a Defaulting Lender; provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
(c) New
Letters of Credit. So long as any Revolving Credit Lender is a Defaulting Lender, no L/C Issuer shall be required to issue, extend, renew or increase any Letter of Credit unless it is satisfied that it will have no Fronting Exposure after giving effect thereto (determined after giving effect to Section 2.15(a)(v) and any cash collateral provided by such Defaulting Lender).
(d) Cash Collateral. (i) At any time that there shall exist a Defaulting Lender, within one Business Day following the written request of the Administrative Agent or any L/C Issuer (with a copy to the Administrative Agent) the Borrowers shall cash collateralize such L/C Issuer’s Fronting Exposure with respect to such Defaulting Lender (determined after giving effect to Section 2.15(a)(v) and any
cash collateral provided by such Defaulting Lender) in an amount not less than the Minimum Collateral Amount.
(ii) The Borrowers, and to the extent provided by any Defaulting Revolving Credit Lender, such Defaulting Revolving Credit Lender, hereby grant to the Administrative Agent, for the benefit of each L/C Issuer, and agrees to maintain, a first priority security interest in all such cash collateral as security for the Defaulting Revolving Credit Lender’s obligation to fund participations in respect of Letters of Credit, to be applied pursuant to clause (iii) below. If at any time the Administrative
Agent determines that cash collateral is subject
to any right or claim of any Person other than the Administrative Agent and such L/C Issuer as herein provided (other than Permitted Liens), or that the total amount of such cash collateral is less than the Minimum Collateral Amount, the Borrowers will, promptly upon demand by the Administrative Agent, pay or provide to the Administrative Agent additional cash collateral in an amount sufficient to eliminate such deficiency (after giving effect to any cash collateral provided by the Defaulting Revolving Credit Lender).
(iii) Notwithstanding anything to the contrary contained in this Agreement, cash collateral provided under this Section 2.15 in respect of Letters of Credit shall be applied to the satisfaction of the Defaulting Revolving Credit Lender’s obligation to fund participations in respect of Letters of Credit (including, as to cash collateral provided by a Defaulting Revolving
Credit Lender, any interest accrued on such obligation) for which the cash collateral was so provided, prior to any other application of such property as may otherwise be provided for herein.
(iv) Cash collateral (or the appropriate portion thereof) provided to reduce any L/C Issuer’s Fronting Exposure shall no longer be required to be held as cash collateral pursuant to this Section 2.15 following (i) the elimination of the applicable Fronting Exposure (including by the termination of Defaulting Lender status of the applicable Lender), or (ii) the determination by the Administrative Agent and such L/C Issuer that there exists excess cash collateral; provided that, subject to this Section 2.15 the Person providing cash collateral and such L/C Issuer may agree that cash collateral shall be
held to support future anticipated Fronting Exposure or other obligations; provided, further, that to the extent that such cash collateral was provided by a Borrower, such cash collateral shall remain subject to the security interest granted pursuant to the Loan Documents.
2.16 Extension of Term Loans and Revolving Credit Commitments.
(a)The Borrowers may at any time and from time to time request that all or a portion of the (i) Term Loans of one or more Tranches existing at the time of such request (each, an “Existing
Term Loan Tranche”, and the Term Loans of such Tranche, the “Existing Term Loans”) or (ii) Revolving Credit Commitments and Revolving Credit Loans of one or more Tranches existing at the time of such request (each, an “Existing Revolving Tranche” and together with the Existing Term Loan Tranches, each an “Existing Tranche”, and the Revolving Credit Commitments of such Existing Revolving Tranche, the “Existing Revolving Credit Commitments”, and the Revolving Credit Loans of such Existing Revolving Tranche, the “Existing Revolving Loans” and, together with the Existing Term Loans, the “Existing Loans”), in each case, be converted to extend the scheduled maturity date(s) of any
payment of principal with respect to all or a portion of any principal amount of any Existing Tranche (any such Existing Tranche which has been so extended, an “Extended Term Tranche” or “Extended Revolving Credit Tranche”, as applicable, and each an “Extended Tranche”, and the Term Loans, Revolving Credit Commitments or Revolving Credit Loans, as applicable, of such Extended Tranches, the “Extended Term Loans”, “Extended Revolving Credit Commitments” or “Extended Revolving Credit Loans”, as applicable and, collectively, the “Extended Loans”) and to provide for other terms consistent with this Section 2.16;
provided that (i) no Event of Default pursuant to Section 9.01(a), (f) or (g) shall have occurred and be continuing at the time of such extension or would exist after giving effect to such extension, (ii) any such request shall be made by ESI to all Lenders within any one or more Tranches of Term Loans or Revolving Credit Commitments and Revolving Credit Loans, as applicable, (whether under one or more Tranches) on a pro rata basis (based on the aggregate outstanding principal amount of the applicable Term Loans or on the aggregate Revolving Credit Commitments within any one or more Tranches, as applicable) and (iii) any applicable Minimum Extension Condition shall be satisfied unless waived by the Borrowers in its sole discretion. In order to establish any Extended Tranche, the Borrowers
shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Tranche) (an “Extension Request”) setting forth the proposed terms of the Extended Tranche to be established, which terms shall be substantially similar, when taken as a whole, to those applicable to the Existing Tranche from which they are to be extended (the “Specified Existing Tranche”), except (x) all or any of the final maturity dates of such Extended Tranches may be delayed to later dates than the final maturity dates of the Specified Existing Tranche, (y) (A) the interest margins with respect to the Extended Tranche may be higher or lower than the interest margins for the Specified Existing Tranche and/or (B) additional fees may be payable to the Lenders providing such Extended Tranche in addition to or in lieu of any increased margins
contemplated by the preceding clause (A) and (z) in the case of an Extended Term Tranche, so long as the weighted average life to maturity of such Extended Tranche would be no shorter than the remaining weighted average life to maturity of the Specified Existing Tranche, amortization rates with respect to the Extended Term Tranche may be higher or lower than the amortization rates for the Specified Existing Tranche, in each case to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.16 or otherwise, assignments and participations of Extended Tranches shall be governed by the same or, at the Borrowers’ discretion, more restrictive assignment and participation provisions applicable to Tranche B-1 Term Loans or Initial Revolving Credit Commitments, as applicable,
set forth in Section 11.06. No Lender shall have any obligation to agree to have any of its Existing Loans converted into an Extended Tranche pursuant to any Extension Request. Any Extended Tranche shall constitute a separate Tranche of Loans from the Specified Existing Tranches and from any other Existing Tranches (together with any other Extended Tranches so established on such date).
(b)The Borrowers shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as the Administrative Agent may agree in its reasonable discretion) prior to the date on which Lenders under the applicable Existing Tranche or Existing Tranches are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Specified Existing Tranche converted into an Extended
Tranche shall notify the Administrative Agent (each, an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Specified Existing Tranche that it has elected to convert into an Extended Tranche. In the event that the aggregate amount of the Specified Existing Tranche subject to Extension Elections exceeds the amount of Extended Tranches requested pursuant to the Extension Request, the Specified Existing Tranches subject to Extension Elections shall be converted to Extended Tranches on a pro rata basis based on the amount of Specified Existing Tranches included in each such Extension Election. In connection with any extension of Loans pursuant to this Section 2.16 (each, an “Extension”), the Borrowers shall agree to such procedures regarding timing, rounding and other administrative adjustments
to ensure reasonable administrative management of the credit facilities hereunder after such Extension, as may be established by, or acceptable to, the Administrative Agent, in each case acting reasonably to accomplish the purposes of this Section 2.16. The Borrowers may amend, revoke or replace an Extension Request pursuant to procedures reasonably acceptable to the Administrative Agent at any time prior to the date (the “Extension Request Deadline”) on which Lenders under the applicable Existing Term Loan Tranche or Existing Term Loan Tranches are requested to respond to the Extension Request. Any Lender may revoke an Extension Election at any time prior to 5:00 p.m. on the date that is two Business Days prior to the Extension Request Deadline, at which point the Extension Request becomes irrevocable (unless otherwise agreed by Borrower). The revocation of an Extension Election
prior to the Extension Request Deadline shall not prejudice any Lender’s right to submit a new Extension Election prior to the Extension Request Deadline.
(c)Extended Tranches shall be established pursuant to an amendment (an “Extension Amendment”) to this Agreement (which may include amendments to provisions related to maturity, interest margins or fees referenced in clauses (x) and (y) of Section 2.16(a), or, in the case of Extended Term Tranches, amortization rates referenced in clause (z)
of Section 2.16(a), or amendments to any other terms (including representations and warranties, conditions, prepayments, covenants or events of default) that are necessary or appropriate to implement the provisions thereof or that are favorable to the then-existing Lenders, as reasonably determined by the Administrative Agent in its sole discretion, and which, in each case, except to the extent expressly contemplated by the last sentence of this Section 2.16(c) and notwithstanding anything to the contrary set forth in Section 11.01, shall not require the consent of any Lender other than the Extending Lenders with respect to the Extended Tranches established thereby and any L/C Issuers with respect to the Extended Tranches established thereby) executed by the Loan Parties, the Administrative Agent, the Extending Lenders with respect
to the Extended Tranches and any L/C Issuers with respect to the Extended Tranches. Subject to the requirements of this Section 2.16 and without limiting the generality or applicability of Section 11.01 to any Section 2.16 Additional Amendments, any Extension Amendment may provide for additional terms and/or additional amendments other than those referred to or contemplated above (any such additional amendment, a “Section 2.16 Additional Amendment”) to this Agreement and the other Loan Documents; provided that such Section 2.16 Additional Amendments do not become effective prior to the time that such Section 2.16 Additional Amendments have been consented to (including, without limitation, pursuant to consents applicable to holders of any Extended
Tranches provided for in any Extension Amendment) by such of the Lenders, Loan Parties and other parties (if any) as may be required in order for such Section 2.16 Additional Amendments to become effective in accordance with Section 11.01; provided, further, that no Extension Amendment may provide for (i) any Extended Tranche to be secured by any Collateral or other assets of any Loan Party that does not also secure the applicable Existing Tranches or be guaranteed by any Person other than the Guarantors and (ii) so long as any Existing Term Loan Tranches are outstanding, any mandatory prepayment provisions that do not also apply to the Existing Term Loan Tranches (other than Existing Term Loan Tranches secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions)
on a pro rata or otherwise more favorable basis. Notwithstanding anything to the contrary in Section 11.01, any such Extension Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the reasonable judgment of ESI and the Administrative Agent, to effect the provisions of this Section 2.16; provided that the foregoing shall not constitute a consent on behalf of any Lender to the terms of any Section 2.16 Additional Amendment. Notwithstanding anything to the contrary contained in this Agreement, on any date on which any Existing Tranche is converted to extend the related scheduled maturity date(s) in accordance with Section 2.16(a) (an “Extension Date”), in the
case of the Specified Existing Tranche of each Extending Lender, the aggregate principal amount of such Specified Existing Tranche shall be deemed reduced by an amount equal to the aggregate principal amount of Extended Tranche so converted by such Lender on such date, and such Extended Tranches shall be established as a separate Tranche from the Specified Existing Tranche and from any other Existing Tranches (together with any other Extended Tranches so established on such date).
(d)If, in connection with any proposed Extension Amendment, any Lender declines to consent to the applicable extension on the terms and by the deadline set forth in the applicable Extension Request (each such other Lender, a “Non-Extending
Lender”) then the Borrowers may, on notice to the Administrative Agent and the Non-Extending Lender, replace such Non-Extending Lender by causing such Lender to (and such Lender shall be obligated to) assign pursuant to Section 11.06 (with the assignment fee and any other costs and expenses to be paid by the Borrowers in such instance) all of its rights and obligations under this Agreement to one or more assignees; provided that neither the Administrative Agent nor any Lender shall have any obligation to the Borrowers to find a replacement Lender; provided, further, that the applicable assignee shall have agreed to provide Extended Loans on the terms set forth in such Extension Amendment; provided, further,
that all obligations of the Borrowers owing to the Non-Extending Lender relating to the Existing Loans so assigned shall be paid in full by the assignee Lender to such Non-Extending Lender concurrently with such Assignment and Assumption. In connection with any such replacement under this Section 2.16, if the Non-Extending Lender does not execute and deliver to the Administrative Agent a duly completed Assignment and Assumption by the later of (A) the date on which the replacement Lender executes and delivers such Assignment and Assumption and (B) the date as of which all obligations of the Borrowers owing to the Non-Extending Lender relating to the Existing Loans so assigned shall be paid in full by the assignee Lender to such Non-Extending Lender, then such Non-Extending Lender shall be deemed to have executed and delivered such Assignment and Assumption as of such date and ESI shall be entitled (but not obligated) to
execute and deliver such Assignment and Assumption on behalf of such Non-Extending Lender.
(e)Following any Extension Date, with the written consent of ESI, any Non-Extending Lender may elect to have all or a portion of its Existing Loans deemed to be an Extended Loan under the applicable Extended Tranche on any date (each date a “Designation Date”) prior to the maturity date of such Extended Tranche; provided that such Lender shall have provided written notice to ESI and the Administrative Agent at least ten (10) Business Days prior to such Designation Date (or such shorter period as the Administrative Agent may agree in its reasonable discretion); provided, further, that no greater amount shall be
paid by or on behalf of ESI or any of its Affiliates to any such Non-Extending Lender as consideration for its extension into such Extended Tranche than was paid to any Extended Lender as consideration for its Extension into such Extended Tranche. Following a Designation Date, the Existing Loans held by such Lender so elected to be extended will be deemed to be Extended Loans of the applicable Extended Tranche, and any Existing Loans held by such Lender not elected to be extended, if any, shall continue to be “Existing Loans” of the applicable Tranche.
With respect to all Extensions consummated by the Borrowers pursuant to this Section 2.16, (i) such Extensions shall not constitute optional or mandatory payments or prepayments for purposes of Sections 2.05(a) and (b) and (ii) no Extension
Request is required to be in any minimum amount or any minimum increment, provided that ESI may elect to specify as a condition (a “Minimum Extension Condition”) to consummating any such Extension that a minimum amount (to be determined and specified in the relevant Extension Request in the Borrowers’ sole discretion and may be waived by the Borrowers) of Existing Loans of any or all applicable Tranches be extended. The Administrative Agent and the Lenders hereby consent to the transactions contemplated by this Section 2.16 (including, for the avoidance of doubt, payment of any interest, fees or premium in respect of any Extended Loans on such terms as may be set forth in the relevant Extension Request) and hereby waive the requirements of any provision of this Agreement (including, without limitation, Sections
2.05(a) and (b) and 2.07) or any other Loan Document that may otherwise prohibit any such Extension or any other transaction contemplated by this Section 2.16.
For the avoidance of doubt, the provisions of Section 2.13 shall not be construed to apply to any Extension in accordance with this Section 2.16.
For the avoidance of doubt, any prepayment of Loans with the proceeds received in connection with the incurrence of Term Loans and Revolving Credit Commitments pursuant to this Section 2.16 shall be deemed an optional prepayment under Section 2.05(a).
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes.
(a)Except as required by applicable law, any and all payments by or on behalf of any Loan Party to or for the account of the Administrative Agent or any Lender under any Loan Document shall be made free and clear of and without deduction for any and all present or future taxes, duties, levies, imposts, deductions, assessments, fees, withholdings (including back-up withholding) or similar charges imposed by any Governmental Authority, and all interest, penalties
or other liabilities with respect thereto (hereinafter referred to as “Taxes”), excluding, in the case of the Administrative Agent and each Lender, (A) taxes imposed on or measured by its overall net income, and franchise taxes imposed on it (in lieu of net income taxes), in each case, by the jurisdiction (or any political subdivision thereof) under the Laws of which the Administrative Agent or such Lender, as the case may be, is organized, maintains a lending office, or is subject to tax by virtue of any present or former connection (other than solely having executed, delivered, performed its obligations, received or perfected a security interest under, received payments under, engaged in any other transaction pursuant to or enforced the Loan Documents, or sold or assigned an interest in any Loan or Loan Document), (B) branch profits taxes imposed by a jurisdiction described
under clause (A) above, (C) in the case of a Foreign Lender with respect to a US Borrower (other than an assignee pursuant to a request by the Borrowers under Section 11.15), any United States federal withholding tax that is imposed on amounts payable to such Foreign Lender under the law applicable at the time such Lender becomes a party to this Agreement (or designates a new lending office) except to the extent that such Lender (or its assignor, if any) was entitled, immediately before designation of a new lending office (or assignment), to receive additional amounts with respect to such withholding tax pursuant to this Section 3.01, (D) taxes attributable to the failure to comply with Section 11.14 and (E) any U.S. federal withholding taxes imposed under FATCA (all such non-excluded taxes,
duties, levies, imposts, deductions, assessments, fees, withholdings or similar charges, interest, penalties and other liabilities being hereinafter referred to as “Non-Excluded Taxes”). Notwithstanding the foregoing, if any Taxes are required to be deducted from or in respect of any sum payable under any Loan Document to the Administrative Agent or any Lender, (i) such Loan Party shall make such deductions, (ii) such Loan Party shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with applicable Laws, (iii) if such Tax is a Non-Excluded Tax, the sum payable by the Loan Party shall be increased as necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 3.01), each of the Administrative Agent and such Lender receives an amount equal to the sum it would
have received had no such deductions been made on account of Non-Excluded Taxes and (iv) as soon as practicable after the date of such payment, such Loan Party shall furnish to the Administrative Agent (which shall forward the same to such Lender) or Lender (as the case may be) the original or a certified copy of a receipt evidencing payment thereof to the extent such a receipt is issued therefor, or other written proof of payment thereof that is reasonably satisfactory to the Administrative Agent.
(b)In addition, each Loan Party agrees to pay any and all present or future stamp, court or documentary, intangible, recording, filing or similar taxes and any other excise or property taxes or charges or similar levies which arise from any payment made under any Loan Document or from the execution, delivery, performance, enforcement or registration of, or otherwise with respect to, any Loan Document, excluding
any such taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 11.15) (hereinafter referred to as “Other Taxes”).
(c)Each Loan Party agrees to indemnify the Administrative Agent and each Lender for (i) the full amount of any Non-Excluded Taxes and Other Taxes (including any Non-Excluded Taxes or Other Taxes imposed or asserted by any jurisdiction on amounts payable under this Section 3.01) payable or paid by the Administrative Agent and such Lender or required to be withheld or deducted from a payment to such party and (ii) any reasonable expenses
arising therefrom or with respect thereto, in each case whether or not such Non-Excluded Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority, except for any interest and penalties with respect to Non-Excluded Taxes or Other Taxes to the extent such Non-Excluded Taxes or Other Taxes are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of the Administrative Agent or such Lender. Payment under this Section 3.01(c) shall be made within 30 days after the date such Lender or the Administrative Agent makes a demand therefor. A certificate as to the amount of such payment or liability delivered to the Loan Party by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.
(d)If
any Lender is entitled to a refund, as determined by such Lender in its sole discretion exercised in good faith (including any credit in lieu of a refund) of any Taxes with respect to which it has been indemnified pursuant to this Section 3.01 (including by the payment of additional amounts pursuant to this Section 3.01), such Lender shall pay over such refund to the applicable Loan Party (but only to the extent of additional amounts paid by the Loan Party under this Section 3.01 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses of such Lender and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided, that the Loan Party, upon the request of such Lender, agrees to repay the amount
paid over to such Loan Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to such Lender in the event such Lender is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (d), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (d) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph shall not be construed to require any Lender to make available its tax returns (or any other information relating to its Taxes which it deems confidential) to any Loan Party or any
other Person.
3.02 Illegality. If any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending Office to make, maintain or fund Eurocurrency Rate Loans, or to determine or charge interest rates based upon the Adjusted Eurocurrency Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars or any Alternative Currency in the applicable interbank market then, on notice thereof by such Lender to the Borrowers through the Administrative Agent, (i) any obligation of such Lender to make or continue Eurocurrency Rate Loans in the affected currency or currencies or to convert Base Rate Loans to Eurocurrency Rate Loans shall be suspended until such Lender notifies the Administrative Agent and
the Borrowers that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, each Loan Party shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay such Eurocurrency Rate Loans or, if applicable and such Loans are denominated in Dollars, convert all Eurocurrency Rate Loans of such Lender to Base Rate Loans, either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurocurrency Rate Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Eurocurrency Rate Loans. Upon any such prepayment or conversion, the applicable Loan Party shall also pay accrued interest on the amount so prepaid or converted. Each Lender agrees to designate a different Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such
Lender.
3.03 Inability to Determine Rates.
(a)If the Required Lenders reasonably determine that (i) for any reason adequate and reasonable means do not exist for determining the Eurocurrency Rate or the Adjusted Eurocurrency Rate for any requested Interest Period with respect to a proposed Eurocurrency Rate Loan (including because the LIBO Rate is not available or published on a current basis), (ii) they are unable to obtain matching deposits in the London inter-bank market at or about 11:00 a.m. (London time) on the second Business Day before the making of a Borrowing in sufficient amounts to fund their respective
Loans as a part of such Borrowing during its Interest Period or (iii) the Eurocurrency Rate or the Adjusted Eurocurrency Rate for any Interest Period for such Loans will not adequately reflect the cost to such Required Lenders of making, funding or maintaining their respective Eurocurrency Rate Loans for such Interest Period, the Administrative Agent will promptly so notify ESI and each Lender. Thereafter, the obligation of the Lenders to make or maintain Eurocurrency Rate Loans shall be suspended until the Administrative Agent (upon the instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, the Borrowers may revoke any pending request for a Borrowing of, conversion to or continuation of Eurocurrency Rate Loans or, failing that, in the case of Eurocurrency Rate Loans will be deemed to have converted such request into a request for a Committed Borrowing of Base Rate Loans in Dollars in (or, in the case of any applicable Loan in an Alternative
Currency, in an amount equal to the Dollar Equivalent thereof) the amount specified therein.
(b)Notwithstanding anything to the contrary contained in this Agreement or the other Loan Documents, if at any time (i) there ceases to exist a LIBO Rate or other interbank rate in the London market regulated or otherwise overseen or authorized by the ICE Benchmark Administration or U.K. Financial Conduct Authority for interest periods greater than one Business Day or (ii) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that the circumstances set forth in clause (i) of Section 3.03(a) have arisen and such circumstances are unlikely to be temporary or (iii) the circumstances in clause (i) of Section 3.03(a)
have not arisen but the supervisor for the administrator of the US LIBO Rate, EURIBO Rate or Alternate Currency LIBO Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the US LIBO Rate, EURIBO Rate or Alternate Currency LIBO Rate shall no longer be used for determining interest rates for loans, then the Administrative Agent and ESI or the applicable Borrower shall endeavor to promptly establish an alternate rate of interest to the Adjusted Eurocurrency Rate that gives due consideration to the then prevailing market convention for determining a rate of interest for fixed periods for syndicated loans in the United States at such time (it being agreed that such rate shall at no time be less than 0.00% per annum), and shall enter into an amendment to this Agreement to reflect such alternate rate of interest and such other related
changes as may be applicable which are agreed by ESI or the applicable Borrower and the Administrative Agent at such time. Notwithstanding anything to the contrary in the Loan Documents such amendment shall become effective without any further action or consent of any other party to Loan Documents so long as the Administrative Agent shall not have received, within five Business Days of the date notice of such alternate rate of interest is provided to the Lenders, a written notice from the Required Lenders stating that they object to such amendment.
3.04 Increased Cost and Reduced Return; Capital Adequacy; Reserves on Eurocurrency Rate Loans.
(a)If
any Lender determines that as a result of the introduction of or any change in or in the interpretation of any Law, in each case after the Closing Date, or such Lender’s compliance therewith, there shall be any increase in the cost to such Lender of agreeing to make or making, funding or maintaining Eurocurrency Rate Loans or (as the case may be) issuing or participating in Letters of Credit, or a reduction in the amount received or receivable by such Lender in connection with any of the foregoing (excluding for purposes of this Section 3.04(a) any such increased costs or reduction in amount resulting from (i) Non-Excluded Taxes or Other Taxes, in each case, addressed by Section 3.01, (ii) changes in the basis of taxation of overall net income or overall gross income by the United States or any foreign jurisdiction or any political subdivision of either thereof under the Laws
of which such Lender is organized or has its Lending Office, and (iii) reserve requirements contemplated by Section 3.04(c)), then from time to time upon demand of such Lender (with a copy of such demand to the Administrative Agent), the Borrowers shall pay to such Lender such additional amounts as will compensate such Lender for such increased cost or reduction.
(b)If any Lender determines that the introduction of any Law regarding capital adequacy or liquidity or any change therein or in the interpretation thereof, in each case after the Closing Date, or compliance by such Lender (or its Lending Office) therewith, has the effect of reducing the rate of return on the capital of such Lender or any corporation controlling such Lender as a consequence of such Lender’s obligations hereunder (taking into consideration its policies with respect to capital adequacy
and such Lender’s desired return on capital), then from time to time upon demand of such Lender (with a copy of such demand to the Administrative Agent), the Borrowers shall pay to such Lender such additional amounts as will compensate such Lender for such reduction.
(c)The Borrowers shall pay to each Lender, as long as such Lender shall be required to maintain reserves with respect to liabilities or assets consisting of or including Eurocurrency funds or deposits (currently known as “Eurocurrency Liabilities”), additional interest on the unpaid principal amount of each Eurocurrency Rate Loan equal to the actual costs of such reserves allocated to such Loan by such Lender (as determined by such Lender in good faith, which determination shall be conclusive), which shall be due and payable on each date on which interest is payable on such Loan, provided
the Borrowers shall have received at least 15 days’ prior notice (with a copy to the Administrative Agent) of such additional interest from such Lender. If a Lender fails to give notice 15 days prior to the relevant Interest Payment Date, such additional interest shall be due and payable 15 days from receipt of such notice.
(d)Failure or delay on the part of any Lender, any L/C Issuer or the Administrative Agent to demand compensation pursuant to this Section 3.04 shall not constitute a waiver of such Lender’s, such L/C Issuer’s or the Administrative Agent’s right to demand such compensation; provided that the Borrowers shall not be under any obligation to compensate any Lender, any L/C Issuer or the Administrative Agent under Section 3.04(a) or (b)
for increased costs or reductions with respect to any period prior to the date that is 120 days prior to such request if such Lender, such L/C Issuer or the Administrative Agent knew or could reasonably have been expected to know of the circumstances giving rise to such increased costs or reductions and of the fact that such circumstances would result in a claim for increased compensation by reason of such increased costs or reductions; provided, further, that the foregoing limitation shall not apply to any increased costs or reductions arising out of the retroactive application of any change in law within such 120-day period. The protection of this Section 3.04 shall be available to each Lender, each L/C Issuer and the Administrative Agent regardless of any possible contention of the invalidity or inapplicability of the change in
law that shall have occurred or been imposed.
(e)Notwithstanding anything herein to the contrary, for purposes of this Section 3.04, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “change in law” or “change in the interpretation of law”,
regardless of the date enacted, adopted or issued.
3.05 Funding Losses. Upon demand of any Lender (with a copy to the Administrative Agent) from time to time, the Borrowers shall promptly compensate such Lender for and hold such Lender harmless from any loss, cost or expense incurred by it as a result of:
(a)any continuation, conversion, payment or prepayment of any Loan other than a Base Rate Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise);
(b)any failure by any Borrower (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the date or in the amount
notified by any Borrower;
(c)any assignment of a Eurocurrency Rate Loan on a day other than the last day of the Interest Period therefor as a result of a request by any Borrower pursuant to Section 11.15; or
(d)any payment by the Borrowers of the principal of or interest on any Revolving Credit Loan (or interest due thereon) denominated in a different currency from the currency in which the applicable Revolving Credit Loan is denominated;
including any loss of anticipated profits and any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the deposits from which such funds were obtained. The Borrowers shall also pay any customary administrative fees charged by such
Lender in connection with the foregoing.
For purposes of calculating amounts payable by the Borrowers to the Lenders under this Section 3.05, each Lender shall be deemed to have funded each Eurocurrency Rate Loan made by it at the Adjusted Eurocurrency Rate for such Loan by a matching deposit or other borrowing in the London interbank eurocurrency market for a comparable amount and for a comparable period, whether or not such Eurocurrency Rate Loan was in fact so funded.
3.06 Matters Applicable to all Requests for Compensation.
(a)A certificate of the Administrative Agent or any Lender claiming compensation under this Article III and setting forth the additional amount or amounts to be paid to it hereunder
and the calculation thereof in reasonable detail shall be conclusive in the absence of manifest error. In determining such amount, the Administrative Agent or such Lender may use any reasonable averaging and attribution methods.
(b)Upon any Lender’s making a claim for compensation under Section 3.01 or 3.04, the Borrowers may replace such Lender in accordance with Section 11.15.
3.07 Pro Rata Treatment. Except as required under Section 3.02 or otherwise in this Agreement, each Borrowing, each payment or prepayment of principal of any Borrowing, each payment of interest on the Loans, each payment of the Commitment Fees, each reduction
of the Term Loan Commitments or Revolving Credit Commitments and each conversion of any Borrowing to or
continuation of any Borrowing as a Borrowing of any Type shall be allocated pro rata among the Lenders within the Tranche or particular Borrowing being paid or prepaid, as the case may be, in accordance with the terms of this Agreement, in accordance with their respective applicable Commitments (or, if such Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Loans). Each Lender agrees that in computing such Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Lender’s percentage of such Borrowing to the
next higher or lower whole dollar amount.
3.08 Survival. All of the Borrowers’ obligations under this Article III shall survive termination of the Term Loan Commitments, the Total Revolving Credit Commitments and repayment of all other Obligations hereunder.
ARTICLE IV
GUARANTY
4.01 The Guaranty. (a) Each of the Guarantors hereby jointly and severally guarantees to the Administrative Agent, for the ratable benefit of the Secured Parties, as hereinafter provided, as primary obligor and not as surety, the prompt payment of the Obligations in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralization
or otherwise) strictly in accordance with the terms thereof. The Guarantors hereby further agree that if any of the Obligations are not paid in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralization or otherwise), the Guarantors will, jointly and severally, promptly pay the same, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Obligations, the same will be promptly paid in full when due (whether at extended maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralization or otherwise) in accordance with the terms of such extension or renewal.
(b) Notwithstanding any provision to the contrary contained herein or in any other of the Loan Documents, the obligations of each Guarantor under this Agreement and the other Loan Documents shall be limited to an aggregate
amount equal to the largest amount as will result in such obligations with respect hereto and thereto not constituting a fraudulent transfer or conveyance after giving full effect to the liability under such guarantee set forth in Article IV hereof and its related contribution rights but before taking into account any liabilities under any other guarantee by such Guarantor.
4.02 Obligations Unconditional. (a) The obligations of the Guarantors under Section 4.01(a) are joint and several, absolute and unconditional, irrespective of the value, genuineness, validity, regularity or enforceability of any of the Loan Documents or any other agreement or instrument referred to therein, or any substitution, release, impairment or exchange of any other guarantee of or security for any of the Obligations,
and, to the fullest extent permitted by applicable law, irrespective of any other circumstance whatsoever which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor, it being the intent of this Section 4.02(a) that the obligations of the Guarantors hereunder shall be absolute and unconditional under any and all circumstances. Each Guarantor agrees that such Guarantor, as applicable, shall have no right of subrogation, indemnity, reimbursement or contribution against any Loan Party for amounts paid under this Article IV until such time as the Obligations have been paid in full.
(b) Without limiting the generality of Section 4.02(a), it is agreed that, to the fullest extent permitted by law, the occurrence of any one or more of the following shall not
alter or impair the liability of any Guarantor hereunder which shall remain absolute and unconditional as described above:
(i) at any time or from time to time, without notice to any Guarantor, the time for any performance of or compliance with any of the Obligations shall be extended, or such performance or compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions of any of the Loan Documents or any other agreement or instrument referred to in the Loan Documents shall be done or omitted;
(iii) the maturity of any of the Obligations shall be accelerated, or any of the Obligations shall be modified, supplemented or amended in
any respect, or any right under any of the Loan Documents or any other agreement or instrument referred to in the Loan Documents shall be waived or any other guarantee of any of the Obligations or any security therefor shall be released, impaired or exchanged in whole or in part or otherwise dealt with; or
(iv) any of the Obligations shall be determined to be void or voidable (including, without limitation, for the benefit of any creditor of any Guarantor) or shall be subordinated to the claims of any Person (including, without limitation, any creditor of any Guarantor).
(c) With respect to its obligations hereunder, each Guarantor hereby expressly waives diligence, presentment, demand of payment, protest and all notices whatsoever, and any requirement that the Administrative Agent or any Lender exhaust any right, power or remedy or proceed against any Person under any of the Loan
Documents or any other agreement or instrument referred to in the Loan Documents or against any other Person under any other guarantee of, or security for, any of the Obligations.
4.03 Reinstatement. The obligations of the Guarantors under this Article IV shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of any Person in respect of the Obligations is rescinded or must be otherwise restored by any holder of any of the Obligations whether as a result of any proceedings in bankruptcy or reorganization or otherwise, and each Guarantor agrees that it will indemnify the Arrangers, the Administrative Agent, the Collateral Agent, the Syndication Agent, each L/C Issuer and each Lender on demand for all reasonable costs and expenses (including, without limitation, reasonable fees and expenses of counsel) incurred by such Persons in connection
with such rescission or restoration, including any such reasonable costs and expenses incurred in defending against any claim alleging that such payment constituted a preference, fraudulent transfer or similar payment under any bankruptcy, insolvency or similar law.
4.04 Certain Additional Waivers. Each Guarantor agrees that such Guarantor shall have no right of recourse to security for the Obligations except through the exercise of rights of subrogation pursuant to Section 4.02 and through the exercise of rights of contribution pursuant to Section 4.06.
4.05 Remedies. The Guarantors agree that, to the fullest extent permitted by law, as between the Guarantors on the one hand, and the Administrative Agent,
for the ratable benefit of the Secured Parties on the other hand, the Obligations may be declared to be forthwith due and payable as provided in Section 9.02 (and shall be deemed to have become automatically due and payable in the circumstances provided in Section 9.02) for purposes of Section 4.01(a) notwithstanding any stay, injunction or other prohibition preventing such declaration (or preventing the Obligations from becoming automatically due and payable) as against any other Person and that, in the event of such declaration (or the Obligations being deemed to have become automatically due and payable), the Obligations (whether or not due and payable by any other Person) shall forthwith become due and payable by the Guarantors for purposes of Section 4.01(a).
4.06 Rights
of Contribution. The Guarantors hereby agree as among themselves that, in connection with payments made hereunder, each Guarantor shall have a right of contribution from each other Guarantor with respect to the Obligations in accordance with applicable Law. Such contribution rights shall be subordinate and subject in right of payment to the Obligations until such time as the Obligations have been Fully Satisfied, and none of the Guarantors shall exercise any such contribution rights until the Obligations have been paid in full.
4.07 Guarantee of Payment; Continuing Guarantee. The guarantee given by the Guarantors in this Article IV is a guaranty of payment and not of collection, is a continuing guarantee, and shall apply to all Obligations, whenever arising.
4.08 Keepwell. Each
Qualified ECP Guarantor hereby jointly and severally absolutely, unconditionally and irrevocably undertakes to provide such funds or other support as may be needed from time to time by each other Loan Party to honor all of its obligations under this Guaranty in respect of Swap Obligations (provided, however, that each Qualified ECP Guarantor shall only be liable under this Section 4.08 for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this Section 4.08, or otherwise under this Guaranty, as it relates to such Loan Party, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations of each Qualified ECP Guarantor under this Section shall remain in full force and effect until a Discharge of Guaranteed Obligations. Each Qualified ECP Guarantor intends
that this Section 4.08 constitute, and this Section 4.08 shall be deemed to constitute, a “keepwell, support, or other agreement” for the benefit of each other Loan Party for all purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
ARTICLE V
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
5.01 Conditions to Initial Credit Extension. The obligation of each Lender to honor any Request for Credit Extension on the Closing Date is subject to the following conditions precedent:
(a)The Administrative Agent shall have received from each Loan Party that is a party hereto a counterpart of this Agreement signed on behalf of such party.
(b)The
Administrative Agent shall have received: (i) from the Loan Parties, executed counterparts of the applicable Collateral Agreement, (ii) from the Borrowers, a Note executed by the Borrowers for each Lender that requests such a Note, (iii) with respect to each Loan Party, UCC-1 financing statements, as applicable, in a form appropriate for filing in the state of organization or formation, the jurisdiction in which its chief executive office is located or the jurisdiction in which its assets are located, as the case may be, of such Loan Party or for any Loan Party that is a Foreign Subsidiary, the District of Columbia, (iv) executed Intellectual Property Security Agreements as required pursuant to the Pledge and Security Agreement, (v) delivery of stock certificates for certificated Equity Interests that constitutes Collateral, together with appropriate instruments of transfer endorsed in blank, and (vi) all agreements or instruments representing or evidencing the Collateral
accompanied by instruments of transfer and stock powers undated and endorsed in blank.
(c)The Administrative Agent shall have received a customary closing certificate from a secretary, assistant secretary or similar officer or authorized representative of each Loan Party that is a party hereto, in each case, certifying as to (i) resolutions duly adopted by the board of directors (or equivalent governing body) of each such Loan Party authorizing the execution, delivery and performance of this Agreement (and the Loan Documents or other documents executed in connection herewith or therewith), (ii) the accuracy and completeness of copies of the certificate or articles
of incorporation, association or organization (or memorandum of association or other equivalent thereof) of each such Loan Party certified by the relevant authority of the jurisdiction of organization of each such Loan Party and copies of the by-laws or operating, management, partnership or similar agreement of each such Loan Party and that such documents or agreements have not been amended (except as otherwise attached to such certificate and certified therein as being the only amendments thereto as of such date), (iii) incumbency (to the extent applicable) and specimen signatures of each officer, director or authorized representative executing any Loan Document on behalf of each such Loan Party and (iv) the good standing (or subsistence or existence) of each such Loan Party from the Secretary of State (or similar official) of the state or other jurisdiction of such Loan Party’s
organization (to the extent relevant and available in the jurisdiction of organization of such Loan Party). (d)The Borrowers shall have paid or caused to have been paid to the Administrative Agent and the Collateral Agent all reasonable out-of-pocket costs and expenses of the Administrative Agent required in connection with this Agreement, including expenses associated with the arrangement, negotiation and preparation of this Agreement, and the reasonable and documented fees, disbursements and other charges of Latham & Watkins LLP.
(e)The Administrative Agent shall have received the executed legal opinions of (i) Kane Kessler P.C., counsel to ESI and, to the limited extent New York law is applicable, the other Loan Parties party hereto, as customary for transactions of this type, and (ii) local counsel to the Loan Parties party hereto,
as customary for transactions of this type.
(f)Each Lender shall have received, if requested at least five Business Days in advance of the Closing Date, a Note, payable to the order of such Lender, duly executed by the applicable Borrower.
(g)To the extent requested at least 10 Business Days prior to the Closing Date, the Lenders shall have received (i) all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including, without limitation, the Patriot Act, and (ii) a Beneficial Ownership Certification in relation to any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, in each case, at least five Business Days prior to the Closing Date.
(h)The
Administrative Agent shall have received a Request for Credit Extension prior to (i) 12:00 noon, New York City time, one Business Day prior to the Closing Date in the case of Base Rate Loans and (ii) 12:00 p.m., New York City time, three Business Days prior to the Closing Date in the case of Eurocurrency Rate Loans (in each case, or such shorter period as may be agreed to by the Administrative Agent in its sole discretion) requesting that each Lender make the Loans on the requested funding date and specifying the amount to be borrowed.
(i)The Administrative Agent shall have received a certificate from a financial officer of ESI substantially in the form attached hereto as Exhibit D, to the effect that, immediately before and after giving effect to the Transactions contemplated hereby, ESI and its Subsidiaries,
taken as a whole, are Solvent. (j)The Administrative Agent shall have received confirmation that the conditions set forth in Sections 5.02(a) and (b) have been met.
(k)The Administrative Agent shall have received the Audited Financial Statements, the Unaudited Financial Statements and the Pro Forma Financial Statements.
(l)The Arrangers shall have received all fees due and payable by a Borrower on the Closing Date as separately agreed to by such parties and a Borrower shall have paid or, substantially
concurrently with the initial Credit Extension, shall pay on the Closing Date any other fees separately agreed that are due and payable on the Closing Date.
(m)The Administrative Agent shall have received reasonably satisfactory evidence that, prior to or substantially simultaneously with the initial Credit Extension, the Existing Credit Agreement Refinancing shall have been consummated.
(n)Prior to or substantially contemporaneously with the initial Credit Extension, the Arysta Sale shall have been consummated.
For purposes of determining compliance with the conditions specified in this Section 5.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other
matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender.
5.02 Conditions to all Credit Extensions. The obligation of each Lender to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of Loans to the other Type, or a continuation of Eurocurrency Rate Loans) is subject to the following conditions precedent:
(a)The representations and warranties of each Loan Party contained in Article VI or any other Loan Document shall be true and correct in all material respects on and as of the date of such Credit Extension, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects
as of such earlier date; provided that any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates.
(b)No Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds therefrom.
(c)The Administrative Agent and, if applicable, the L/C Issuer shall have received a Request for Credit Extension in accordance with the requirements hereof.
(d)Solely with respect to any Credit Extension under the Revolving Credit Facility, if as of the date of such Credit Extension and after giving effect thereto,
the Total Outstandings (excluding Letters of Credit which have been Cash Collateralized in accordance with this Agreement) shall exceed 30.0% of the Total Revolving Credit Commitments, the financial covenant set forth in Section 8.10(a) shall be satisfied, calculated at the time of such Credit Extension by looking back to the last day of the prior fiscal quarter to determine if ESI would have been in compliance with the financial covenant set forth in Section 8.10(a) as of such fiscal quarter end as if the financial covenant had been tested for such fiscal quarter (after giving pro forma effect to such Credit Extension).
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Each
Loan Party jointly and severally represents and warrants to the Arrangers, the Administrative Agent, the Collateral Agent, the L/C Issuers and the Lenders (as of the date such Loan Party becomes a Loan Party and each date such Loan Party is deemed to make such representations and warranties thereafter) that:
6.01 Existence, Qualification and Power; Compliance with Laws. Each Loan Party (a) is duly organized or formed, validly existing and in good standing (to the extent such concepts are applicable in such Loan Party’s jurisdiction of organization) under the Laws of the jurisdiction of its incorporation or organization, (b) has all requisite power and authority and all requisite governmental licenses, authorizations, consents and approvals to (i) own or lease its assets and carry on its business (except, in the case of any Loan Party other than the Borrowers, to the extent that
failure to do so could not reasonably be expected to have a Material Adverse Effect) and (ii) execute, deliver and perform its obligations under the Loan Documents and each other agreement or instrument contemplated hereby or thereby to which it is a party, (c) is duly qualified and is licensed and in good standing under the Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification or license, and (d) is in compliance with all Laws (including the Act); except in each case referred to in clause (b)(i), (c) or (d), to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
6.02 Authorization; No Contravention. The execution,
delivery and performance by each Loan Party of each Loan Document to which such Person is or is to be a party, and the consummation of the Transactions (only to the extent such Loan Party was a Loan Party on the effective date thereof) are within such Loan Party’s corporate or other powers, have been duly authorized by all necessary corporate or other organizational action, and do not and will not (a) contravene the terms of any of such Person’s Organization Documents; (b)(I) conflict with or result in any breach or contravention of any material Contractual Obligation to which such Person is a party or affecting such Person or the properties of such Person or any of its Restricted Subsidiaries, or (II) conflict with or result in any breach or contravention of, or the creation of any material Lien under, or require any material payment to be made under (i) any Contractual Obligation
to which such Person is a party or affecting such Person or the properties of such Person or any of its Restricted Subsidiaries or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject; or (c) violate any Law that would adversely affect the rights of the Lenders, the Administrative Agent or the Collateral Agent under the Loan Documents. No Loan Party or any Restricted Subsidiary is in violation of any Law or in breach of any such Contractual Obligation, the violation or breach of which could be reasonably likely to have a Material Adverse Effect. 6.03 Governmental Authorization; Other Consents. No approval, consent, exemption, authorization, or other action by, or notice to, or filing (other than security
filings and those for which such approval, consent, exemption, authorization has been obtained or such action has been taken or notice or filing made) with, any Governmental Authority or any other Person is necessary or required, except, in each case, to the extent that failure to obtain or file the same, as applicable, could not be reasonably expected to have a Material Adverse Effect in connection with (i) the execution, delivery or performance by, or enforcement against, any Loan Party of this Agreement or any other Loan Document, or for the consummation of the Transactions (to the extent such Loan Party was a Loan Party on the effective date thereof), (ii) the grant by any Loan Party of the Liens granted by it pursuant to the Collateral Documents, (iii) the perfection or maintenance of the Liens created under the Collateral Documents (including the first priority nature thereof) or (iv) the exercise by the Administrative Agent, the Collateral Agent or any Lender
of its rights under the Loan Documents or the remedies in respect of the Collateral pursuant to the Collateral Documents.
6.04 Binding Effect. This Agreement has been, and each other Loan Document, when delivered hereunder, will have been, duly executed and delivered by each Loan Party that is party hereto and thereto. This Agreement constitutes, and each other Loan Document when so delivered will constitute, a legal, valid and binding obligation of such Loan Party, enforceable against each Loan Party that is party hereto and thereto in accordance with its terms, except to the extent that enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium other similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law).
6.05 Financial Statements; No Material Adverse Effect. (a) The Audited Financial Statements and the Unaudited Financial Statements delivered to the Administrative Agent (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; (ii) fairly present, in all material respects, the financial condition of the Borrowers and the Restricted Subsidiaries as of the date thereof and their results of operations for the period covered thereby in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly
noted therein; and (iii) show all material indebtedness and other liabilities, direct or contingent, of the Borrowers and the Restricted Subsidiaries as of the date thereof, including liabilities for taxes, material commitments and Indebtedness, to the extent required by GAAP; subject, in the case of the Unaudited Financial Statements, to (x) the absence of footnote disclosures and other presentation items and (y) changes resulting from normal year-end adjustments, which would not be material in the aggregate. (b) The Pro Forma Financial Statements have been prepared in good faith, based on assumptions believed by ESI to be reasonable as of the date of delivery thereof, and present fairly in all material respects on a pro forma basis the estimated financial position of ESI and its Restricted Subsidiaries
which were not sold in connection with the Arysta Sale as at the 12-month period ending September 30, 2018 and their estimated results of operations for the periods covered thereby, assuming that the Transactions had actually occurred at such date or at the beginning of the periods covered thereby. (c) No event, change or condition has occurred since December 31, 2017, that has had, or could reasonably be expected to have, a Material Adverse Effect. 6.06 Litigation. There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of the Loan Parties after due and diligent investigation, threatened or contemplated, at law, in equity, in arbitration or before any Governmental Authority, by or against any Loan Party or
any Restricted Subsidiary or against any of their properties or revenues that (a) purport to affect or pertain to this Agreement, any other Loan Document or the consummation of the transactions contemplated by this Agreement or any other Loan Document, or (b) except as specifically disclosed on Schedule 6.06 (the “Disclosed Litigation”), either individually or in the aggregate, if determined adversely, could reasonably be expected to have a Material Adverse Effect.
6.07 No Default. Neither any Loan Party nor any Restricted Subsidiary is in default under or with respect to, or a party to, any Contractual Obligation that could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. No Default has occurred and is continuing or would result from the
consummation of the transactions contemplated by this Agreement or any other Loan Document
6.08 Properties. (a) Except as would not have a Material Adverse Effect, each Loan Party and each Restricted Subsidiary have good record, valid and marketable title in fee simple to, or valid leasehold interests in (to the extent such ownership or leasing concepts are applicable to such property in the jurisdiction in which it resides), all Material Real Property necessary in the ordinary conduct of its business, free and clear of all Liens except for Permitted Liens and defects in title as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect. The property of each Loan Party and each of its Restricted Subsidiaries, taken as a whole, (i) is in good operating order, condition and repair (ordinary wear and tear excepted) and (ii) constitutes all the property which is necessary for the business and operations of the Loan Parties as presently conducted except to the extent that any failure would not reasonably be expected to result in a Material Adverse Effect. (b) Section II.E to the Perfection Certificate dated the Closing Date contains, in all material respects, a true and complete list of each interest in Material Real Property located in the United States (i) owned by ESI as of the Closing Date and (ii) leased, subleased or otherwise occupied or utilized by ESI, as lessee, sublessee, franchisee or licensee, as of the Closing Date.
(c) No
Mortgage encumbers improved Real Property that is located in an area that has been identified by the Secretary of Housing and Urban Development as an area having special flood hazards within the meaning of the National Flood Insurance Act of 1968 unless flood insurance available under such Act has been obtained in accordance with Section 7.07.
6.09 Environmental Compliance. (a) Each Loan Party and each Restricted Subsidiary conduct in the ordinary course of business a review of the effect of existing Environmental Laws, Environmental Liabilities and Environmental Claims on their respective businesses, operations and properties, and as a result thereof such Loan Party has reasonably concluded that, except as specifically disclosed in Schedule 6.09, compliance with such Environmental Laws
or any Environmental Claims could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(b) Except as otherwise set forth on Schedule 6.09 or otherwise would not reasonably be expected to result in a Material Adverse Effect, Hazardous Materials have not been Released and are not present at, on, under, in, or about any of the properties currently or formerly owned, leased or operated by any Loan Party or any Restricted Subsidiary in a quantity, manner or condition which could reasonably be expected to (i) require investigation, removal, or remediation by any Loan Party under Environmental Law or otherwise give rise to Environmental Liability of any Loan Party, (ii) interfere with any Loan Party’s continued operations or (iii) impair the fair saleable value of any Collateral.
(c) Except as otherwise
set forth on Schedule 6.09, all Hazardous Materials generated, used, treated, handled or stored at, or transported to or from, any property currently owned or operated by any Loan Party or any Restricted Subsidiary have been properly stored, handled, recycled, re-used or disposed of in a manner not reasonably expected to cause a Material Adverse Effect.
(d) Except as otherwise set forth on Schedule 6.09, neither any Loan Party nor any Restricted Subsidiary is subject to any pending or threatened Environmental Claims or Environmental Liabilities which could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(e) Each Loan Party and each Restricted Subsidiary are in compliance with, and possesses all Environmental Permits required pursuant to, Environmental
Laws, except to the extent such
non-compliance or failure to possess could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(f) No Loan Party or Restricted Subsidiary has entered into or agreed to any consent decree, order, or settlement or other agreement, or is subject to any judgment, decree, or order or other agreement, in any judicial, administrative, arbitral, or other forum for dispute resolution, relating to compliance with Environmental Law or any Environmental Liability that individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(g) No Loan Party or Restricted
Subsidiary has assumed or retained, by contract or operation of law, any Environmental Liabilities of any kind, whether fixed or contingent, known or unknown that individually or in the aggregate can reasonably be expected to have a Material Adverse Effect. 6.10 Insurance. The properties of the Loan Parties and the Restricted Subsidiaries are insured with financially sound and reputable insurance companies not Affiliates of any Loan Party, in such amounts, with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where the applicable Loan Party or Restricted Subsidiary operates, provided
that no coverage in respect of terrorism shall be required. As of the Closing Date, such insurance is in full force and effect and all premiums have been duly paid. 6.11 Taxes. Each Loan Party and each Restricted Subsidiary have filed all material Federal, state, foreign and other tax returns and reports required to be filed, and have paid all material Federal, state, foreign and other taxes, assessments, fees and other material governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except those which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided in accordance with GAAP. There is no proposed tax assessment against any Loan Party or any Restricted Subsidiary that would, if made, have a Material Adverse Effect.
6.12 ERISA
Compliance. (a) Each Plan is in compliance in all material respects with the applicable provisions of ERISA, the Code and other Federal or state Laws and the Borrowers and all applicable ERISA Affiliates have performed in all material respects their obligations with respect to each Plan. Each Plan that is intended to qualify under Section 401(a) of the Code has received a favorable determination letter from the IRS or an application for such a letter is currently being processed by the IRS with respect thereto and each trust related to such plan has been determined to be exempt under 501(a) of the Code and, to the knowledge of the Loan Parties, nothing has occurred which would prevent, or cause the loss of, such qualification. Each Loan Party and each ERISA Affiliate have made all required contributions to each Plan subject to Section 412 or 430 of the Code (except where such would not result in material liability), and no application for a funding
waiver or an extension of any amortization period pursuant to Section 412 of the Code or Section 303 of ERISA has been made with respect to any Plan.
(b) There are no pending or, to the best knowledge of the Loan Parties, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that could reasonably be expected to have a Material Adverse Effect. There has been no non-exempt prohibited transaction or violation of the fiduciary responsibility rules with respect to any Plan that could reasonably be expected to have a Material Adverse Effect.
(c) Except as set forth on Schedule 6.12 or as could not reasonably be expected to have a Material Adverse Effect: (i) no ERISA Event has occurred or is reasonably expected to occur; (ii) no
Loan
Party nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability under Title IV of ERISA with respect to any Pension Plan (other than premiums due and not delinquent under Section 4007 of ERISA); (iii) no Loan Party nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in such liability) under Section 4201 or 4243 of ERISA with respect to a Multiemployer Plan; (iv) no Loan Party nor any ERISA Affiliate has engaged in a transaction that could reasonably be expected to be subject to Sections 4069 or 4212(c) of ERISA; (v) as of the most recent valuation date for any Pension Plan that precedes the Closing Date, the amount of unfunded benefit liabilities (as defined in Section 4001(a)(18) of ERISA), individually or in the aggregate for all Pension Plans (excluding for purposes of such computation any Pension Plans with
respect to which assets exceed benefits liabilities) was zero; (vi) as of the most recent valuation date that precedes the Closing Date for each Multiemployer Plan for which the actuarial report is available, the potential liability of the Loan Parties and their respective ERISA Affiliates for a complete withdrawal from such Multiemployer Plan (within the meaning of Section 4203 of ERISA), when aggregated with such potential liability for a complete withdrawal from all Multiemployer Plans, based on information available pursuant to section 4221(e) of ERISA was zero; and (vii) except to the extent required under Section 4980B of the Code or any applicable state or local law, no Plan provides health or welfare benefits (through the purchase of insurance or otherwise) for any retired or former employee of any Loan Parties or any of their respective ERISA Affiliates.
(d) With respect to each scheme or arrangement mandated by a government
other than the United States (a “Foreign Government Scheme or Arrangement”) and with respect to each employee benefit plan maintained or contributed to by any Loan Party or any Restricted Subsidiary that is not subject to United States law (a “Foreign Plan”) except as could not reasonably be expected to have a Material Adverse Effect:
(A)Any and all employer and employee contributions due and required by law or by the terms of any Foreign Government Scheme or Arrangement or any Foreign Plan have been made in all material respects, or, if applicable, accrued, in accordance with normal accounting practices.
(B)Each Foreign Plan required to be registered has been registered and has been maintained in good standing with applicable regulatory authorities
and is in compliance in all material respects with applicable law.
6.13 Subsidiaries; Equity Interests. As of the Closing Date, no Loan Party (to the extent such Loan Party was a Loan Party on the Closing Date) has any Subsidiaries other than those specifically disclosed in Schedule 6.13, and all of the outstanding Equity Interests in such Subsidiaries have been validly issued, are fully paid and non-assessable and are directly or indirectly owned by a Loan Party (except for certain immaterial director’s qualifying shares and as a result of the PDH Minority Interest)
free and clear of all Liens except those created under the Collateral Documents and as otherwise disclosed in Schedule 6.13. All of the outstanding Equity Interests in each Loan Party and its Subsidiaries have been validly issued, are fully paid and non-assessable (to the extent such concepts are applicable in such Loan Party’s jurisdiction of organization). 6.14 Margin Regulations; Investment Company Act. (a) The Borrowers are not engaged, nor will they engage, principally or as one of their important activities, in the business of purchasing or carrying margin stock (within the meaning of Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying margin stock and no proceeds of any Borrowings or drawings
under
any Letter of Credit will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock.
(b) No Loan Party, nor any Person Governing any Loan Party, nor any Restricted Subsidiary is or is required to be registered as an “investment company” under the Investment Company Act of 1940. Neither the making of any Loan, nor the issuance of any Letters of Credit, nor the application of the proceeds or repayment thereof by any Borrower, nor the consummation of the other transactions contemplated by the Loan Documents, will violate any provision of any such Act or any rule, regulation or order of the SEC thereunder.
6.15 Disclosure. (a)
Each Loan Party has disclosed to the Administrative Agent and the Lenders all agreements, instruments and corporate or other restrictions to which it or any of its Restricted Subsidiaries is subject, and all other matters known to it, that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect. All written information heretofore furnished by any Borrower or any of its Restricted Subsidiaries to the Administrative Agent or any Lender for purposes of or in connection with this Agreement, the Transactions or any other transaction contemplated hereby is, and all such information hereafter furnished by or on behalf of any Loan Party to the Administrative Agent or any Lender will be, true and accurate in all material respects on the date as of which
such information is stated or certified. (b) As of the Closing Date, the information included in the Beneficial Ownership Certification, if applicable, is true and correct in all material respects.
6.16 Compliance with Laws. Except as otherwise provided in the representations above, each Borrower and each Restricted Subsidiary is in compliance in all material respects with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its properties, except in such instances in which (a) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted or (b) the failure to comply therewith, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
6.17 Intellectual
Property; Licenses, Etc. Each Loan Party and each Restricted Subsidiary own, or possess the right to use, all of the trademarks, service marks, trade names, copyrights, patents and all other intellectual property rights that are used in the operation of the business of the Borrowers and Restricted Subsidiaries, except to the extent that individually, or, in the aggregate, it could not reasonably be expected to have a Material Adverse Effect. To the best knowledge of each Loan Party, no slogan or other advertising device, product, process, method, substance, part or other material now employed by any Loan Party or any Restricted Subsidiary infringes upon any rights held by any other Person except where such infringement could not reasonably be expected to have a Material Adverse Effect. Except as disclosed on Schedule 6.17,
no claim or litigation regarding any of the foregoing is pending or, to the best knowledge of each Loan Party, threatened, which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. 6.18 Solvency. Immediately after the consummation of the Transactions to occur on the Closing Date and immediately following the making of each Loan and after giving effect to the application of proceeds of each Loan, ESI and its Subsidiaries, on a consolidated basis, are Solvent. 6.19 Casualty, Etc. Neither the business nor the properties of any Loan Party or any Restricted Subsidiary are affected by any fire, explosion, accident, strike, lockout or other labor dispute,
drought, storm, hail, earthquake, embargo, act of God or of the public enemy or other casualty (whether or not covered by insurance) that could be reasonably likely to have a Material Adverse Effect.
6.20 Perfection, Etc. Except as permitted under the Collateral Documents, all filings and other actions necessary to perfect and protect the security interest in the Collateral created under the Collateral Documents have been duly made or taken and are in full force and effect, and the Collateral Documents create in favor of the Collateral Agent for the benefit of the Secured Parties a valid and, together with such filings and other actions, perfected first
priority security interest in the Collateral (subject to Liens permitted under the Loan Documents), securing the payment of the Obligations, and all filings and other actions necessary to perfect and protect such security interest have been duly taken. The Loan Parties are the legal and beneficial owners of the Collateral free and clear of any Lien, except for the liens and security interests created or permitted under the Loan Documents.
6.21 Swap Obligations. Neither the Borrowers nor any Restricted Subsidiaries have incurred any outstanding obligations under any Swap Contracts, other than Permitted Swap Obligations. 6.22 Labor Matters. As
of the Closing Date, there are no strikes, lockouts or slowdowns against ESI or any of its Restricted Subsidiaries pending or, to the knowledge of ESI, threatened. Except as provided on Schedule 6.22, the hours worked by and payments made to employees of the Borrowers and the Restricted Subsidiaries have not been in violation of the Fair Labor Standards Act or any other applicable Federal, state, local or foreign law dealing with such matters, except for such violations that could not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect. All payments due from ESI or any of its Restricted Subsidiaries, or for
which any claim may be made against ESI or any of its Restricted Subsidiaries, on account of wages and employee health and welfare insurance and other benefits, have been paid or accrued as a liability on the books of ESI or any of its Restricted Subsidiaries, except for such failures that could not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect. 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 to which ESI or any of its Restricted Subsidiaries is bound. 6.23 OFAC
and Anti-Corruption Laws.
(a)Neither of the Borrowers nor their Subsidiaries, nor their respective directors, officers or, to the knowledge of the Borrower and their Subsidiaries, their employees or agents, is (i) a Sanctioned Person; (ii) operating, organized or ordinarily resident in a Sanctioned Country; or (iii) engaged, directly or knowingly indirectly, in dealings or transactions involving Sanctioned Persons or Sanctioned Countries, in each of clauses (i), (ii), and (iii), such that would cause the Borrower or any of its Subsidiaries to be in violation of Sanctions except to the extent that any such violation
would not reasonably be expected to cause a Material Adverse Effect. The Borrowers and their Subsidiaries will not use the proceeds of the Loans, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner, or other Person to fund activities or business of or with any Sanctioned Person or Sanctioned Country in violation of Sanctions. (b)The Borrowers, their Subsidiaries and their respective directors, officers and employees and, to the knowledge of the Borrowers and their Subsidiaries, their agents, are and for the past five years have been in material compliance with Sanctions, except to
the extent that failure to comply would not reasonably be expected to result in a Material Adverse Effect.
(c)Except to the extent disclosed in any public filing by ESI with the Securities and Exchange Commission prior to the Closing Date or otherwise as would not reasonably be expected to cause a Material Adverse Effect, the Borrowers, their Subsidiaries and their respective directors, officers, employees, and agents of the Borrowers and its Subsidiaries, have taken no action in the past five years, directly or indirectly, that would
result in violation of the Anti-Corruption Laws. (d)No part of the proceeds of the loans will be used by the Borrowers or any of its Subsidiaries in violation of Anti-Corruption Laws. (e)The Borrowers and their Subsidiaries have instituted and will continue to maintain policies and procedures designed to promote compliance with applicable Anti-Corruption Laws to the extent required in each relevant jurisdiction, except (solely with respect to jurisdictions located outside of the United States) to the extent such failure would not reasonably be expected to result in a Material Adverse Effect. 6.24 Senior
Indebtedness. The Obligations under the Facilities constitute “senior debt”, “senior indebtedness”, “guarantor senior debt”, “senior secured financing” and “designated senior indebtedness” (or any comparable term) under the documentation for all Indebtedness that is subordinated in right of payment to the Obligations (if applicable).
ARTICLE VII
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder, other than contingent indemnification obligations for which no claim has been asserted, which is accrued and payable shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, each Loan Party shall, and shall (except in the case of the covenants set forth in Sections 7.01,
7.02, 7.03 and 7.11) cause each Restricted Subsidiary to:
7.01 Financial Statements. Deliver to the Administrative Agent, who will deliver the same to each Lender, in form and detail reasonably satisfactory to the Administrative Agent:
(a)within 90 days after the end of each fiscal year of ESI, a consolidated balance sheet of ESI and its Restricted Subsidiaries as at the end of such fiscal year, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous
fiscal year, all in reasonable detail and prepared in accordance with GAAP, audited and accompanied by (i) a report and opinion of an independent certified public accountant of nationally recognized standing reasonably acceptable to the Administrative Agent, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception (other than any such exception or explanatory paragraph that is expressly solely with respect to, or expressly resulting solely from, an upcoming maturity date under the Facilities that is scheduled to occur within one year from the time such report and opinion are delivered) or any qualification or exception as to the scope of such audit that would be material to ESI and its Restricted Subsidiaries, taken as a whole and (ii) to the extent
filed with the SEC, a copy of the attestation report filed with the SEC of such independent certified public accountant of nationally recognized standing as to ESI’s internal controls pursuant to Section 404 of Sarbanes-Oxley;
(b)within 60 days after the end of each of the first three fiscal quarters of each fiscal year of ESI, a consolidated balance sheet of ESI and its Restricted Subsidiaries as at the end of such fiscal quarter, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal quarter and for the portion of ESI’s fiscal year then ended, setting forth in each
case in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, all in reasonable detail and certified by a Responsible Officer of ESI as fairly presenting the financial condition, results of operations, shareholders’ equity and cash flows of ESI and its Restricted Subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes; and (c)no later than 90 days after the end of each fiscal year of ESI, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such following fiscal year and setting forth the assumptions used for purposes of
preparing such budget) in form that is either (i) consistent with past practice of ESI or (ii) reasonably satisfactory to the Administrative Agent and, promptly when available, any material revisions to such budget.
7.02 Certificates; Other Information. Deliver to the Administrative Agent, in form and detail satisfactory to the Administrative Agent:
(a)concurrently with the delivery of the financial statements referred to in Sections 7.01(a) and (b), a duly completed Compliance Certificate signed by a Responsible Officer of ESI, which shall, among other things, (i) specify whether a Triggering Event has occurred during the preceding fiscal quarter, (ii) in the case of a certificate delivered with the financial statements required
by Section 7.01(a) above, beginning with the fiscal year ending December 31, 2019, set forth ESI’s calculation of Excess Cash Flow and in reasonable detail the Available Amount as at the end of the fiscal year to which such financial statements relates and (iii) a list of each Subsidiary of a Borrower that identifies such Subsidiary as a Restricted Subsidiary or an Unrestricted Subsidiary as of the date of delivery of such Compliance Certificate or a confirmation that there is no change in such information since the later of the Closing Date and the date of the last such list; (b)promptly upon receipt thereof, copies of all notices, requests and other documents received by a Borrower or any Restricted Subsidiary under or pursuant to any indenture,
loan or credit or similar agreement, in each case, that is material, regarding or related to any breach or default by any party thereto or any other event that could have a Material Adverse Effect and copies of any amendment, modification or waiver of any provision of any instrument, indenture, loan or credit or similar agreement and, from time to time upon request by the Administrative Agent, such information and reports regarding such instruments, indentures and loan and credit and similar agreements as the Administrative Agent may reasonably request; (c)promptly after the assertion or occurrence thereof, written notice of any Environmental Claim against, of any Environmental Liability incurred by, or of any non-compliance
by, any Borrower or any Restricted Subsidiary with any Environmental Law or Environmental Permit that could reasonably be expected to have a Material Adverse Effect;
(d)promptly, such additional information regarding the business, financial or corporate affairs of any Borrower or any Restricted Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request, including with respect to applicable “know-your-customer” and anti-money laundering rules and regulations (including the Act); and
(e)simultaneously with the delivery of each set of consolidated financial statements
referred to in Sections 7.01(a) and 7.01(b) above, the related consolidating financial statements reflecting the adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements if material. The Borrowers hereby acknowledge that (a) the Administrative Agent will make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of any Borrower hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders
(i.e., Lenders that do not wish to receive material non-public information with respect to the Borrowers or their Subsidiaries or their respective securities) (each, a “Public Lender”). The Borrowers hereby agree that (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Borrowers or their Subsidiaries or their
respective securities for purposes of United States federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 11.07); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Investor;” and (z) the Administrative Agent shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not marked as “Public Investor.” Notwithstanding the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC”, unless the Borrowers notify the Administrative Agent promptly that any such document contains material non-public information:
(1) the Loan Documents, (2) notification of changes in the terms of the Facilities and (3) all information delivered pursuant to Sections 7.01(a) and (b) and Section 7.02(a). Each document required to be delivered pursuant to Section 7.01(a) or (b) shall be deemed to have been delivered on the date on which ESI posts such document on the SEC’s website at www.sec.gov or on the ESI website (each of the foregoing, an “Informational Website”)
so long as ESI notifies the Administrative Agent immediately upon posting to such Informational Website. 7.03 Notices. Promptly notify the Administrative Agent and each Lender:
(a)within 10 days after any Responsible Officer of ESI obtains knowledge of the occurrence of any Default;
(b)within 10 days after any Responsible Officer of ESI obtains knowledge of any matter that has resulted or could reasonably be expected to result in a Material Adverse Effect;
(c)of
the occurrence of or the reasonably expected occurrence of any ERISA Event that could reasonably be expected to result in liability to any Loan Party in excess of the Threshold Amount and provide a written notice specifying the nature thereof, what action the Loan Party or its ERISA Affiliates has taken, is taking or proposes to take with respect thereof and, when known, any action taken or threatened by the IRS, the U.S. Department of Labor or the PBGC with respect thereto and with reasonable promptness, copies of the following to the extent requested by the Administrative Agent: (i) each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) filed by Loan Parties or any of their respective ERISA Affiliates with the IRS with respect to each Pension Plan; and (ii) copies of such other documents or governmental reports or filings relating to any Plan as the Administrative Agent shall reasonably request;
(d)of
all notices received by the Loan Parties and any of their respective ERISA Affiliates from a Multiemployer Plan concerning an ERISA Event that could reasonably be anticipated to have a Material Adverse Effect and provide copies of such notices; and
(e)the filing or commencement of, or any written threat or written notice of intention of any Person to file or commence, any action, suit or proceeding, whether at law or in equity or by or before any arbitrator or Governmental Authority, against ESI or any of its Restricted Subsidiaries that could reasonably be expected to result in a Material Adverse Effect. Each notice pursuant to this Section 7.03 shall be accompanied by a statement of a Responsible Officer of ESI setting forth
details of the occurrence referred to therein and stating what action the Borrowers have taken and proposes to take with respect thereto. Each notice pursuant to Section 7.03(a) shall describe with particularity any and all provisions of this Agreement and any other Loan Document that have been breached.
7.04 Payment of Obligations. Pay and discharge as the same shall become due and payable, all its obligations and liabilities, including all material tax liabilities, assessments and governmental charges or levies upon it or its properties or assets, unless the same are being contested in good faith by appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP are being maintained by the Borrowers or any Restricted Subsidiary unless such liabilities, individually or in the aggregate, could not reasonably
be expected to have a Material Adverse Effect.
7.05 Preservation of Existence, Etc. (a) Preserve, renew and maintain in full force and effect its legal existence and good standing under the Laws of the jurisdiction of its organization except in a transaction permitted by Section 8.03 or 8.04; provided, however, that the Borrowers and the Restricted Subsidiaries may cause to occur or consummate any merger or consolidation permitted under Section 8.03 or dissolution permitted under Section 8.04(e); (b) take all reasonable
action to maintain all rights, privileges, permits, licenses and franchises necessary in the normal conduct of its business, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; and (c) preserve or renew all of its registered patents, trademarks, trade names and service marks, the non-preservation of which could reasonably be expected to have a Material Adverse Effect. 7.06 Maintenance of Properties. Maintain, preserve and protect all of its material properties and equipment useful and necessary in the operation of its business in good working order and condition, ordinary wear and tear excepted, unless such failure to maintain, preserve and protect such properties and equipment could not reasonably be expected to have a Material Adverse Effect.
7.07 Maintenance
of Insurance. (a) Maintain with financially sound and reputable insurance companies not Affiliates of any Loan Party, insurance with respect to its properties and business against loss or damage of the kinds customarily insured against by Persons engaged in the same or similar business, of such types and in such amounts as are customarily carried under similar circumstances by such other Persons, provided that insurance coverage in respect of terrorism shall not be required. Notwithstanding the foregoing, the Borrowers and the Restricted Subsidiaries may self-insure with respect to such risks with respect to which companies of established reputation engaged in the same general line of business in the same general area usually self-insure.
(b)
With respect to each Mortgaged Property, obtain flood insurance in such total amount reasonably satisfactory to the Administrative Agent and as otherwise sufficient to comply in all material respects with all applicable rules and regulations promulgated pursuant to the Flood Laws, if at any time the area in which any improvements located on any Mortgaged Property is designated a “flood hazard area” in any Flood Insurance Rate Map published by the Federal Emergency Management Agency (or any successor agency), and otherwise comply with the National Flood Insurance Program as set forth in the Flood Disaster Protection Act of 1973, as amended from time to time.
7.08 Compliance with Laws. Comply in all material respects with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its business or property, except in such instances in which
(a) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted; or (b) the failure to comply therewith could not reasonably be expected to have a Material Adverse Effect.
7.09 Books and Records. Maintain proper books of record and account, in which full, true and correct entries, in all material respects, in conformity with GAAP consistently applied shall be made of all financial transactions and matters involving the assets and business of ESI or any of its Restricted Subsidiaries, as the case may be. 7.10 Inspection Rights. Permit representatives and independent contractors of the Administrative Agent and, upon the occurrence
and during the continuance of an Event of Default, each Lender to visit and inspect any of its properties, to examine its corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to discuss its affairs, finances and accounts with its officers, employees and independent public accountants, all at such reasonable times during normal business hours and as often as may be reasonably desired, upon reasonable advance notice to ESI.
7.11 Use of Proceeds. Use the proceeds of the Tranche B-1 Term Loans incurred on the Amendment No. 1 Funding Date solely to refinance in full the Initial Term Loans outstanding on such date. The Borrowers will use the proceeds of the Revolving Credit Loans made (i) on the Closing Date, to pay fees and expenses related to the Transactions (with any remaining amounts borrowed to be used for general corporate purposes) in
an aggregate amount not to exceed $50,000,000 and (ii) thereafter, for general corporate purposes. The Borrowers shall be entitled to request the issuance of Letters of Credit to support payment obligations incurred in the ordinary course of business by the Borrowers or the Restricted Subsidiaries. 7.12 Additional Guarantees and Collateral. (a) Upon the formation or acquisition of any new direct or indirect Restricted Subsidiary (other than an Excluded Subsidiary; provided that (i) any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Restricted Subsidiary and (ii) any Excluded Subsidiary ceasing to be an Excluded Subsidiary but remaining a Restricted Subsidiary shall be deemed to constitute the acquisition of a Restricted
Subsidiary for all purposes of this Section 7.12) by any Loan Party, the Borrowers shall, in each case, at the Borrowers’ sole expense:
(i) within 60 days after such formation or acquisition (or such longer period as may be agreed to by the Administrative Agent in its sole discretion), cause each such Subsidiary, and cause each direct and indirect parent of such Subsidiary (if it has not already done so), to duly execute and deliver to the Administrative Agent (i) a Subsidiary Joinder Agreement or such other joinder agreement, in each case, in form and substance satisfactory to the Administrative Agent, guaranteeing the Borrowers’ obligations under the Loan Documents, (ii) a joinder to the Pledge
and Security Agreement in form and substance satisfactory to the Administrative Agent, (iii) Uniform Commercial Code financing statements in the state of incorporation or formation of each such Subsidiary in order to, with respect to such Subsidiary, perfect and protect the first priority liens and security interests created under the Pledge and Security Agreement, certificates, if any, representing the Pledged Collateral referred to in the Pledge and Security Agreement accompanied by undated stock powers, endorsements and/or transfer powers, as applicable, executed in blank and evidence that all other actions that the Administrative Agent may deem reasonably necessary in order to perfect and protect the liens and security interests created under the Pledge and Security Agreement and the Intellectual Property Security Agreements have been taken, subject to the terms thereof, (iv) the results of a recent Lien and judgment search in each relevant jurisdiction with respect
to such Subsidiary, which such search shall reveal no Liens on any of the assets of such Subsidiary except for Liens expressly permitted by Section 8.01 or other Liens reasonably acceptable to the Collateral Agent and except for Liens to be discharged on or prior to such Subsidiary’s execution of the documents referred to in this clause (i), pursuant to documentation reasonably satisfactory to the Collateral Agent, (v) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of such Subsidiary as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Subsidiary is a party or is to be a party and (vi) such documents and
certifications as the Administrative Agent may reasonably require to evidence that such Subsidiary is duly organized or formed, and that such Subsidiary is validly existing and in good standing in its state of incorporation or formation (or such other security documents in form and substance satisfactory to the Administrative Agent);
(ii) within 60 days after such formation or acquisition (or such longer period as may be agreed to by the Administrative Agent in its sole discretion), deliver to the Administrative Agent, upon the request of the Administrative Agent in its sole discretion, a signed copy of a favorable opinion with respect to such Subsidiary, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent, and
(iii) at any time and from time to time, promptly execute and deliver any
further instruments and documents and take all such other action as the Collateral Agent may deem reasonably necessary in obtaining the full benefits of, or in perfecting and preserving the Liens of, the Collateral Documents;
provided, that each Loan Party shall cause (A) 100% (or such lesser amount held by the Loan Party) of the issued and outstanding Equity Interests of each Domestic Subsidiary (other than any Excluded Domestic Subsidiary) and (B) 65% (or such lesser amount held by the Loan Party) of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% (or such lesser amount held by the Loan Party) of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each First-Tier Foreign Subsidiary and Excluded Domestic Subsidiary to be subject at all times to a perfected
Lien in favor of the Collateral Agent for the benefit of the applicable Secured Parties pursuant to the terms and conditions of the Collateral Documents and Customary Intercreditor Agreement, together with any filings and deliveries reasonably necessary in connection therewith to perfect the security interests therein, all in form and substance reasonably satisfactory to the Collateral Agent;
(b) Within 90 days (or such longer period as may be agreed to by the Administrative Agent in its sole discretion) of the acquisition of either Material Real Property or a Restricted Subsidiary which holds Material Real Property and is contemplated to become a Loan Party hereunder, promptly grant to the Collateral Agent a security interest in and Mortgage on each Material Real Property owned in
fee
(or such other similar ownership interest as recognized by local law) by such Loan Party as is acquired by such Loan Party after the Closing Date, as additional security for the Obligations, in each case, unless the Administrative Agent determines in its reasonable discretion that, with respect to any such property that is located in an area that has been identified by the Secretary of Housing and Urban Development as an area having special flood hazards within the meaning of the National Flood Insurance Act of 1968, the costs of creating or perfecting such security interests are excessive in relation to the benefits accruing to the Lenders. Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Permitted Liens, Liens pursuant to Section 8.01(g) or
other Liens reasonably acceptable to the Collateral Agent. Such Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. With respect to each Mortgage, except as may be agreed to by Collateral Agent, in its reasonable discretion, the applicable Subsidiary shall deliver:
(i) a mortgagee’s policy of title insurance, if available, (or marked up unconditional signed title insurance commitment or pro forma for such insurance having the effect of a policy of title insurance) insuring the Lien of such Mortgage as a valid first mortgage Lien on the Mortgaged Property and fixtures described therein in the amount equal to 110% of the
fair market value of such Mortgaged Property and fixtures (but not to exceed 100% of the fair market value of such Mortgaged Property in jurisdictions that impose mortgage or intangibles recording tax), which fair market value is delivered to the Collateral Agent in writing by a Responsible Officer of the applicable Loan Party, which policy (or marked up unconditional signed title insurance commitment or pro forma for such insurance having the effect of a policy of title insurance) (each, a “Title Policy”) shall (A) be issued by the Title Company, (B) to the extent necessary and available, include such reinsurance arrangements (with provisions for direct access, if necessary) as shall be reasonably acceptable to the Collateral Agent, (C) name the Collateral Agent and each of the other Secured Parties as insureds thereunder, (D) be in the form of ALTA Loan Policy - 1970 (Amended 10/17/70 and 10/17/84) (or equivalent policies)
where available, (E) contain a “tie-in” or “cluster” endorsement, if available under applicable law (i.e., policies which insure against losses regardless of location or allocated value of the insured property up to a stated maximum coverage amount), (F) have been supplemented by such endorsements and affirmative coverage as shall be reasonably requested by the Collateral Agent (including, but not limited to, endorsements on matters relating to usury, first loss, last dollar, zoning (unless the cost of obtaining such zoning endorsement is prohibitive or Collateral Agent receives a zoning letter reasonably acceptable to Collateral Agent), contiguity, revolving credit/future advance, doing business, non-imputation, public road access, survey, variable rate, environmental lien, subdivision, mortgage recording tax, separate tax lot and so-called comprehensive coverage over covenants and restrictions), and (G) contain
no exceptions to title other than Permitted Liens and other exceptions reasonably acceptable to the Collateral Agent;
(ii) Surveys with respect to each Mortgaged Property, other than as agreed by the Administrative Agent or the Title Company;
(iii) an opinion of counsel for the Loan Parties (which counsel shall be reasonably satisfactory to Collateral Agent) in each state in which a Mortgaged Property is located with respect to the enforceability of the form(s) of Mortgages to be recorded in such state and such other matters as Collateral Agent may reasonably request, in each case in form and substance reasonably satisfactory to Collateral Agent; and
(iv) a
completed standard “life of loan” flood hazard determination form for each Mortgaged Property, and if the property is located in an area designated by the U.S. Federal Emergency Management Agency (or any successor agency) as having special flood or mud slide hazards, (A) a notification to the Borrowers (“Borrower Notice”) and (if applicable) notification to the Borrowers that flood insurance coverage under the National Flood Insurance Program (“NFIP”) created by the U.S. Congress pursuant to the National Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973, the National Flood Insurance Reform Act of 1994 and the Flood Insurance Reform Act of 2004 (collectively, the “Flood Laws”) is not available because the applicable community does not participate in the NFIP, (B) documentation evidencing the Borrowers’ receipt
of the Borrower Notice (e.g., countersigned Borrower Notice, return receipt of certified U.S. Mail, or overnight delivery), and (C) if Borrower Notice is required to be given and flood insurance is available in the community in which the property is located, a copy of one of the following: the flood insurance policy, the Borrowers’ application for a flood insurance policy plus proof of premium payment, a declaration page confirming that flood insurance has been issued, or such other evidence of flood insurance reasonably satisfactory to the Collateral Agent and in compliance with the Flood Laws.
Notwithstanding anything in this Agreement or any Loan Document to the contrary, the Loan Parties shall not be required to (i) execute and deliver to the Collateral Agent Mortgages with respect to (A) any fee owned real property other than a Material Real Property; (B) secure any portion
of the Revolving Credit Facility with a mortgage on Material Real Property located in New York State; and (C) any leasehold rights or interests in real property, or (ii) pledge or grant security interests in any of their property or assets if, in the reasonable judgment of Collateral Agent, the costs of creating or perfecting such pledges or security interests in such property or assets are excessive in relation to the benefits to the Secured Parties.
(c) With respect to any Collateral acquired after the Closing Date or, in the case of inventory or equipment, any material Collateral moved after the Closing Date by any Loan Party (other than any Collateral described in Section 7.12(a) or Section 7.12(b)) as to which the Collateral Agent, for the benefit of the Secured Parties, does not have a first priority perfected security interest,
promptly (and, in any event, within 10 Business Days following the date of such acquisition (or such longer period as may be agreed to by the Administrative Agent in its sole discretion)) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments to the Pledge and Security Agreement or such other Collateral Documents as the Collateral Agent deems necessary or advisable to grant to the Collateral Agent, for the benefit of the Secured Parties, a security interest in such Collateral and (ii) take all actions necessary or advisable to grant to, or continue on behalf of, the Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest in such Collateral, including the filing of UCC financing statements in such jurisdictions as may be required by the Pledge and Security Agreement or by law or as may be requested by the Administrative Agent or the Collateral Agent.
7.13 Compliance
with Environmental Laws. (a) Comply, and cause all lessees and other Persons operating or occupying its properties to comply, in all material respects, with all applicable Environmental Laws and Environmental Permits; (b) obtain and renew all Environmental Permits necessary for its operations and properties; (c) take any and all actions necessary to (i) cure any violation of applicable Environmental Laws and (ii) cure and have dismissed with prejudice any Environmental Claim against Company or any of its Restricted Subsidiaries and discharge any obligations it may have to any Person thereunder; and (d) if required by Environmental Law, conduct any investigation, study, sampling and testing, and undertake any cleanup, removal, remedial or other action necessary to remove and clean up all Hazardous Materials from any of its current or former properties, in
accordance with the requirements of all Environmental Laws; except in each case of clauses (a), (b), (c) and/or (d) above,
where such non-compliance, failure to obtain Environmental Permits, Environmental Claims or requirements of Environmental Law does not or could not be reasonably expected to have a Material Adverse Effect; provided, however, that no Loan Party nor any of its Restricted Subsidiaries shall be required to undertake any such compliance, to obtain any such Environmental Permits, to cure any such Environmental Claims or to perform any such cleanup,
removal, remedial or other action to the extent that its obligation to do so is being contested in good faith and by proper proceedings and appropriate financial reserves are being maintained with respect to such circumstances. 7.14 Further Assurances. (a) Promptly upon request by the Administrative Agent or the Collateral Agent, (i) correct any material defect or error that may be discovered in any Loan Document or in the execution, acknowledgment, filing or recordation thereof, and (ii) do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all such further acts, deeds, certificates, assurances and other instruments as the Administrative Agent or Collateral Agent may reasonably require from time to time in order to implement the provisions of the Loan Documents.
(b) Each Loan Party shall
(and ESI shall procure that each member of the Restricted Group shall) take all such action as is available to it (including making all filings and registrations) as may be necessary for the purpose of creation, perfection, protection or maintenance of any Lien conferred or intended to be conferred on the Collateral Agent or the Secured Parties by or pursuant to the Loan Documents.
7.15 Collateral and Guarantee Limitations.
(a)Notwithstanding anything to the contrary in Article IV, Sections 7.12 and 7.14, the requirements of such Sections shall not apply to any assets or new Subsidiary created or acquired after the Closing Date, as applicable, if, in the judgment of the Administrative
Agent, the costs of creating or perfecting such pledges or security interests in such assets (including any mortgage, stamp or other similar tax) are (taking into account the present and future direct and indirect cost and/or burden to the Restricted Group) excessive in relation to the benefits accruing to the Lenders.
(b)Notwithstanding anything to the contrary in Sections 7.12 and 7.14 or any Loan Document, no Excluded Subsidiary or Foreign Subsidiary shall be deemed or be obligated to guarantee the Obligations of a US Borrower or any Subsidiary Guarantor that is a Domestic Subsidiary or provide collateral therefor, and no pledge shall be required with respect to more than 65% of the voting Equity Interests and 100% of the nonvoting Equity Interests of any such person as provided in Section
7.12(a) above to a US Borrower to secure the Obligations of a US Borrower or any Subsidiary Guarantor that is a Domestic Subsidiary.
(c)Notwithstanding anything to the contrary in Sections 7.12 and 7.14 or any Loan Document, no Loan Party shall be deemed to be required under any Loan Document to pledge or otherwise provide as collateral or security the Equity Interests of an Unrestricted Subsidiary to secure the Obligations of a Loan Party.
(d)Sections 7.12 and 7.14 or any Loan Document need not be satisfied with respect to any Excluded Assets. In addition, the Collateral and Guarantee requirement and the provisions of the Loan Documents shall not require
any account control agreements, lockbox arrangements or the taking of any other actions to perfect by control any security interest in any deposit accounts, securities accounts or commodities accounts.
Notwithstanding anything to the contrary in this Agreement, the Pledge and Security Agreement or any other Loan Document, (i) the Administrative Agent may grant extensions of time for or waivers of the requirements of creating or perfecting security interests in or the obtaining of title insurance, legal opinions, appraisals, flood insurance and surveys with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date)
where it reasonably determines, in consultation with ESI, that perfection or obtaining of such items cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the other Loan Documents, (ii) Liens required to be granted from time to time pursuant to this Agreement and the Pledge and Security Agreement shall be subject to exceptions and limitations set forth in the Pledge and Security Agreement and (iii) the Administrative Agent and ESI may make such modifications to the Mortgages, and execute and/or consent to such easements, covenants, rights of way or similar instruments (and Administrative Agent may agree to subordinate the lien of any Mortgage to any such easement, covenant, right of way or similar instrument of record or may agree to recognize any tenant pursuant to an agreement in a form and substance reasonably acceptable to the Administrative Agent), as are reasonable or necessary and
otherwise permitted by this Agreement and the other Loan Documents.
7.16 Credit Rating. The Borrowers at all times use commercially reasonable efforts to cause to be maintained (a) a corporate rating for the Borrowers from S&P, (b) a corporate family rating for the Borrowers from Moody’s and (c) a rating for each of the Facilities from each of S&P and Moody’s.
7.17 Post-Closing Matters. ESI shall, and shall cause each of its Restricted Subsidiaries to, take all necessary actions to satisfy the requirements set forth on Schedule 7.17 within such periods as specified on such schedule or such longer period as agreed by the Administrative Agent in its
sole discretion. 7.18 OFAC and Anti-Corruption Laws. The Borrowers agrees that so long as any amount payable by any Borrower hereunder remains unpaid or the Commitments have not been terminated, the Borrowers will, and will cause each the Restricted Subsidiaries to, unless the Required Lenders shall otherwise consent in writing: (a)use the proceeds of the Loans in accordance with Section 7.11, but in no event for any purpose that would be contrary to Section 6.23; and
(b)furnish to the Lenders such other information respecting the condition, operations or business, financial
or otherwise, of the Borrowers or any of Subsidiary as any Lender, through the Administrative Agent, may from time to time reasonably request (including any information that any Lender reasonably requests in order to comply with its obligations under any “know-your-customer” or anti-money laundering laws or regulations, including the Patriot Act and the Beneficial Ownership Regulation).
ARTICLE VIII
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder, other than contingent indemnification obligations for which no claim has been asserted, which is accrued and payable shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, no Loan Party shall, nor shall it permit any Restricted Subsidiary to, directly or indirectly:
8.01 Liens.
Create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues, whether now owned or hereafter acquired, or sign or file or suffer to exist under the Uniform Commercial Code of any jurisdiction a financing statement that names the Loan Party or any of its Restricted Subsidiaries as debtor, or sign or suffer to exist any security agreement authorizing any secured party thereunder to file such financing statement, or assign any accounts or other right to receive income, other than the following: (a)Liens pursuant to (i) any Loan Document and (ii) any document governing any Credit Agreement Refinancing Indebtedness; provided that in the case of this clause (ii), (a) such Liens do not extend to
any assets that are not Collateral and (b) the applicable parties to such Credit Agreement Refinancing Indebtedness (or a representative thereof on behalf of such holders) shall have entered into with the Administrative Agent and/or the Collateral Agent a Customary Intercreditor Agreement, which agreement shall provide either that the Liens on the Collateral securing such Credit Agreement Refinancing Indebtedness shall have either (x) the same priority ranking as the Liens on the Collateral securing the Obligations (but without regard to control of remedies) or (y) shall rank junior to the Liens on the Collateral securing the Obligations; without any further consent of the Lenders, the Administrative Agent and the Collateral Agent shall be authorized to negotiate, execute and deliver on behalf of the Secured Parties any Customary Intercreditor Agreement or any amendment (or amendment and restatement) to the Collateral Documents or a Customary Intercreditor Agreement
to the extent necessary to effect the provisions contemplated by this Section 8.01(a)(ii);
(b)Permitted Liens;
(c)Liens existing on the Closing Date and listed on Schedule 8.01(c) and any replacements, modifications, renewals or extensions thereof, provided that the property covered thereby is not increased in any material respect and the amount not increased or the direct or any contingent obligor changed and any replacement, modification, renewal or extension of the obligations secured or benefited thereby is permitted by Section 8.02(c);
(d)Liens securing Factoring Agreements and Receivables
Facilities incurred pursuant to Section 8.02 hereof in an aggregate amount up to the greater of (x) $250,000,000 and (y) 55% of Consolidated EBITDA at any time outstanding;
(e)Liens securing Indebtedness permitted by Section 8.02(m);
(f)Liens securing Indebtedness or any other obligations in an aggregate amount up to the greater of (i) $185,000,000 and (ii) 40% of Consolidated EBITDA as of the last day of the last Test Period for which financial statements have been delivered pursuant to Section 7.01 at any time outstanding;
(g)(A)
Liens securing Indebtedness that is permitted by Section 8.02(g); provided that (i) such security interests are incurred, and the Indebtedness secured thereby is created, within 120 days after such acquisition (or construction), (ii) the Indebtedness secured thereby, at the time of incurrence thereof, does not exceed the lesser of the cost or the fair market value of such real property, improvements or equipment at the time of such acquisition (or construction) and (iii) such security interests do not apply to any other property or assets of ESI or any of its Restricted Subsidiaries (other than the proceeds of the property or assets subject to such security interests) and (B) any Lien securing the renewal, extension, refinancing or refunding of any such Indebtedness without a change in
the assets subject to such Lien and to the extent that such renewal, refinancing or refunding is permitted by Section 8.02(g) and (C) Liens arising out of Permitted Sale Leaseback Transactions permitted under Section 8.13, so long as such Liens attach only to the property sold and being leased in such transaction and any accessions and additions thereto or proceeds and products thereof and related property; (h)Liens granted to secure Indebtedness permitted by Section 8.02 (the “Second Lien Indebtedness”) which Liens are junior to the Liens securing the Obligations; provided that (i) on the date such Second Lien Indebtedness is incurred, the Senior Secured Net Leverage Ratio on a consolidated basis for ESI and its Restricted
Subsidiaries’ most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such Second Lien Indebtedness is incurred shall not exceed 5.00 to 1.00, determined on a Pro Forma Basis (including a pro forma application of the net proceeds therefrom), as if the Second Lien Indebtedness had been incurred at the beginning of such four quarter period and (ii) the agent, trustee or similar person party to such Second Lien Indebtedness shall enter into a Customary Intercreditor Agreement in form and substance reasonably satisfactory to the Administrative Agent; (i)Liens securing Indebtedness permitted by Section 8.02(p), so long as the agent, trustee or similar Person party to such Indebtedness shall
enter into a Customary Intercreditor Agreement in form and substance reasonably satisfactory to the Administrative Agent;
(j)Liens existing on assets acquired by ESI or any of its Subsidiaries pursuant to any Permitted Acquisition; provided that (i) such Liens secure Indebtedness permitted pursuant to Section 8.02 and (ii) such Liens attach at all times only to the same assets to which such Liens attached (and after-acquired property that is affixed or incorporated into the property covered by such Lien), and secure only the same Indebtedness or obligations that such Liens secured immediately prior to such Permitted Acquisition (or any Permitted Refinancing Indebtedness in respect thereof); (k)Liens
under any escrow arrangement holding the proceeds of any Indebtedness incurred in accordance with Section 8.02 to finance a Permitted Acquisition or other transaction; provided, that such Liens shall terminate and otherwise be discharged upon the consummation of the applicable Permitted Acquisition or other transaction;
(l)Liens arising from UCC financing statements filings regarding operating leases or consignment of goods entered into by ESI and its Restricted Subsidiaries in the ordinary course of business; (m)in the case of any Non-Wholly Owned Subsidiary or joint venture, any put and call arrangements or restrictions on disposition related to its Equity
Interests set forth in its organizational documents or any related joint venture or similar agreement; and
(n)Liens securing Permitted Swap Obligations in an aggregate amount up to $25,000,000.
For purposes of determining compliance with this Section 8.01, (A) a Lien securing an item of Indebtedness need not be permitted solely by reference to one category of permitted Liens (or any portion thereof) described in Sections 8.01(a) through (n) but may be permitted in part under any combination thereof and (B) in the event that a Lien securing an item of Indebtedness (or any portion thereof) meets the criteria of one or more of the categories of permitted Liens (or any portion thereof) described in Sections 8.01(a) through (l), the Borrowers may, in their sole discretion, classify or reclassify, or later divide, classify or reclassify (as if incurred at such later
time), such Lien securing such item of Indebtedness (or any portion thereof) in any manner that complies with this Section 8.01 and will be
entitled to only include the amount and type of such Lien or such item of Indebtedness secured by such Lien (or any portion thereof) in one of the above clauses and such Lien securing such item of Indebtedness (or portion thereof) will be treated as being incurred or existing pursuant to only such clause or clauses (or any portion thereof) without giving pro forma effect to such item (or portion thereof) when calculating the amount of Liens or Indebtedness that may be incurred pursuant to any other clause. In addition, with respect to any Lien securing Indebtedness that was permitted to secure such Indebtedness
at the time of the incurrence of such Indebtedness, such Lien shall also be permitted to secure any increased amount of such Indebtedness.
8.02 Indebtedness. Directly or indirectly, create, incur, assume or suffer to exist any Indebtedness, in the case of the Borrowers, issue any shares of Disqualified Stock or, in the case of any Restricted Subsidiary, issue any shares of Disqualified Stock or preferred stock, except:
(a)Indebtedness under this Agreement and the other Loan Documents and Credit Agreement Refinancing Indebtedness incurred to refinance (in whole or in part) such Indebtedness;
(b)[reserved];
(c)Indebtedness (including, without limitation, credit lines) outstanding on the
Closing Date and listed on Schedule 8.02 and any Permitted Refinancing Indebtedness incurred to refinance such Indebtedness;
(d)Indebtedness consisting of Guarantees of the Borrowers or any Restricted Subsidiaries with respect to (i) Indebtedness of any Borrower or any of its Restricted Subsidiary to the extent that such Indebtedness is permitted to be incurred pursuant to this Section 8.02 (other than this Section 8.02(d)) and (ii) Indebtedness of any Person that is not a Restricted Subsidiary, provided that the aggregate principal amount of such Indebtedness shall not at any time exceed $50,000,000 (without giving effect to any write-offs
or write-downs of such Indebtedness); (e)intercompany loans (i) between the Loan Parties, (ii) from an Immaterial Subsidiary to a Loan Party, in each case, so long as the payee with respect to such intercompany loans is Solvent, both before and after giving effect thereto, (iii) from any Loan Party to an Immaterial Subsidiary to the extent such loans are permitted under clause (b) of the definition of “Permitted Investments” and subordinated to the Obligations on terms reasonably satisfactory to the Administrative Agent, (iv) between Restricted Subsidiaries that are not Loan Parties, (v) from a Restricted Subsidiary that is not a Loan Party to a Loan Party to the extent such loans are permitted under clause (b) of
the definition of “Permitted Investments”) and (vi) from a Loan Party to a Restricted Subsidiary that is not a Loan Party to the extent such loans are permitted under clause (b) of the definition of “Permitted Investments”. (f)Indebtedness consisting of Permitted Swap Obligations;
(g)(i) capital lease obligations, mortgage financings, industrial revenue bonds or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of design, development, construction or improvement of property, plant or equipment used in the business of
any Borrower or any of its Restricted Subsidiaries, in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this Section 8.02(g), not to exceed the greater of (x) $140,000,000 and (y) 30% of Consolidated EBITDA as of the last day of the last Test Period for which financial statements have been delivered pursuant to Section 7.01 at any time outstanding and (ii) any Indebtedness incurred by ESI or a Restricted Subsidiary arising from any Permitted Sale Leaseback Transaction that is permitted under Section 8.13 and Permitted Refinancing Indebtedness in respect thereof; (h)Acquired
Indebtedness in an aggregate principal amount not to exceed the greater of (x) $180,000,000 and (y) 40% of Consolidated EBITDA as of the last day of the last Test Period for which financial statements have been delivered pursuant to Section 7.01 at any time outstanding (and any Permitted Refinancing Indebtedness in respect thereof);
(i)Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, provided, however, that such Indebtedness is extinguished within five Business Days of its incurrence;
(j)Indebtedness consisting of the financing of insurance premiums in the ordinary
course of business in an amount not to exceed $20,000,000 at any time outstanding;
(k)Indebtedness of Foreign Subsidiaries in an aggregate principal amount not to exceed the greater of (x) $225,000,000 and (y) 50% of Consolidated EBITDA as of the last day of the last Test Period for which financial statements have been delivered pursuant to Section 7.01 at any time outstanding; (l)the incurrence of additional Indebtedness (including Acquired Indebtedness) by (A) any Borrower or any of its Restricted Subsidiaries or (B) Persons that are acquired by or merged or amalgamated with or into any Borrower or any of its
Restricted Subsidiaries in accordance with the terms of this Agreement and in each case, incurred to finance a Permitted Acquisition or any other acquisition of any Acquired Entity by any Borrower or any Wholly-Owned Restricted Subsidiary; provided, in each case, that, at the time such additional Indebtedness is incurred, the Total Net Leverage Ratio on a consolidated basis for the Borrowers and their Restricted Subsidiaries’ most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred shall not exceed 5.00 to 1.00, in each case, determined on a Pro Forma Basis (including a pro forma application of the net proceeds therefrom),
as if the additional Indebtedness had been incurred at the beginning of such four-quarter period; provided that, solely with respect to the incurrence of additional Indebtedness in the form of customary term loans or high-yield notes (other than Acquired Indebtedness), such additional Indebtedness (1) will have a maturity date that is no earlier than the date that is six months after the Term Loan Maturity Date, (2) does not provide for any required, scheduled or mandatory prepayment on account of principal (including amortization or otherwise, but excluding a customary offer to redeem or repay with asset sale proceeds or following a Change of Control) prior to the Term Loan Maturity Date and (3) has terms (other than with respect to pricing, premiums, optional prepayment or redemption terms and maturity), when taken as a whole, that are not more favorable to the holders thereof than those applicable to the holders of Term
Loans; (m)Indebtedness in an amount not to exceed $25,000,000 outstanding at any one time for the repurchase, redemption, acquisition or retirement of Equity Interests of ESI held in a Plan or otherwise held by employees or independent contractors;
(n)Indebtedness (in addition to the allowances in the other subsections of this Section 8.02) in an aggregate principal amount at any time outstanding not to exceed the greater of (x) $225,000,000 and (y) 50% of Consolidated EBITDA as of the last day of the last Test Period for which financial statements have been delivered pursuant to Section
7.01 at any time outstanding; provided that the Borrowers and the Restricted Subsidiaries shall not be permitted to incur additional Indebtedness under this Section 8.02(n) during the existence of an Event of Default or if an Event of Default would occur after giving effect to the incurrence of such Indebtedness; (o)unsecured Indebtedness issued or incurred by any Borrower or any Restricted Subsidiary; provided that (i) such Indebtedness include a maturity date that is no earlier than the date that is 365 days after the Latest Maturity Date, (ii) such Indebtedness does not provide for any required, scheduled or mandatory prepayment on account of principal
(including amortization or otherwise, but excluding a customary offer to redeem or repay with asset sale proceeds or following a Change of Control) prior to the date that is 365 days after the Latest Maturity Date, (iii) after giving effect to such incurrence and the application of proceeds therefrom, no Default or Event of Default shall have occurred and be continuing or would result therefrom, (iv) at the time such unsecured Indebtedness is incurred or issued, as applicable, the Fixed Charge Coverage Ratio is less than or equal to 2.00 to 1.00 on a Pro Forma Basis (in each case, assuming (a) the Indebtedness being incurred as of such date of determination would be included in the definition of Consolidated Indebtedness, whether or not such Indebtedness would otherwise be included, and (b) any Incremental Revolving Credit Facilities are fully drawn) and (v) the terms and provisions of the documentation governing such Indebtedness are not more restrictive, when taken
as a whole, on the Borrowers and the Restricted Subsidiaries than the terms and provisions of this Agreement; (p)(i) additional Indebtedness (including Acquired Indebtedness) of any Borrower or any Restricted Subsidiary; provided that (A) immediately prior to and after giving effect thereto, no Default or Event of Default shall exist or result therefrom, (B) such additional Indebtedness (1) will not mature prior to the date that is six months after the Term Loan Maturity Date, (2) has no scheduled amortization or payments of principal prior to the Term Loan Maturity Date and (3) has terms (other than with respect to pricing, premiums, optional prepayment or redemption terms and maturity), when taken as a whole, that are not more favorable to the holders thereof than
those applicable to the holders of Term Loans, (C) to the extent such additional Indebtedness consists of term loans secured on a pari passu basis with the Obligations, such additional Indebtedness shall be subject to the MFN Adjustment as if such additional Indebtedness were a New Term Loan Facility and (D) after giving effect to the incurrence or issuance of such additional Indebtedness on the date thereof, either (x) the principal amount of such Indebtedness shall not exceed the greater of (i) $460,000,000 (or a principal amount equal to the Dollar Equivalent of $460,000,000) less the amount of Incremental Facilities and/or Incremental Loans incurred pursuant to Section 2.14(a)(x) and (ii) an unlimited amount if, after giving effect to the incurrence of such Indebtedness, (X) if such Indebtedness is secured on a pari passu basis with the Obligations, the First Lien Net Leverage
Ratio is less than or equal to 3.50 to 1.00 on a Pro Forma Basis, (Y) if such Indebtedness is secured on a junior basis to the Obligations, the Senior Secured Net Leverage Ratio is less than or equal to 5.00 to 1.00 on a Pro Forma Basis and (Z) if such Indebtedness is unsecured, the Fixed Charge Coverage Ratio is less than or equal to 2.00 to 1.00 on a Pro Forma Basis (in each case, assuming (a) the Indebtedness being incurred as of such date of determination would be included in the definition of Consolidated Indebtedness, whether or not such Indebtedness would otherwise be included, and (b) any Incremental Revolving Credit Facilities are fully drawn) or (y) all of the Net Cash Proceeds (or such lesser amount that would permit the remaining Indebtedness to be permitted hereunder) of any such Indebtedness are used on the date of incurrence to permanently prepay and refinance Term Loans on a dollar-for-dollar basis;
(ii) Guarantee
Obligations of any Subsidiary Guarantor in respect of such Indebtedness of the Borrowers under this clause (p); or
(iii) Permitted Refinancing Indebtedness to the extent incurred to refinance such Indebtedness under this clause (p);
(q)Indebtedness arising under any performance or surety bond or obligations in respect of letters of credit related thereto, in each case entered into in the ordinary course of business;
(r)Indebtedness arising under Factoring Agreements and/or in respect of any Receivables Facilities in an aggregate outstanding principal amount not to exceed the greater
of (x) $250,000,000 and (y) 55% of Consolidated EBITDA;
(s)Indebtedness of the Borrowers and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing items; and (t)Contingent liabilities in respect of any indemnification obligation, adjustment of purchase price, earn-out, non-compete, or similar
obligation of the Borrowers or the applicable Loan Party incurred in connection with the consummation of one or more Permitted Acquisitions or Dispositions permitted hereunder or any acquisition or disposition consummated prior to the Closing Date.
Further, for purposes of determining compliance with this Section 8.02, (A) Indebtedness need not be permitted solely by reference to one category of permitted Indebtedness (or any portion thereof) described in this Section 8.02 but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (or any portion thereof) meets the criteria of one or more of the categories of permitted Indebtedness (or any portion thereof) described in this Section 8.02, the Borrowers may, in their sole discretion, classify
or reclassify, or later divide, classify or reclassify (as if incurred at such later time), such item of Indebtedness (or any portion thereof) in any manner that complies with this Section 8.02 and will be entitled to only include the amount and type of such item of Indebtedness (or any portion thereof) in one of the above clauses (or any portion thereof) and such item of Indebtedness (or any portion thereof) shall be treated as having been incurred or existing pursuant to only such clause or clauses (or any portion thereof) without giving pro forma effect to such item (or portion thereof) when calculating the amount of Indebtedness that may be incurred pursuant to any other clause; provided, that all Indebtedness outstanding on the Closing Date under this Agreement shall at all times be deemed to have been incurred pursuant to clause (a) of this Section 8.02. In addition, with
respect to any Indebtedness that was permitted to be incurred hereunder on the date of such incurrence, any Increased Amount of such Indebtedness shall also be permitted hereunder after the date of such incurrence.
Accrual of interest or dividends, the accretion of accreted value, the accretion or amortization of original issue discount, the payment of interest in the form of additional Indebtedness and the payment of dividends in the form of additional Disqualified Stock or preferred stock, as applicable, will in each case not be deemed to be an incurrence of Indebtedness or Disqualified Stock or preferred stock for purposes of this Section 8.02.
For the avoidance of doubt, for the purposes of this Section 8.02, the term “Indebtedness” shall be deemed to include, in the case of the Borrowers,
the issuance of any shares of Disqualified Stock or, in the case of any Restricted Subsidiaries, the issuance of any shares of Disqualified Stock or preferred
stock, in each case, to the extent that any of the foregoing would appear as a liability upon a balance sheet (excluding the footnotes thereto) of such Person prepared in accordance with GAAP.
Notwithstanding anything to the contrary in this Section 8.02, Foreign Subsidiaries may not incur Indebtedness or issue Disqualified
Stock or preferred stock in the aggregate pursuant to Section 8.02(k), (l), (n), (o) or (p) if, after giving pro forma effect to such incurrence or issuance (including pro forma application of the net proceeds therefrom), the aggregate amount thereof incurred or issued pursuant thereto at any one time outstanding shall exceed the greater of $600,000,000 and 7.0% of Consolidated Total Assets of the Foreign Subsidiaries as of such date. Notwithstanding any other provision of this Section 8.02, the maximum amount of Indebtedness that the Borrowers or any Restricted Subsidiary
may incur pursuant to this Section 8.02 shall not be deemed to be exceeded solely as a result of fluctuations in exchange rates or currency values.
8.03 Fundamental Changes. Merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of the assets of the Borrowers and the Restricted Subsidiaries on a consolidated basis, taken as a whole, to any other Person, except that, so long as no Default exists or would result therefrom: (a)Any Borrower or any Restricted Subsidiary may merge with or acquire another Person, through a stock,
asset or any other similar transaction, which is in the business of specialty chemicals or any related business and related equipment (or any business reasonably ancillary or complementary thereto) if (i) such Borrower or such Restricted Subsidiary is the surviving entity, (ii) such acquisition is friendly and is done with the recommendation of the acquiree’s board of directors or similar governing body and (iii) such acquisition constitutes a Permitted Acquisition;
(b)any Restricted Subsidiary may merge with a Loan Party or a Wholly-Owned Restricted Subsidiary if (i) such Loan Party or such Wholly-Owned Restricted Subsidiary, as the case may be, is the surviving entity of such merger (provided that, if such merger involves (x) a Subsidiary Guarantor, the surviving entity of such merger shall be a Subsidiary Guarantor and (y) any Borrower, the surviving entity
of such merger shall be the Borrower) and (ii) immediately after giving effect to such merger, no Default shall have occurred or be continuing;
(c)ESI or any of its Subsidiaries may enter a Permitted Intercompany Transaction; (d)any Restricted Subsidiary may merge or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 8.05 (other than Investments permitted pursuant to clause (f) of the definition of “Permitted Investments”); provided that the continuing or surviving Person shall be a Restricted Subsidiary (and, if such merger or consolidation involves a Borrower, the continuing or surviving Person shall be such Borrower) and shall have complied with
the applicable provisions of Sections 7.12 and 7.14 and the Collateral Documents;
(e)any Immaterial Subsidiary may be liquidated or dissolved; and
(f)ESI may effect the Arysta Sale.
For the avoidance of doubt, it is understood and agreed that at any time PDH may merge with and/or into ESI or MacDermid (so long as ESI or MacDermid, as the case may be, is the continuing or
surviving Person in such merger) or another Loan Party, as the case may be, and nothing herein shall be deemed
to prohibit or otherwise limit such merger.
8.04 Dispositions. Make any Disposition, except:
(a)Dispositions of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business;
(b)Dispositions of inventory in the ordinary course of business;
(c)Dispositions (i) by any Borrower or any Restricted Subsidiary to any Loan Party and (ii) by any Restricted Subsidiary that is not a Loan Party to another Restricted Subsidiary that is not a Loan Party;
(d)other Dispositions (i) for fair market value and for consideration at least 75% of which is cash or Cash Equivalents; provided
that such Cash Equivalents shall mature within 180 days after the date of such Disposition, (ii) the proceeds of which shall be reinvested into the business of the Borrowers and the Restricted Subsidiaries, including through a Permitted Investment or Permitted Acquisition, within the Reinvestment Period or applied in accordance with Section 2.05 if and to the extent required thereby and (iii) so long as the Loan Parties are in Pro Forma Compliance; (e)the dissolution of any Restricted Subsidiary that (i) is not a Loan Party and (ii) is not material to the business of the Borrowers and the Restricted Subsidiaries, taken as a whole; (f)Dispositions
set forth on Schedule 8.04;
(g)other Dispositions in an aggregate amount not to exceed $25,000,000 during any fiscal year;
(h)any issuance or sale of Equity Interests in, or sale of Indebtedness or other securities of, an Unrestricted Subsidiary;
(i)Mergers and consolidations permitted by Section 8.03;
(j)the lease or sublease of Real Property not constituting Indebtedness and not constituting a sale and leaseback transaction;
(k)assignments, licenses, sublicenses, leases and subleases of intellectual property in the ordinary course of business, which
do not interfere in any material respect with the business of any Borrower or any of its Restricted Subsidiaries; (l)Dispositions in connection with Factoring Agreements and/or Receivables Facilities permitted by Section 8.02;
(m)Dispositions of cash and cash equivalents in the ordinary course of business;
(n)the granting of Liens permitted pursuant to Section 8.01;
(o)Dispositions constituting the Arysta Sale;
(p)terminations
or unwinds of derivative transactions; and
(q)Dispositions constituting Restricted Payments permitted by Section 8.05 and Dispositions constituting Permitted Investments.
8.05 Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:
(a)so long as no Event of Default shall have occurred and be continuing or would result therefrom, any Loan Party may repurchase its Equity Interests owned by employees of such Loan Party (or held by any Plans maintained by the foregoing) or make payments to employees of ESI or any of its Restricted Subsidiaries upon termination of employment in
connection with the exercise of stock options, stock appreciation rights or similar equity incentives or equity based incentives pursuant to management incentive plans or other Plans or in connection with the death or disability of such employees in an aggregate amount not to exceed $10,000,000 in any fiscal year (excluding any net repurchases or payments over issuances of such Equity Interests in such fiscal year to such employees) plus (x) the amount of net proceeds of any key-man life insurance policies received during such fiscal year and (y) the amount of any cash bonuses otherwise payable to members of management, directors or consultants that are foregoing in return for the receipt of Equity Interests (the “Distribution Amount”); provided, that the amount of permitted distributions pursuant to this Section 8.05(a) shall be increased
by (A) the unused Distribution Amount for the immediately preceding fiscal year less (B) an amount equal to the unused Distribution Amount carried forward to such preceding fiscal year; (b)the redemption, retirement or defeasance of any Indebtedness ESI or any Restricted Subsidiaries with the Net Cash Proceeds from an incurrence of Permitted Refinancing Indebtedness; (c)the payment of any dividend or distribution by a Restricted Subsidiary to the holders of its Equity Interests on a pro rata basis;
(d)so long as no Event of Default shall have occurred and be continuing or would result therefrom, dividends or distributions by ESI at the times due and in an amount necessary to make payments
in accordance with and to the extent permitted by Section 8.07(f);
(e)dividends or distributions payable in Equity Interests (other than Disqualified Stock) of any Borrower;
(f)so long as no Event of Default or Default shall have occurred and be continuing or would result therefrom, PDH may repurchase its Equity Interests owned by Tartan Holdings, LLC, or ESI and a Loan Party may purchase such Equity Interests of PDH, in each case, ultimately in exchange for Equity Interests of ESI;
(g)in addition to the foregoing and following Restricted Payments, any Loan Party may make additional Restricted Payments to any other Loan Party;
(h)repurchases of Equity Securities
deemed to occur upon the “cashless exercise” of stock options or warrants or upon the vesting of restricted stock units if such Equity Securities represents the exercise price of such options or warrants or represents withholding taxes due upon such exercise or vesting shall be permitted;
(i)[reserved];
(j)so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, Restricted Payments in an aggregate amount at any time outstanding not to exceed the greater of (x) $185,000,000 and (y) 40% of Consolidated EBITDA as of the last day of the last Test Period for which financial statements have been delivered
pursuant to Section 7.01 at any time outstanding;
(k)so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, Restricted Payments in an aggregate amount not to exceed an amount (which shall not be less than zero) equal to the portion, if any, of the Available Amount on the date of such election that the Borrowers elect to apply to this Section 8.05(k), which election shall be specified in a written notice of a Responsible Officer of ESI calculating in reasonable detail the amount of Available Amount immediately prior to such election and the amount thereof elected to be so applied;
(l)so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, prepayments,
redemptions, purchases, defeasances, or other satisfactions prior to the scheduled maturity thereof with respect to the Indebtedness permitted to be secured under Section 8.01(h) in an aggregate amount not to exceed $100,000,000;
(m)so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, Restricted Payments by the Borrowers or any Restricted Subsidiary to the holders of its Equity Interests in an aggregate amount per annum not to exceed 5.0% of Market Capitalization;
(n)additional Restricted Payments if, after giving effect thereto, the Total Net Leverage Ratio is less than or equal to 3.50 to 1.00 on a Pro Forma Basis; provided that no Default or Event of Default shall have occurred and be continuing
or would result therefrom;
(o)to pay customary salary, bonus, severance and other benefits payable to current or former directors, officers, members of management, managers, employees or consultants of any parent company (or any immediate family member of any of the foregoing) to the extent such salary, bonuses, severance and other benefits are attributable and reasonably allocated to the operations of ESI and/or the Restricted Subsidiaries, in each case, so long as such parent company applies the amount of any such Restricted Payment for such purpose; (p)to tender, redeem and/or make an asset sale offer with respect to the remainder of the 2022 Senior Notes and the 2023 Senior Notes; and
(q)any
payments in connection with the Arysta Sale, including, but not limited to, any Purchase Price Adjustment, as defined in the Arysta Sale Agreement.
Further, for purposes of determining compliance with this Section 8.05, (A) Restricted Payments need not be permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) described in this Section 8.05 above or Permitted Investments described in the definition thereof but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) or Permitted Investment meets the criteria of one or more of the categories of permitted Restricted Payments (or any portion thereof) described in this Section 8.05 above or Permitted Investment, the Borrowers may,
in their sole discretion, classify or reclassify, or later divide, classify or reclassify (as if incurred at such later time), such Restricted Payment (or any portion thereof)
in any manner that complies with this Section 8.05 or falls within the definition of a Permitted Investment and will be entitled to only include the amount and type of such Restricted Payment (or any portion thereof) in one of the above clauses (or any portion thereof) or within the definition of Permitted Investment (or any portion thereof) and such Restricted Payment (or any portion thereof) or Permitted Investment shall be treated as having been incurred or existing pursuant to only such clause or clauses (or any portion
thereof) without giving pro forma effect to such item (or portion thereof) when calculating the amount of the Restricted Payment that may be incurred pursuant to any other clause.
8.06 Change in Nature of Business. Engage in any material line of business substantially different from those lines of business conducted by the Borrowers and Restricted Subsidiaries on the Closing Date or any business substantially related or incidental thereto or reasonably ancillary or complementary thereto, including, but not limited to, any line of business in the specialty chemicals market. 8.07 Transactions with Affiliates. Enter into any transaction of any kind involving aggregate consideration
in excess of $5,000,000 with any Affiliate of any Borrower, whether or not in the ordinary course of business, other than on fair and reasonable terms substantially as favorable to such Borrower or such Restricted Subsidiaries as would be obtainable by such Borrower or such Restricted Subsidiaries at such time in a comparable arm’s length transaction with a Person other than an Affiliate, provided that the foregoing restriction shall not apply to: (a)participation by any Borrower or any Restricted Subsidiary in, or effecting any transaction in connection with, any joint enterprise or other joint arrangement with any Affiliate if such Borrower or such Restricted Subsidiary, as
applicable, participates in the ordinary course of its business and on a basis no less advantageous than the basis on which such Affiliate participates;
(b)loans and other transactions among the Loan Parties to the extent permitted by this Article VIII;
(c)any payment from any Restricted Subsidiary to any Borrower;
(d)intercompany Indebtedness permitted under Section 8.02, Restricted Payments permitted under Section 8.05 and Permitted Investments;
(e)compensation arrangements with directors and employees entered into in the ordinary course of business;
(f)fees
may be paid (and expenses may be reimbursed) pursuant to and in accordance with the Advisory Agreement as such agreement is in effect on the Closing Date, as amended; or
(g)issuance of Equity Interests (other than Disqualified Stock) of ESI;
(h)customary agreements, covenants and restrictions contained in agreements relating to the sale of assets or Equity Interests of Subsidiaries of the Borrowers;
(i)transactions between a Borrower or any of the Restricted Subsidiaries
and any person, a director of which is also a director of a Borrower or any direct or indirect parent company of a Borrower; provided, however, that (A) such director abstains from voting as a director of such Borrower or such direct or indirect parent company, as the case may be, on any matter involving such other person and (B) such person is not an Affiliate of a Borrower for any reason other than such director’s acting in such capacity: (j)transactions for the purchase or sale of goods, equipment, products, parts and services entered into in the ordinary course of business;
(k)transactions pursuant to any Factoring Agreements permitted under Section 8.02;
(l)sales of accounts receivable, or participations therein, in connection
with any Receivables Facility permitted under Section 8.02; or
(m)so long as no Event of Default or Default shall have occurred and be continuing or would result therefrom, fees may be paid (and expenses may be reimbursed) pursuant to and in accordance with the Advisory Agreement as such agreement is in effect on the Closing Date.
8.08 Burdensome Agreements. Enter into or permit to exist any Contractual Obligation (other than this Agreement, any other Loan Document, the 2022/2023 Senior Notes Indenture, the 2025 Senior Note Indenture or any Permitted Refinancing Indebtedness incurred to refinance
any such Indebtedness) that limits the ability (i) except as permitted under Section 8.01 or the documentation governing any Credit Agreement Refinancing Indebtedness, of any Borrower or any Restricted Subsidiary to create, incur, assume or suffer to exist Liens on property of such Person to secure the Obligations or any refinancing thereof or (ii) of any Borrower or any Restricted Subsidiary to pay dividends or other distributions with respect to any of its Equity Interests or to make or repay loans or advances, in each case, to any Borrower or any Restricted Subsidiary or to Guarantee Indebtedness of any Borrower or any Restricted Subsidiary; provided that the foregoing restrictions in this Section 8.08 shall not apply to: (a)customary restrictions and conditions contained
in agreements relating to the sale of a Restricted Subsidiary or Unrestricted Subsidiary pending such sale; provided that such restrictions and conditions apply only to the Restricted Subsidiary or Unrestricted Subsidiary (or any Equity Interests therein) that is to be sold and such sale is permitted hereunder;
(b)customary restrictions and conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrowers or any Restricted Subsidiaries are a party and was entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of such Borrower or such Restricted Subsidiary that are
the subject to such agreement; (c)Contractual Obligations which impose (x) restrictions described in clause (i) above, but only to the extent that such restrictions do not materially adversely affect the value of the Collateral granted to secure the Obligations or (y) restrictions described in clause (ii) above, but only to the extent that such restrictions do not materially adversely affect the consolidated cash position of the Loan Parties;
(d)any agreement or other instrument (including an instrument governing Indebtedness) of a Person acquired by any Borrower or any Restricted Subsidiary in existence at the time of such acquisition or at the time it merges with or into any Borrower or any Restricted Subsidiary or assumed in connection with the
acquisition of assets from such Person (but, in any such case, not created in contemplation thereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person and its Subsidiaries, or the property or assets of the Person and its Subsidiaries, so acquired or the property or assets so assumed;
(e)any restrictions created in connection with any Factoring Agreement or Receivables Facility incurred pursuant to Section 8.02
that, in the good faith determination of ESI are necessary or advisable to effect the transactions contemplated under such Factoring Agreement or Receivables Facility;
(f)any contractual encumbrances or restrictions imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the agreements referred to in Section 8.08(d); provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Borrowers, not materially more restrictive with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing;
(g)customary
restrictions on leases, subleases, licenses or sublicenses or sales otherwise permitted hereby so long as such restrictions relate to the assets subject thereto;
(h)customary provisions in joint venture agreements and other similar agreements applicable to joint ventures permitted under this Agreement;
(i)customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(j)restrictions on cash or other deposits under contracts entered into in the ordinary course of business; (k)Contractual Obligations which arise under applicable laws or any applicable rule, regulation or
order;
(l)any agreement or instrument governing Equity Interests of any Person that is acquired;
(m)restrictions and conditions on any Restricted Subsidiary organized in jurisdictions where such restrictions are customary, including the People’s Republic of China, or any state or other political subdivision thereof; or
(n)any provisions in the 2022/23 Senior Note Indenture, 2025 Senior Note Indenture and any indentures similar thereto in connection with Indebtedness permitted hereunder, and any Contractual
Obligations relating thereto. 8.09 Use of Proceeds. Use the proceeds of any Credit Extension, whether directly or indirectly, and whether immediately, incidentally or ultimately, to purchase or carry margin stock (within the meaning of Regulation U of the FRB) or to extend credit to others for the purpose of purchasing or carrying margin stock or to refund Indebtedness originally incurred for such purpose.
8.10 Financial Covenant. (a) Solely in respect of the Revolving Credit Facility, permit the First Lien Net Leverage Ratio as of the last day of any such fiscal quarter of ESI to exceed 5.00 to 1.00 provided that, notwithstanding the foregoing, the financial covenant set forth in this Section 8.10 shall
be tested as of the last day of any such fiscal quarter only in the event that, on the last day of such fiscal quarter, the Total Outstandings (excluding Letters of Credit which have been Cash Collateralized in
accordance with this Agreement) is greater than 30.0% of the Total Revolving Credit Commitments (such occurrence, a “Triggering Event”).
(b) Right to Cure. Notwithstanding anything to the contrary contained in Section 9.01 or 9.02, in the event that the Borrowers fail to comply with the requirements of the
financial covenant set forth in Section 8.10(a) at any time when ESI is required to comply with such financial covenant, pursuant to the terms thereof, then (A) until the expiration of the tenth Business Day subsequent to the date the relevant financial statements are required to be delivered pursuant to Section 7.01 (a) or (b) (the last day of such period being the “Anticipated Cure Deadline”), ESI shall have the right to issue or obtain a contribution to its equity (which shall be in the form of common equity or otherwise in a form reasonably acceptable to the Administrative Agent) for cash (the “Cure Right”), and upon the receipt by ESI of such cash (the “Cure Amount”), pursuant to the exercise
ESI of such Cure Right, the calculation of Consolidated EBITDA as used in the financial covenant set forth in Section 8.10(a) shall be recalculated giving effect to the following pro forma adjustments:
(i) Consolidated EBITDA shall be increased, solely for the purpose of measuring the financial covenant set forth in Section 8.10(a) and not for any other purpose under this Agreement (including but not limited to determining the availability or amount of any covenant baskets or carve-outs (including the determination of the Available Amount) or determining the Applicable Rate), by an amount equal to the Cure Amount; provided that (1) the receipt by ESI of the Cure Amount pursuant to the Cure Right shall be deemed to have no other effect whatsoever under this Agreement (including but not limited
to determining the availability or amount of any covenant baskets or carve-outs or determining the Applicable Rate) and (2) no Cure Amount shall reduce Indebtedness (including as unrestricted cash or Cash Equivalents of the Borrowers and the Restricted Subsidiaries) on a Pro Forma Basis for the applicable fiscal quarter for which such Cure Amount was contributed for purposes of calculating the financial covenant set forth in Section 8.10(a); (ii) If, after giving effect to the foregoing recalculations, the Borrowers shall then be in compliance with the requirements of the financial covenant set forth in Section 8.10(a), the Borrowers shall be deemed to have satisfied the requirements of the financial covenant set forth in Section 8.10(a)
as of the relevant date of determination with the same effect as though there had been no failure to comply therewith at such date, and the applicable breach or default of the financial covenant set forth in Section 8.10(a) that had occurred shall be deemed cured for the purposes of this Agreement; and
(iii) (B) upon receipt by the Administrative Agent of written notice, on or prior to the Anticipated Cure Deadline, that the Borrowers intend to exercise the Cure Right in respect of a fiscal quarter, the Lenders shall not be permitted to accelerate Loans held by them or to exercise remedies against the Collateral on the basis of a failure to comply with the requirements of the financial covenant set forth in Section 8.10(a), unless such failure is not cured pursuant to the exercise of the Cure Right on or prior to the Anticipated Cure
Deadline. For the avoidance of doubt, the Borrower shall not be able to obtain any Credit Extension hereunder until receipt by the Administrative Agent of the Cure Amount.
Notwithstanding anything herein to the contrary, (i) in each four consecutive fiscal-quarter period there shall be at least two fiscal quarters in respect of which the Cure Right is not exercised, (ii) there can be no more than five fiscal quarters in respect of which the Cure Right is exercised during the term of this Agreement and (iii) for purposes of this Section 8.10(b), the Cure Amount utilized shall be no greater than the minimum amount required to remedy the applicable failure to comply with the financial covenant set forth in Section 8.10(a).
8.11 Amendments
of Organization Documents and Certain Other Agreements. Amend, modify or otherwise alter (a) any of its Organization Documents in any manner that would conflict with its obligations under the Loan Documents or (b) the instrument or agreement governing any Indebtedness that is subordinated to the Obligations if such amendment, modification or alteration is in violation of the Customary Intercreditor Agreement entered into with respect thereto.
8.12 Accounting Changes. Make any (a) significant change in a manner adverse to the Lenders in accounting policies or reporting practices, except as permitted or required by generally accepted accounting principles, or (b) change its fiscal year.
8.13 Sale and Leaseback Transactions. Enter into any arrangement, directly or indirectly,
with any Person whereby it shall sell or transfer any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rent or lease such property or other property which it intends to use for substantially the same purpose or purposes as the property being sold or transferred unless (A) (i) the sale of such property is permitted by Section 8.04 and (ii) any capital lease obligations or Liens arising in connection therewith are permitted by Sections 8.02 and 8.01, respectively or (B) in respect of property acquired after the Closing Date, such transaction (a “Permitted Sale Leaseback Transaction”) is consummated within 365 days of such acquisition of property.
8.14 No Other
“Designated Senior Indebtedness”. No Borrower shall designate, nor permit the designation of, any Indebtedness (other than under this Agreement or the other Loan Documents) as “Designated Senior Indebtedness” or any other similar term for the purpose of the definition of the same or the subordination provisions contained in the documentation for all Indebtedness that is subordinated in right of payment to the Obligations (if applicable) or any Permitted Refinancing Indebtedness in respect thereof.
ARTICLE IX
EVENTS OF DEFAULT AND REMEDIES
9.01 Events of Default. Any of the following shall constitute an Event of Default:
(a)Non-Payment. Any Loan Party fails to pay (i)
when and as required to be paid herein, any amount of principal of any Loan or any L/C Obligation, or (ii) within five Business Days after the same becomes due, any interest on any Loan or on any L/C Obligation, or any Commitment Fee or other fee due hereunder or (iii) within five Business Days after the same becomes due, any other amount payable hereunder or under any other Loan Document; or
(b)Specific Covenants. Any Loan Party fails to perform or observe any term, covenant or agreement contained in any of (i) Section 7.01 or 7.03(a), if such failure continues for three Business Days or (ii) Section 7.05, 7.11, 7.17, or Article
VIII; provided that, any Event of Default under Section 8.10 shall not constitute an Event of Default with respect to any Term Loan Facility until the earlier of (x) the date that is 30 days after the date such Event of Default arises with respect to the Revolving Credit Facility and (y) the date on which the Administrative Agent or the Revolving Credit Lenders exercise any remedies with respect to the Revolving Credit Facility in accordance with Section 9.02; provided, further, that any Event of Default under Section 8.10 may be waived, amended or otherwise modified from time to time pursuant to clause (i) of Section
11.01; or
(c)Other Defaults. Any Loan Party fails to perform or observe any other covenant or agreement (not specified in Section 9.01(a) or (b) above) contained in any Loan Document on its part to be performed or observed and such failure continues for 30 days of the earlier of (i) a Responsible Officer of any Loan Party has knowledge of such failure or (ii) receipt by ESI of notice from the Administrative Agent or the Required Lenders of such default; or
(d)Representations and Warranties. Any
representation, warranty, certification or statement of fact made or deemed made by or on behalf of any Loan Party herein, in any other Loan Document, or in any document delivered in connection herewith or therewith shall be incorrect or misleading, in each case in any material respect, when made or deemed made; or
(e)Cross-Default. (i) Any Loan Party or any Significant Subsidiary (or any group of Restricted Subsidiaries that, when taken together, would constitute a Significant Subsidiary) (A) fails to make any payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect of any Indebtedness or Guarantee (other than Indebtedness hereunder and Indebtedness under Swap Contracts)
having an aggregate principal amount (including undrawn committed or available amounts and including amounts owing to all creditors under any combined or syndicated credit arrangement) of more than the Threshold Amount, or (B) fails to observe or perform any other agreement or condition relating to any such Indebtedness or Guarantee in excess of the Threshold Amount or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event occurs, the effect of which default or other event is to cause, or to permit the holder or holders of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if required, such Indebtedness to be demanded or to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Indebtedness
to be made, prior to its stated maturity, or such Guarantee to become payable or cash collateral in respect thereof to be demanded; or (ii) there occurs under any Swap Contract an Early Termination Date (as defined in such Swap Contract) resulting from (A) any event of default under such Swap Contract as to which any Borrower or any Restricted Subsidiary is the Defaulting Party (as defined in such Swap Contract) or (B) any Termination Event (as so defined) under such Swap Contract as to which any Borrower or any Restricted
Subsidiary is an Affected Party (as defined in such Swap Contract) and, in either event, the Swap Termination Value owed by such Loan Party or such Restricted Subsidiary as a result thereof is greater than the Threshold Amount; or (f)Insolvency Proceedings, Etc. Any Loan Party or any Significant Subsidiary (or any group of Restricted Subsidiaries that, when taken together, would constitute a Significant Subsidiary) institutes or consents to the institution of any proceeding under any Debtor Relief Law, or makes an assignment for the benefit of creditors; or applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for
it or for all or any material part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of such Person and the appointment continues undischarged or unstayed for 60 days; or any proceeding under any Debtor Relief Law relating to any such Person or to all or any material part of its property is instituted without the consent of such Person and continues undismissed or unstayed for 60 days, or an order for relief is entered in any such proceeding; or (g)Inability to Pay Debts; Attachment. (i) Any Loan Party or any Significant Subsidiary (or any group of Restricted Subsidiaries that, when taken together, would constitute a Significant Subsidiary) becomes unable or admits in writing its
inability or fails generally to pay its debts as they become due, or (ii) any writ or warrant of attachment or execution or similar process is issued or levied against all or any material part of the material property of any Loan Party or any Significant Subsidiary and is not released, vacated or fully bonded within 30 days after its issue or levy; or
(h)Judgments. There is entered against any Loan Party or any Restricted Subsidiary (i) a final judgment or order for the payment of money in an aggregate amount exceeding the Threshold Amount (to the extent not covered by independent third-party insurance as to which the insurer is rated at least “A” by A.M. Best Borrower and does not dispute
coverage), or (ii) any one or more non-monetary final judgments that have, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and, in either case, (A) enforcement proceedings are commenced by any creditor upon such judgment or order, or (B) there is a period of 30 consecutive days during which a stay of enforcement of such judgment, by reason of a pending appeal or otherwise, is not in effect; or
(i)ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which has resulted or could reasonably be expected to result in a Material Adverse Effect or (ii) any Borrower or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount
in excess of the Threshold Amount; or
(j)Invalidity of Loan Documents. Any material provision of any Loan Document, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or satisfaction in full of all the Obligations, ceases to be in full force and effect; or any Loan Party contests in any manner the validity or enforceability of any material provision of any Loan Document; or any Loan Party denies that it has any or further liability or obligation under any Loan Document, or purports to revoke, terminate or rescind any Loan Document; or
(k)Change of Control. There occurs any Change of Control; or
(l)Collateral Documents. Any Collateral
Document after delivery thereof shall for any reason (other than pursuant to the terms thereof) cease to create a valid and perfected first priority lien on and security interest in the Collateral purported to be covered thereby (subject to Liens expressly permitted under the Loan Documents) (other than by reason of the failure of the Collateral Agent to retain possession of Collateral physically delivered to it (other than due to any act or failure to act by ESI or any of its Subsidiaries)) or the failure of the Collateral Agent to timely file Uniform Commercial Code financing statements or continuation statements or other perfection filings (other than due to any act or failure to act by ESI or any of its Subsidiaries) and is not, upon the written request of an Agent, promptly corrected. 9.02 Remedies
Upon Event of Default. If any Event of Default occurs and is continuing, the Administrative Agent may, and at the request of the Required Lenders, shall take any or all of the following actions (it being understood that during any period during which an Event of Default under Section 8.10 exists solely with respect to the Revolving Credit Facility, the Administrative Agent may, and at the request of the Majority Facility Lenders in respect of the Revolving Credit Facility, shall take any of the actions described below solely as they relate to the Revolving Credit Facility):
(a)declare the commitment of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions to be terminated, whereupon such commitments and obligation shall be terminated;
(b)declare
the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document to be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by each Borrower;
(c)require that the Borrowers Cash Collateralize the L/C Obligations (in an amount equal to 103% the then Outstanding Amount thereof); and
(d)exercise, on behalf of itself, the Lenders and the L/C Issuers all rights and remedies available to it, the Lenders and the L/C Issuers under the Loan Documents or applicable Law;
provided, however, that upon the occurrence of an event with respect to any Borrower
described in Section 9.01(f), the obligation of each Lender to make Loans and any obligation of each L/C Issuer to make L/C Credit Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable, and the obligation of the Borrowers to Cash Collateralize the L/C Obligations as aforesaid shall automatically become effective, in each case, without further act of the Administrative Agent or any Lender.
9.03 Application of Funds. After the exercise of remedies provided for in Section 9.02 (or after the Loans have automatically become immediately due and payable and the L/C Obligations have automatically been required to be Cash Collateralized as set forth in the proviso to
Section 9.02), any amounts received on account of the Obligations shall, subject to the provisions of Section 2.16, be applied by the Administrative Agent in the following order:
First, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including Attorney Costs and amounts payable under Article III) payable to each Agent in its capacity as such;
Second, to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal and interest) payable to the Lenders (including Attorney Costs and amounts payable under Article III), ratably among them in proportion to
the amounts described in this clause Second payable to them;
Third, to (a) payment of that portion of the Obligations constituting accrued and unpaid interest on the Loans and L/C Borrowings, and (b) periodic payments due under any Secured Hedge Agreement, ratably among the Lenders and the Hedge Banks, respectively, in proportion to the respective amounts described in this clause Third payable to them;
Fourth, to (a) payment of that portion of the Obligations constituting unpaid principal of the Loans and L/C Borrowings, (b) payment of breakage, termination or other payments, and any interest accrued thereon, not otherwise paid pursuant to clause Third, due under any Secured Hedge Agreement, (c) payments of amounts due under any Secured Treasury Management Agreement, ratably among the Lenders, the L/C Issuers, Hedge Banks and the Lender
Counterparties in proportion to the respective amounts described in this clause Fourth payable to or held by them and (d) to the Administrative Agent for the account of the L/C Issuer, to Cash Collateralize 103% of that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters of Credit;
Fifth, to the payment of all other Obligations of the Loan Parties owing under or in respect of the Loan Documents that are due and payable to the Administrative Agent and the other Secured Parties on such date, ratably based upon the respective aggregate amounts of all such Obligations owing to the Administrative Agent and the other Secured Parties on such date; and
Last,
the balance, if any, after all of the Obligations have been indefeasibly paid in full, to the Borrowers or as otherwise required by Law.
Subject to Section 2.03(c), amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause Fifth above shall be applied to satisfy drawings under such Letters of Credit as they occur. If any amount remains on deposit as Cash Collateral after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied to the other Obligations, if any, in the order set forth above.
ARTICLE X
THE AGENTS AND THE ARRANGERS
10.01 Appointment and Authority.
(a)Each
of the Lenders and the L/C Issuers hereby irrevocably appoints Barclays Bank PLC to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article X are solely for the benefit of the Administrative Agent, the Lenders and the L/C Issuer, and no Loan Party shall have rights as a third party beneficiary of any of such provisions.
(b)Each of the Lenders (in its capacities as a Lender and potential Hedge Bank) and the L/C Issuers hereby irrevocably appoints Barclays Bank PLC to act on its behalf as the Collateral Agent (for purposes of this Article
X, the Administrative Agent and the Collateral Agent are referred to collectively as the “Agents”) hereunder and hereby authorizes the Collateral Agent to acquire, hold and enforce any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Collateral Agents and any co-agents, sub-agents and attorneys-in-fact appointed by the Collateral Agent pursuant to Section 10.02 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents, or for exercising any rights and remedies thereunder at the direction of the Collateral Agent, shall be entitled to the benefits of all provisions of this Article X and Article
XI (including Section 11.04(c), as though such co-agents, sub-agents and attorneys-in-fact were the Collateral Agent under the Loan Documents) as if set forth in full herein with respect thereto.
10.02 Delegation of Duties. Each Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided
for herein as well as activities as such Agent.
10.03 Rights as a Lender. The Person serving as an Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not an Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as an Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or in
any other advisory capacity for and generally engage in any kind of business with
ESI or any of its Subsidiaries or other Affiliate thereof as if such Person were not an Agent hereunder and without any duty to account therefor to the Lenders. 10.04 Exculpatory Provisions. No Agent shall have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, no Agent:
(a)shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing;
(b)shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the
other Loan Documents that such Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents), provided that the such Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose such Agent to liability or that is contrary to any Loan Document or applicable law; and
(c)shall, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall be liable for the failure to disclose, any information relating to any Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as such Agent or any of its Affiliates in any capacity.
Each Agent shall not be liable for
any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as such Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 11.01 and 9.02) or (ii) in the absence of its own gross negligence or willful misconduct. Each Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice describing such Default is given to such Agent by any Borrower, any Lender or any L/C Issuer.
No Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document
delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (v) the value or the sufficiency of any Collateral, or (vi) the satisfaction of any condition set forth in Article V or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to such Agent.
10.05 Reliance by Agents. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon,
any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter
of Credit, that by its terms must
be fulfilled to the satisfaction of a Lender or an L/C Issuer, an Agent may presume that such condition is satisfactory to such Lender or such L/C Issuer unless such Agent shall have received notice to the contrary from such Lender or such L/C Issuer prior to the making of such Loan or the issuance of such Letter of Credit. Each Agent may consult with legal counsel (who may be counsel for ESI or any of its Restricted Subsidiaries), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. 10.06 Non-Reliance on Agents and Other Lenders. Each Lender and L/C Issuer acknowledges that it has, independently and without reliance upon the Agents, the Syndication
Agent, the Arrangers or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and L/C Issuer also acknowledges that it will, independently and without reliance upon the Agents, the Syndication Agent, the Arrangers or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.
10.07 Resignation of Agent. Each Agent may at any time give notice of its resignation to the Lenders, the L/C Issuers and the Borrowers. Upon receipt of any such notice of resignation,
the Required Lenders shall have the right, in consultation with the Borrowers, to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then such retiring Agent may on behalf of the Lenders and the L/C Issuers, appoint a successor Agent meeting the qualifications set forth above; provided that if such Agent shall notify the Borrowers and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and, subject to the last sentence of this Section 10.07, (a) the retiring Agent shall be discharged from its
duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by the Collateral Agent on behalf of the Lenders or the L/C Issuers under any of the Loan Documents, the retiring Collateral Agent shall continue to hold such collateral security until such time as a successor Collateral Agent is appointed) and (b) all payments, communications and determinations provided to be made by, to or through such Agent shall instead be made by or to each Lender and L/C Issuer directly, until such time as the Required Lenders appoint a successor Agent as provided for above in this Section 10.07. Upon the acceptance of a successor’s appointment as Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Agent, and the retiring Agent shall be discharged from all of its duties and obligations
hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section 10.07). The fees payable by the Borrowers to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After the retiring Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article X and Section 11.04 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring Agent was acting as Agent. In addition, notwithstanding the effectiveness of a resignation by the Administrative Agent hereunder, (a) the retiring Administrative Agent may, in its sole discretion, continue
to provide the services of the Administrative Agent solely with respect to administering, collecting and delivering any payments of principal, interest, fees, premium or other amounts in respect of the Loans and maintaining the books and records relating thereto (such Administrative Agent acting in such capacity, the “Paying Agent”), (b) the
term “Administrative Agent” when used in connection with any such functions shall be deemed to mean such retiring Administrative Agent in its capacity as the Paying Agent and (c) such retiring Administrative Agent shall, in its capacity as the Paying Agent, continue to be vested with and enjoy all of the rights and benefits of an Administrative Agent
hereunder.
10.08 Administrative Agent May File Proofs of Claim. In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan or L/C Obligation shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise:
(a)to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, L/C Obligations and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the
claims of the Lenders, the L/C Issuers and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders, the L/C Issuers and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders, the L/C Issuers and the Administrative Agent under Sections 2.03(i) and (j) and 2.09) allowed in such judicial proceeding; and
(b)to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and each L/C Issuer
to make such payments to the Administrative Agent and, if the Administrative Agent shall consent to the making of such payments directly to the Lenders and the L/C Issuers, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Section 2.09.
Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender or any L/C Issuer any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or any L/C Issuer to authorize the Administrative Agent to vote in respect of the claim of any
Lender or any L/C Issuer or in any such proceeding. 10.09 Collateral and Guaranty Matters. The Lenders and the L/C Issuers irrevocably authorize the Collateral Agent, at its option and in its discretion,
(a)to release any Lien on any property granted to or held by the Collateral Agent under any Loan Document (i) upon termination of the Total Revolving Credit Commitments and payment in full of all Obligations (other than (x) contingent indemnification obligations not yet accrued and payable and obligations in respect of Secured Treasury Management Agreements and (y) Obligations under Secured Hedge Agreements; provided
that the net termination liability under or in respect of, and other amounts due and payable under, each Secured Hedge Agreement at such time shall have been paid or secured in the manner provided in such Secured Hedge Agreement or by a collateral arrangement reasonably satisfactory to the relevant Hedge Bank in its sole discretion) and the expiration or termination of all Letters of Credit, (ii) that is Disposed or to be Disposed of as part of or in connection with any transaction permitted hereunder or under any other Loan Document or (iii) subject to Section 11.01, if approved, authorized or ratified in writing by the Required Lenders; and
(b)to release any Subsidiary Guarantor from its obligations under the Guaranty if such Person ceases to be a Restricted Subsidiary or otherwise becomes an Excluded Subsidiary as a result of a transaction permitted hereunder.
Upon
request by the Collateral Agent at any time, the Required Lenders will confirm in writing the Collateral Agent’s authority to release its interest in particular types or items of property or to release any Guarantor from its obligations under the Guaranty pursuant to this Section 10.09. In each case as specified in this Section 10.09, the Collateral Agent will, at the Borrowers’ expense, execute and deliver to the applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release of such item of Collateral from the assignment and security interest granted under the Collateral Documents, or to release such Guarantor from its obligations under the Guaranty, in each case in accordance with the terms of the Loan Documents and this Section 10.09.
10.10 No
Other Duties, Etc. Anything herein to the contrary notwithstanding, none of the Arrangers or the Syndication Agent listed on the cover page hereof shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as an Agent, a Lender or a L/C Issuer hereunder.
10.11 Certain ERISA Matters.
(a)Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and not, for the avoidance of doubt, to or for the benefit of any 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,
(ii) the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Lender’s
entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement,
(iii) (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Letters of Credit, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement satisfies the requirements of subsections (b) through (g) of Part I of PTE 84-14 and (D)
to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement, or
(iv) such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent (in its sole discretion) and such Lender.
(b)In addition, unless either (1) Section 10.11(a)(i) is true with respect to a Lender or (2) a Lender has provided another representation, warranty and covenant in accordance with Section 10.11(a)(iv), 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 any 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).
ARTICLE XI
MISCELLANEOUS
11.01 Amendments, Etc. No amendment or waiver of any provision of this Agreement or any other Loan Document,
and no consent to any departure by any Loan Party therefrom, shall be effective unless in writing signed by the Required Lenders and ESI or the applicable Loan Party, as the case may be, and acknowledged by the Administrative Agent, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that no such amendment, waiver or consent shall:
(a)extend or increase the Commitment of any Lender (or reinstate any Commitment terminated pursuant to Section 9.02) without the written consent of such Lender;
(b)postpone any date scheduled for any payment of principal or interest under Sections 2.07
or 2.08, or any date fixed in writing by the Administrative Agent for the payment of fees or other amounts due to the Lenders (or any of them) hereunder or under any other Loan Document without the written consent of each Lender directly affected thereby;
(c)reduce the principal of, or the rate of interest specified herein on, any Loan or L/C Borrowing, or (subject to clause (iv) of the second proviso to this Section 11.01) any fees or other amounts payable hereunder or under any other Loan Document without the written consent of each Lender directly affected thereby; provided, however, that only the consent of the Required Lenders shall be necessary to amend the definition of
“Default Rate” or to waive any obligation of any Borrower to pay interest at the Default Rate;
(d)amend or modify the pro rata requirements of Section 3.07, change the provision in Section 11.06(a)(i), change any provision of this Section 11.01 or the definitions of “Required Lenders” or “Majority Facility Lenders” or any other provision hereof specifying the number or percentage of Lenders required to amend, waive or otherwise modify any rights hereunder or make any determination or grant any consent hereunder, without the written consent of each Lender;
(e)change
the provisions of any Loan Document in a manner that by its terms adversely affects the rights in respect of payments due to Lenders holding Loans of one Class differently from the rights of Lenders holding Loans of any other Class without the prior written consent of Lenders holding a majority in interest of the outstanding Loans and unused Commitments of each adversely affected Class;
(f)release all or substantially all of the Collateral in any transaction or series of related transactions, without the written consent of each Lender;
(g)release any Borrower or all or substantially all of the Subsidiary Guarantors, from its or their obligations under the Loan Documents without the written consent of each Lender;
(h)impose any greater restriction on the ability of any Lender
to assign any of its rights or obligations hereunder with respect to any Facility without the written consent of the Majority Facility Lenders then in effect in respect of such Facility. For purposes of this clause, the aggregate amount of each Lender’s risk participation and funded participation in L/C Obligations shall be deemed to be held by such Lender;
(i)amend, waive or otherwise modify any of the terms and provisions (and related definitions) of Section 8.10 (even if the effect of such amendment would be to reduce the rate of interest on any Loan or L/C Borrowing or to reduce any fee payable hereunder) or any of the terms and provisions of the proviso set forth in Section 9.01(b), without the written consent of the Majority Facility Lenders in respect of the Revolving Credit Facility, and, notwithstanding
anything else in this Agreement to the contrary, any such amendment, waiver or other modification shall be effective for all purposes of this Agreement with the written consent of only the Majority Facility Lenders in respect of the Revolving Credit Facility (or the Administrative Agent with the prior written consent thereof), on the one hand, and ESI, on the other hand;
(j)modify the protections afforded to an SPC pursuant to the provisions of Section 11.06(b)(vii) without the written consent of such SPC; or
(k)amend, modify or waive (i) any Loan Document so as to alter the ratable treatment of Obligations under Secured Hedge Agreements or (ii) the definition of “Hedge Bank,” “Secured Hedge Agreement,” or “Obligations,” in each case in a manner that by its terms adversely
affects the rights in respect of Hedge Banks differently from the rights of Lenders generally without the prior written consent of Hedge Banks holding a majority in interest of the Obligations in respect of Secured Hedge Agreements then outstanding,
provided, further, that (i) no amendment, waiver or consent shall, unless in writing and signed by the L/C Issuers in addition to the Lenders required above, affect the rights or duties of the L/C Issuers under this Agreement or any Issuer Document relating to any Letter of Credit issued or to be issued by it and (ii) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required above, affect the rights or duties of, or any fees or other amounts payable to, the Administrative Agent under this Agreement or any other Loan Document. Notwithstanding
anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without the consent of such Lender.
Notwithstanding anything to the contrary herein, if the Administrative Agent and the Borrowers have jointly identified any ambiguity, mistake, defect, inconsistency, obvious error, omission or any other error or omission of a technical nature, in each case, in any provision of any Loan Document, the Borrowers and the Administrative Agent shall be permitted to effect amendments to this Agreement or
any other Loan Document, as applicable, solely to
address such matter and such amendment shall become effective without the consent of any other party to this Agreement so long as, in each case, the Lenders shall have received at least 10 Business Days' prior written notice thereof and the Administrative Agent shall not have received, within 10 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.
If, in connection with any proposed change, waiver, discharge or termination of or to any of the provisions of this Agreement and/or any other Loan Document as contemplated by Section 11.01, the consent of each Lender, each Lender or each affected Lender, as applicable, is required and the consent of the Required Lenders at such time is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained
(each such other Lender, a “Non-Consenting Lender”) then the Borrowers may, on notice to the Administrative Agent and the Non-Consenting Lender, (A) replace such Non-Consenting Lender by causing such Lender to (and such Lender shall be obligated to) assign pursuant to Section 11.06 (with the assignment fee and any other costs and expenses to be paid by the Borrowers in such instance) all of its rights and obligations under this Agreement to one or more assignees; provided that neither the Administrative Agent nor any Lender shall have any obligation to the Borrowers to find a replacement Lender; provided, further, that the applicable assignee shall have agreed to the applicable change, waiver, discharge or termination of this Agreement and/or the other Loan Documents; and provided, further, that all obligations of the Borrowers owing to the Non-Consenting Lender relating to the
Loans, commitments and participations so assigned shall be paid in full by the assignee Lender (or, at their option, by the Borrower) to such Non-Consenting Lender concurrently with such Assignment and Acceptance or (B) prepay the Loans and, if applicable, terminate the commitments of such Non-Consenting Lender, in whole or in part, without premium or penalty. In connection with any such replacement under this Section 11.01, if the Non-Consenting Lender does not execute and deliver to the Administrative Agent a duly completed Assignment and Acceptance and/or any other documentation necessary to reflect such replacement by the later of (a) the date on which the replacement Lender executes and delivers such Assignment and Acceptance and/or such other documentation and (b) the date as of which all obligations of the Borrowers owing to the Non-Consenting Lender relating to the Loans, commitments and participations so assigned
shall be paid in full by the assignee Lender to such Non-Consenting Lender, then such Non-Consenting Lender shall be deemed to have executed and delivered such Assignment and Acceptance and/or such other documentation as of such date and the Borrowers shall be entitled (but not obligated) to execute and deliver such Assignment and Acceptance and/or such other documentation on behalf of such Non-Consenting Lender.
11.02 Notices and Other Communications; Facsimile Copies.
(a)Notices Generally. Except as provided in Section 11.02(b), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopier as follows:
(i) if
to the Borrowers, the Agents or the L/C Issuers, to the address, telecopier number or electronic mail address specified for such Person on Schedule 11.02; and
(ii) if to any other Lender, to the address, telecopier number or electronic mail address specified in its Administrative Questionnaire.
Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices sent by telecopier shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to
have been
given at the opening of business on the next business day for the recipient). Notices delivered through electronic communications to the extent provided in Section 11.02(b) below shall be effective as provided in such Section 11.02(b).
(b)Electronic Communications. Notices and other communications to the Lenders and the L/C Issuers hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent, provided that the foregoing shall not apply to notices to any Lender or any L/C Issuer pursuant to Article II
if such Lender or such L/C Issuer, as applicable, has notified the Administrative Agent that it is incapable of receiving notices under such Article II by electronic communication. The Administrative Agent or the Borrowers may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications. Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), provided
that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient, and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor. (c)The Platform. THE PLATFORM IS PROVIDED “AS
IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to any Borrower, any Lender, any L/C Issuer, any Arranger, the Syndication Agent or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract
or otherwise) arising out of any Borrower’s or the Administrative Agent’s transmission of Borrower Materials through the Internet, except to the extent that such losses, claims, damages, liabilities or expenses are determined by a court of competent jurisdiction by a final and non-appealable judgment to have resulted from the gross negligence or willful misconduct of such Agent Party; provided, however, that in no event shall any Agent Party have any liability to any Borrower, any Lender, any L/C Issuer, any Arranger, the Syndication Agent or any other Person for indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages).
(d)Change
of Address, Etc. Each of the Borrowers, the Agents and the L/C Issuers may change its address or telecopier number for notices and other communications hereunder by notice to the other parties hereto. Each other Lender may change its address, telecopier or telephone number for notices and other communications hereunder by notice to the Borrowers, the Agents, and the L/C Issuers. In addition, each Lender agrees to notify the Administrative Agent from time to time to ensure that the Administrative Agent has on record (i) an effective address, contact name, telephone number, telecopier number and electronic mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such Lender.
(e)Reliance by Agents, L/C Issuers and Lenders. The Agents, the L/C Issuers and the Lenders shall be entitled to rely and act upon any
notices purportedly given by or on behalf of the Borrowers even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. The Borrowers shall indemnify the Agents, each L/C Issuer, each Lender and the Related Parties of each of them from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of the Borrowers. All telephonic notices to and other telephonic communications with the Administrative Agent may be recorded by the Administrative Agent, and each of the parties hereto hereby consents to such recording.
11.03 No Waiver; Cumulative Remedies. No failure by any Lender or the Agents to exercise, and no
delay by any such Person in exercising, any right, remedy, power or privilege hereunder or any other Loan Document shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided, and provided under each other Loan Document, are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.
11.04 Expenses; Indemnity; Damage Waiver.
(a)Costs and Expenses. The Loan Parties shall (i) reimburse from time to time, upon presentation of a reasonably detailed statement all reasonable and documented out-of-pocket expenses incurred by the Agents,
the Syndication Agent, the Arrangers, each Lender, each L/C Issuer and their respective Affiliates (including the fees and expenses, to one primary counsel and, if reasonably necessary, to one local counsel in each appropriate jurisdiction and one special counsel and, solely in the case of an actual or perceived conflict of interest, one or more additional counsel for each affected group), in connection with the syndication of the credit facilities provided for herein, the preparation, negotiation, execution, delivery and administration of this Agreement and the other Loan Documents or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated); (ii) all reasonable and documented out-of-pocket expenses incurred by any L/C Issuer in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) reimburse
from time to time, upon presentation of a reasonably detailed statement, all reasonable and documented out-of-pocket expenses incurred by the Agents, the Syndication Agent, the Arrangers, any L/C Issuer, any Lender (including the reasonable fees and expenses to one primary counsel and, if reasonably necessary, to one local counsel in each appropriate jurisdiction and one special counsel and, solely in the case of an actual or perceived conflict of interest, one or more additional counsel for each affected group), in connection with the enforcement or protection of its rights (A) in connection with this Agreement and the other Loan Documents, including its rights under this Section 11.04, or (B) in connection with Loans made or Letters of Credit issued hereunder, including all such reasonable out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b)Indemnification
by the Borrowers. The Borrowers shall indemnify the Agents (and any sub-agent thereof), the Syndication Agent, the Arrangers, each Lender, each L/C Issuer and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses (including the reasonable fees, charges and disbursements of any counsel for any Indemnitee), incurred by any Indemnitee or asserted against any Indemnitee by any third party or by any Loan Party arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby
or thereby, or, in the case of the Administrative Agent (and any sub-agent thereof) and its Related Parties only, the administration of this Agreement and the other Loan Documents, (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by any L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or Release of Hazardous Materials on or from any property currently or formerly owned or operated by any Borrower or any of its Restricted Subsidiaries, or any other Environmental Claim or Environmental Liability related in any way to any Borrower or any Restricted Subsidiary, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating
to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by any Loan Party or any of such Loan Party’s directors, shareholders or creditors, and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction by final and non-appealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or (y) result from a claim brought by any Loan Party against an Indemnitee for a material breach of such Indemnitee’s obligations hereunder or under any other Loan Document, if such Loan Party has obtained a final and non-appealable judgment in its favor
on such claim as determined by a court of competent jurisdiction. (c)Reimbursement by Lenders. To the extent that any Borrower for any reason fails to indefeasibly pay any amount required under Section 11.04(a) or Section 11.04(b) to be paid to the Agents (or any sub-agent thereof), the Syndication Agent, the Arrangers, the L/C Issuers or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Agents (or any such sub-agent), the Syndication Agent, the Arrangers, the L/C Issuers 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 Agents (or any such sub-agent), the Syndication Agent, the Arrangers or the L/C Issuers in their capacity as such, or against any Related Party of any of the foregoing acting for the Agents (or any such sub-agent), the Syndication Agent, the Arrangers or the L/C Issuers in connection with such capacity. The obligations of the Lenders under this Section 11.04(c) are subject to the provisions of Section 2.12(d).
(d)Waiver of Consequential Damages, Etc. To the fullest extent permitted by applicable
law, the Borrowers shall not assert, and the Borrowers hereby waive, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof. No Indemnitee referred to in Section 11.04(b) above shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed to such unintended recipients by such Indemnitee through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby other than for direct
or actual damages resulting from the gross negligence or willful misconduct of such Indemnitee as determined by a final and non-appealable judgment of a court of competent jurisdiction.
(e)Payments. All amounts due under this Section 11.04 shall be payable not later than 20 Business Days after written demand therefor.
(f)Survival. The agreements in this Section 11.04 shall survive the resignation of the Administrative Agent and any L/C Issuer, the replacement of any Lender, the termination of the Total Revolving Credit Commitments and the repayment, satisfaction or discharge of all the other Obligations.
10.05 Payments Set Aside.
To the extent that any payment by or on behalf of any Borrower is made to the Agents or any Lender, or the Agents or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by the Agents or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each Lender severally agrees to pay to the Agents upon demand their applicable share of any amount so recovered from or repaid by the Agents, plus interest thereon from the date of such demand
to the date such payment is made at a rate per annum equal to the Federal Funds Effective Rate from time to time in effect.
10.06 Successors and Assigns.
(a)Successors and Assigns Generally. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that (i) no Loan Party may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Administrative Agent, each L/C Issuer and each Lender (and any attempted assignment without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer any of its rights or obligations hereunder, except (A) to an assignee in accordance with the provisions of Section
11.06(b) or Section 11.06(i), (B) by way of participation in accordance with the provisions of Section 11.06(d), or (C) by way of pledge or assignment of a security interest subject to the restrictions of Section 11.06(f) (and any other attempted assignment or transfer shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in Section 11.06(d) and, to the extent expressly contemplated hereby, the Related Parties of each of the Agents, the L/C Issuers and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b)Assignments
by Lenders. Any Lender may at any time assign to one or more assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment(s) and the Loans (including for purposes of this Section 11.06(b), participations in L/C Obligations) at the time owing to it); provided that any such assignment shall be subject to the following conditions:
(i) Minimum Amounts.
(A)no minimum amount need be assigned in the case of (x) an assignment of the entire remaining amount of
the assigning Lender’s Commitment under any Facility and the Loans at the time owing to it under such Facility and (y) an assignment by a Lender to any other Lenders, Affiliates and Approved Funds; and
(B)in any case not described in Section 11.06(b)(i)(A), the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) or, if the Commitment is not then in effect, the principal outstanding balance of the Loans of the assigning Lender subject to each such assignment, determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date, shall not be less than, in the case of any Facility, $1,000,000, in the case of any assignment under such Facility, unless each of the
Administrative Agent and, so long as no Event of Default has occurred and is continuing, ESI otherwise consents (each such consent not to be unreasonably withheld or delayed); provided, however, that concurrent assignments to members of an Assignee Group with respect to any Lender and concurrent assignments from members of an Assignee Group with respect to any Lender to a single Eligible Assignee (or to an Eligible Assignee and members of its Assignee Group) will be treated as a single assignment for purposes of determining whether such minimum amount has been met;
(ii) Proportionate Amounts. Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loans or the Commitment assigned,
except that this clause (ii) shall not prohibit any Lender from assigning all or a portion of its rights and obligations among separate Facilities on a non-pro rata basis. If any such assignment shall be of the assigning Lender’s Revolving Credit Outstandings and Revolving Credit Commitments, such assignment shall cover the same percentage of such Lender’s Revolving Credit Outstandings and Revolving Credit Commitment;
(iii) Required Consents. No consent shall be required for any assignment except to the extent required by Section 11.06(b)(i)(B) and, in addition:
(A)the consent of ESI (such consent not to be unreasonably withheld or delayed) shall be required unless (1) an Event of Default has occurred and is continuing
at the time of such assignment, (2) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund or (3) such assignment is during the primary syndication of the Loans and Commitments to Persons identified by the Administrative Agent to ESI on or prior to the Closing Date; provided, that if ESI has not given the Administrative Agent written notice of its objection to such assignment within ten (10) Business Days after written notice to ESI, ESI shall be deemed to have consented to such assignment;
(B)the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required for assignments in respect of (i) any Term Loan Commitment or Revolving Credit Commitment if such assignment is to a Person that is not a Lender with a Commitment in respect of the applicable Facility, an Affiliate of such Lender
or an Approved Fund with respect to such Lender or (ii) any Term Loan to a Person that is not a Lender, an Affiliate of a Lender or an Approved Fund; and
(C)the consent of the L/C Issuer (such consent not to be unreasonably withheld or delayed) shall be required for any assignment in respect of the Revolving Credit Facility.
(iv) Assignment and Assumption. The parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption (such Assignment and Assumption to be delivered via an electronic settlement system reasonably acceptable to the Administrative Agent (or, if previously agreed
with the Administrative Agent, manually)), and shall pay to the Administrative Agent a processing and recordation fee of $3,500 (which fee may be waived or reduced in the sole discretion of the Administrative Agent); provided that only one such fee shall be payable in the event of simultaneous assignments to or from two or more Approved Funds by a single Lender and no fee shall be payable for assignments among related funds or among any Lender and any of its Affiliates. The assignee, if it shall not be a Lender immediately prior to the assignment, shall deliver to the Administrative Agent an Administrative Questionnaire and applicable tax forms. Subject to acceptance and recording thereof by the Administrative Agent pursuant to Section 11.06(c), from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement
and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 3.01, 3.04, 3.05 and 11.04 with respect to facts and circumstances occurring prior to the effective date of such assignment). Upon request, the applicable Borrower (at its sole expense) shall execute and deliver a Note to the assignee Lender.
Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subsection shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section 11.06(d);
(v) No such assignment shall be made to the Borrower or any of its Affiliates or Restricted Subsidiaries, except as set forth in Section 11.06(i); (vi) No Assignment to Natural Persons. No such assignment shall be made to a natural person;
(vii) SPC. Notwithstanding
anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrowers, the option to provide to the Borrowers all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrowers pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if,
such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 11.06(b)(vii), any SPC may (i) with notice to, but without the prior written consent of, ESI and
the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender or to any financial institutions (consented to by ESI and Administrative Agent) providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans and (ii) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC;
(viii) No Assignment to Defaulting Lender. No such assignment shall be made to any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute a Defaulting Lender; and (ix) In
connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participations, or other compensating actions, including funding, with the consent of ESI and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent, each L/C Issuer, each other Lender hereunder (and interest accrued thereon) and the Borrowers,
and (y) acquire (and fund as appropriate) its full pro rata share of all outstanding Term Loans and/or Revolving Credit Commitments, as applicable, and all participations in Letters of Credit. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable Law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
(c)Register. The Administrative Agent, acting solely for this purpose as a non-fiduciary agent of the Borrowers, shall maintain at the Administrative Agent’s Office 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 Commitments of, and
principal amounts (and stated interest) of the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). Upon its receipt of, and consent to, a duly completed Assignment and Assumption executed by an assigning Lender and an assignee, an Administrative Questionnaire completed in respect of the assignee (unless the assignee shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph (b) above, if applicable, and the written consent of the Administrative Agent and, if required, ESI and each L/C Issuer to such assignment and any applicable tax forms, the Administrative Agent shall (i) accept such Assignment and Assumption and (ii) promptly record the information contained therein in the Register. No assignment shall be effective unless it has been recorded in the Register as provided in this Section 11.06(c). The
entries in the Register shall be conclusive, and the Borrowers, the Administrative Agent and the Lenders may 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 Borrowers, any Lender (with respect to any entry relating to such Lender’s Commitment or Loans) and any L/C Issuer, at any reasonable time and from time to time upon reasonable prior notice.
(d)Participations. Any Lender may at any time, without the consent of, or notice to, the Borrowers or the Administrative Agent, sell participations to any Person
(other than a natural person or any Borrower or any of its Affiliates or Restricted Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrowers, the Administrative Agent, the Lenders and the L/C Issuers shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. 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; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in Section 11.01(b), (c), (d), (f) or (g) that affects such Participant. Subject to Section 11.06(e), the Borrowers agree that each Participant shall be entitled to the benefits of Sections 3.01, 3.04
and 3.05 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 11.06(b). To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 11.08 as though it were a Lender, provided such Participant agrees to be subject to Section 2.13 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrowers, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”);
provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) or Proposed Section 1.163-5(b) of the United States Treasury Regulations (or any amended or successor version). 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. (e)Limitations
upon Participant Rights. A Participant shall not be entitled to receive any greater payment under Section 3.01 or 3.04 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with ESI’s prior written consent. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 3.01 unless ESI is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the applicable, to comply with Section 11.14(a) as though it were a Lender.
(f)Certain Pledges. Any Lender
may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including under its Note, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(g)As used herein, the following terms have the following meanings:
“Eligible Assignee” means any Person that meets the requirements to be an assignee under Sections 11.06(b)(iii), (v) and (vi)
(subject to such consents, if any, as may be required under Section 11.06(b)(iii)).
“Fund” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course.
“Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers, advises or manages a Lender.
(h)Electronic
Execution of Assignments. 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 the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
(i)Notwithstanding anything to the contrary herein, any Lender may assign all or any portion of its Term Loans hereunder to ESI or any of its Subsidiaries,
but only if: (i) (A) such assignment is made pursuant to a Dutch Auction open to all Lenders holding Term Loans of the specified Tranche on a pro rata basis or (B) such assignment is made as an open market purchase;
(ii) no Default or Event of Default has occurred and is continuing or would result therefrom;
(iii) any such Term Loans shall be automatically and permanently cancelled immediately upon acquisition thereof by ESI or any of its Subsidiaries; and (iv) ESI and its Subsidiaries do not use the proceeds of any Revolving Credit Facility (whether or not the Revolving Credit Facility has been increased pursuant
to Section 2.14 or extended pursuant to Section 2.16) to acquire such Term Loans. 11.07 Confidentiality. Each Agent, each Lender and each L/C Issuer agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its Affiliates and to its and its Affiliates’ respective partners, directors, trustees, officers, employees, agents, advisors (including accountants, legal counsel and other advisors) and representatives (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential); (b) to the extent requested by any regulatory authority (including any self-regulatory authority, such as the National Association
of Insurance Commissioners); (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process; (d) to any other party to this Agreement; (e) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement, any suit, any other Loan Document or the enforcement of rights hereunder or thereunder; (f) subject to an agreement containing provisions substantially the same as those of this Section 11.07, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement or (ii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to the obligations of the Loan Parties; (g) with the consent of the Borrowers; (h) to the extent such Information (i) becomes publicly available other than
as a
result of a breach of this Section 11.07 or (ii) becomes available to each Agent, any Lender, any L/C Issuer or any of their respective Affiliates on a non-confidential basis from a source other than the Borrowers; or (i) to any rating agency when required by it (it being understood that, prior to any such disclosure, such rating agency shall undertake to preserve the confidentiality of any Information relating to the Loan Parties received by it from such Lender). In addition, each Agent and the Lenders may disclose the existence of this Agreement and information about this Agreement to market data collectors, similar service providers to the lending industry, and service providers to each
Agent and the Lenders in connection with the administration, settlement and management of this Agreement, the other Loan Documents, the Commitments, and the Credit Extensions. “Information” means all information received from any Loan Party or any Restricted Subsidiary relating to any Loan Party or any Restricted Subsidiary or their respective businesses, other than any such information that is available to any Agent, any Lender or any L/C Issuer on a non-confidential basis prior to disclosure by any Loan Party or any Restricted Subsidiary, provided that, in the case of information received from any Loan Party or any Restricted Subsidiary after the Closing Date, such information is clearly identified at the time of delivery as confidential. Any Person required to maintain the confidentiality of Information as provided in this Section 11.07
shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.
Each Agent, each Lender and each L/C Issuer acknowledges that (a) the Information may include material non-public information concerning a Borrower or any of its Subsidiaries, (b) it has developed compliance procedures regarding the use of material non-public information and (c) it will handle such material non-public information in accordance with applicable Law, including federal and state securities Laws. 11.08 Setoff. In addition to any rights and remedies of the Lenders provided by law, upon the occurrence and
during the continuance of any Event of Default and the making of the request or the granting of the consent specified by Section 9.02 to authorize the Administrative Agent to declare the Loans due and payable pursuant to the provisions of Section 9.02, each Lender and each of their respective Affiliates is authorized at any time and from time to time, without prior notice to any Loan Party, any such notice being waived by each Loan Party to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held by, and other Indebtedness at any time owing by, such Lender to or for the credit or the account of the respective Loan Parties against any and all Obligations owing to such Lender hereunder or under any other Loan Document, now or hereafter existing, irrespective of whether or not the Administrative
Agent or such Lender shall have made demand under this Agreement or any other Loan Document and although such Obligations may be contingent or unmatured or denominated in a currency different from that of the applicable deposit or Indebtedness. Each Lender agrees promptly to notify the Borrowers and the Administrative Agent after any such set-off and application made by such Lender; provided, however, that the failure to give such notice shall not affect the validity of such setoff and application. The rights of the Administrative Agent and each Lender and their respective Affiliates under this Section 11.08 are in addition to other rights and remedies (including, without limitation, other rights of setoff) that the Administrative Agent, such Lender and their respective Affiliates may have.
11.09 Interest
Rate Limitation. Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If the Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal,
refunded to the Borrowers. In determining whether the interest contracted for, charged, or received by an Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable
Law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder.
11.10 Counterparts. This Agreement and each other Loan Document may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. To the extent permitted under applicable law, delivery by telecopier or e-mail of an executed counterpart of a signature page to this Agreement and each other Loan Document shall be effective as delivery of an original executed counterpart of this Agreement and such other Loan Document. The Administrative Agent may also require that
any such documents and signatures delivered by telecopier be confirmed by a manually-signed original thereof; provided that the failure to request or deliver the same shall not limit the effectiveness of any document or signature delivered by telecopier.
11.11 Integration. This Agreement, together with the other Loan Documents, comprises the complete and integrated agreement of the parties on the subject matter hereof and thereof and supersedes all prior agreements, written or oral, on such subject matter. In the event of any conflict between the provisions of this Agreement and those of any other Loan Document, the provisions of this Agreement shall control; provided that the inclusion of supplemental rights or remedies in favor of the Agents or the Lenders in any other Loan Document shall
not be deemed a conflict with this Agreement. Each Loan Document was drafted with the joint participation of the respective parties thereto and shall be construed neither against nor in favor of any party, but rather in accordance with the fair meaning thereof.
11.12 Survival of Representations and Warranties. All representations and warranties made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof. Such representations and warranties have been or will be relied upon by the Administrative Agent and each Lender, regardless of any investigation made by the Administrative Agent or any Lender or on their behalf and notwithstanding that the Administrative Agent or any Lender may have had notice or knowledge of any Default at the time of any
Credit Extension, and shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.
11.13 Severability. If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
11.14 Tax
Forms. (a) (i) Each Lender with respect to a Loan or Commitment extended to a US Borrower, if such Lender is not a “United States person” within the meaning of Section 7701(a)(30) of the Code (a “Foreign Lender”) shall, to the extent it is legally able to do so, deliver to the Administrative Agent and the Borrowers, prior to receipt of any payment subject to withholding under the Code (or upon accepting an assignment of an interest herein), two duly signed completed copies of either IRS Form W-8BEN or IRS Form W-8BEN-E or any successor thereto (relating to such Foreign Lender and entitling
it to an exemption from, or reduction of, withholding tax on payments to
be made to such Foreign Lender by the Borrowers pursuant to this Agreement) or IRS Form W-8ECI or any successor thereto (relating to payments to be made to such Foreign Lender by the Borrowers pursuant to this Agreement) or such other applicable evidence satisfactory to the Borrowers and the Administrative Agent that such Foreign Lender is entitled to an exemption from, or reduction of, U.S. withholding tax (including, in the case of a Foreign Lender claiming any exemption pursuant to Section 881(c) of the Code, a certificate to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrowers within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” related to any Borrower described in Section 881(c)(3)(C) of the Code) (each a “Tax Compliance Certificate”).
(ii) Each
Foreign Lender with respect to a Loan or Commitment extended to a US Borrower, to the extent it does not act or ceases to act for its own account with respect to any portion of any sums paid or payable to such Lender under any of the Loan Documents (for example, in the case of a typical participation by such Lender), shall, to the extent that it is legally able to do so, deliver to the Administrative Agent and the Borrowers on the date when such Foreign Lender ceases to act for its own account with respect to any portion of any such sums paid or payable, and at such other times as may be necessary in the determination of the Administrative Agent and the Borrowers (in the reasonable exercise of their discretion), (A) two duly signed completed copies of the forms or statements required to be provided by such Lender as set forth above, to establish the portion of any such sums paid or payable with respect to which such Lender acts for its own account that is not subject
to U.S. withholding tax, and (B) two duly signed completed copies of IRS Form W-8IMY (or any successor thereto), together with IRS Form W-8ECI, IRS Form W-8BEN, IRS Form W-8BEN-E, Tax Compliance Certificates and/or any other certificate or statement of exemption from each beneficial owner required under the Code, as applicable.
(b) Each Lender with respect to a Loan or Commitment extended to a US Borrower that is a “United States person” within the meaning of Section 7701(a)(30) of the Code shall deliver to the Administrative Agent two duly signed completed copies of IRS Form W-9 or otherwise establish an exemption from United States back-up withholding tax.
(c) If a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including
those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine whether such Lender has complied with such Lender’s obligations under FATCA or to determine the amount, if any, to deduct and withhold from such payment. Solely for purposes of this Section 11.14(c), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(d) To
the extent required by any applicable Laws, the Administrative Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding tax. Without limiting or expanding the provisions of this Section 11.14(d), each Lender shall indemnify and hold harmless the Administrative Agent against, and shall make payable in respect thereof (but only to the extent that the Loan Party has not already indemnified the Administrative Agent for any Non-Excluded
Taxes pursuant to Section 3.01 and without limiting the obligation of the Loan Party to do so) within 10 days after demand therefor, any and all taxes and any and all related
losses, claims, liabilities and expenses (including fees, charges and disbursements of any counsel for the Administrative Agent) incurred by or asserted against the Administrative Agent by the IRS or any other Governmental Authority as a result of the failure of the Administrative Agent to properly withhold tax from amounts paid to or for the account of such Lender for any reason (including, without limitation, because the appropriate form was not delivered or not properly executed, or because such Lender failed to notify the Administrative Agent of a change in circumstance that rendered the exemption from, or reduction of withholding tax ineffective). A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Loan
Document against any amount due the Administrative Agent under this Section 11.14(d). The agreements in this Section 11.14(d) shall survive the resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender, the termination of the Total Revolving Credit Commitments, repayment of all other Obligations hereunder and the resignation of the Administrative Agent.
(e) Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Administrative Agent and the Borrowers in writing of its legal inability to do so.
11.15 Replacement of Lenders. Under any circumstances
set forth herein providing that the Borrowers shall have the right to replace a Lender as a party to this Agreement, the Borrowers may, upon notice to such Lender and the Administrative Agent, replace such Lender by causing such Lender to assign all of its interests, rights and obligations (or if any Lender refuses to consent to any amendment, waiver or other modification of any Loan Document requested by the Borrowers that requires the consent of a percentage of the Lenders other than the Required Lenders and such amendment, waiver or other modification is consented to by the Required Lenders, all of its interests, rights and obligations with respect to the Class of Loans or Commitments that is the subject of the related consent, amendment, waiver or other modification), with the assignment fee to be paid by the Borrowers in such instance, pursuant to Section 11.06(b) to one or more other Lenders or Eligible Assignees procured
by the Borrowers; provided, however, that if the Borrowers elect to exercise such right with respect to any Lender pursuant to Section 3.06(b), it shall be obligated to replace all Lenders that have made similar requests for compensation pursuant to Section 3.01 or 3.04. The Borrowers shall (x) pay in full all principal, interest, fees and other amounts owing to such Lender through the date of replacement (including any amounts payable pursuant to Section 3.05 or 2.05(a)(iv), as applicable), (y) provide appropriate assurances and indemnities (which may include letters of credit) to each L/C Issuer as it may reasonably require with respect to any continuing
obligation to fund participation interests in any L/C Obligations then outstanding, and (z) release such Lender from its obligations under the Loan Documents. Any Lender being replaced shall execute and deliver an Assignment and Assumption with respect to such Lender’s Commitment and outstanding Loans and participations in L/C Obligations. Each Lender hereby grants to the Administrative Agent an irrevocable power of attorney (which power is coupled with an interest) to execute and deliver, on behalf of such Lender as assignor, any Assignment and Assumption necessary to effectuate any assignment of such Lender’s interests hereunder in the circumstances contemplated by this Section 11.15. 11.16 Governing Law. (a) THIS AGREEMENT AND ANY OTHER LOAN
DOCUMENT AND ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT (WHETHER ARISING IN CONTRACT,
TORT OR OTHERWISE) SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW RULES THAT WOULD RESULT IN THE APPLICATION OF A DIFFERENT GOVERNING LAW (OTHER THAN ANY MANDATORY PROVISIONS OF THE UCC RELATING TO THE LAW GOVERNING PERFECTION AND THE EFFECT OF PERFECTION OR PRIORITY OF THE SECURITY INTERESTS).
(b) EACH LOAN PARTY HEREBY, EXPRESSLY, IRREVOCABLY AND UNCONDITIONALLY SUBMITS,
FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF ANY NEW YORK STATE COURT OR FEDERAL COURT OF THE UNITED STATES OF AMERICA SITTING IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT. EACH PARTY HERETO IRREVOCABLY WAIVES (I) ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT OR OTHER DOCUMENT RELATED THERETO AND (II) THEIR RIGHTS TO ANY OTHER JURISDICTION THAT MAY APPLY BY VIRTUE OF THEIR PRESENT OR ANY OTHER FUTURE DOMICILE OR FOR ANY OTHER REASON. EACH PARTY HERETO WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY
THE LAW OF SUCH STATE.
(c) EACH LOAN PARTY HEREBY IRREVOCABLY DESIGNATES, APPOINTS AND EMPOWERS CORPORATION SERVICE COMPANY WITH OFFICES ON THE DATE HEREOF IN NEW YORK, NEW YORK (OR SUCH OTHER AGENT TO RECEIVE SERVICE OF PROCESS IN NEW YORK, NEW YORK AS IS REASONABLY ACCEPTABLE TO THE ADMINISTRATIVE AGENT), AS ITS DESIGNEE, APPOINTEE AND AGENT TO RECEIVE, ACCEPT AND ACKNOWLEDGE FOR AND ON ITS BEHALF, AND IN RESPECT OF ITS PROPERTY, SERVICE OF ANY AND ALL LEGAL PROCESS, SUMMONS, NOTICES AND DOCUMENTS WHICH MAY BE SERVED IN ANY SUCH ACTION OR PROCEEDING. IF FOR ANY REASON SUCH DESIGNEE, APPOINTEE, AND AGENT SHALL CEASE TO BE AVAILABLE TO ACT AS SUCH, EACH LOAN PARTY AGREES TO DESIGNATE A NEW DESIGNEE, APPOINTEE AND AGENT IN NEW YORK ON THE TERMS AND FOR THE PURPOSES OF THIS PROVISION SATISFACTORY TO THE ADMINISTRATIVE AGENT UNDER THIS AGREEMENT. EACH LOAN PARTY FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY
OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO SUCH LOAN PARTY AT ITS ADDRESS SET FORTH ON SCHEDULE 11.02, SUCH SERVICE TO BECOME EFFECTIVE 10 DAYS AFTER SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT UNDER THIS AGREEMENT, ANY LENDER OR THE HOLDER OF ANY NOTE TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE BORROWERS IN ANY OTHER JURISDICTION.
11.17 Binding Effect. This Agreement shall become effective when it shall have been executed by each of the parties hereto and thereafter shall be binding upon and inure to the benefit of each of the
parties
hereto and their respective successors and assigns, except that the Loan Parties shall not have the right to assign their rights hereunder or any interest herein without the prior written consent of the Administrative Agent, the L/C Issuers and the Lenders.
11.18 Waiver of Right to Trial by Jury. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION. 11.19 USA PATRIOT Act Notice. The Administrative Agent (for itself and not on behalf of any Lender) and each Lender hereby notifies the Borrowers that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law on October 26, 2001)) (the “Patriot Act”) and the Beneficial Ownership Regulation, it is required to obtain, verify and record information that identifies each Loan Party, which information includes the name and address of each Loan Party and
other information that will allow the Administrative Agent or such Lender, as applicable, to identify each Loan Party in accordance with the Patriot Act and the Beneficial Ownership Regulation. 11.20 Waiver of Notice of Termination. Those Lenders party hereto which are also party to the Existing Credit Agreement hereby waive any prior notice requirement under the Existing Credit Agreement with respect to the termination of commitments thereunder and the making of any prepayments thereunder.
11.21 Headings. Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and are not to affect the construction of, or to be taken into consideration in interpreting, this Agreement. 11.22 Joint
and Several Obligations. Each Borrower is accepting joint and several liability hereunder and under the other Loan Documents, the Secured Hedge Agreements and the Secured Treasury Management Agreements in consideration of the financial accommodation to be provided by the Lenders, the L/C Issuers, any Agent, Arranger or Lender or any Affiliate of any of the foregoing and the Hedge Banks under this Agreement, the other Loan Documents, the Secured Hedge Agreements and the Secured Treasury Management Agreements, for the mutual benefit, directly and indirectly, of the other Borrower and in consideration of the undertakings of the other Borrower to accept joint and several liability for such Borrower. Each Borrower jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrower with respect to the payment and performance of all of the Obligations,
it being the intention of the parties hereto that all the Obligations shall be the joint and several obligations of each of the Borrowers without preferences or distinction between them. If and to the extent that any Borrower shall fail to make any payment with respect to any Obligation as and when due or to perform any Obligation in accordance with the terms thereof, then in each such event, the other Borrower will make such payment with respect to, or perform, such Obligation. The obligations of each Borrower under the provisions of this Section 10.20
constitute full recourse obligations of such Borrower, enforceable against it to the full extent of its properties and assets, irrespective
of the validity, regularity or enforceability of this Agreement or any other circumstances whatsoever.
Except as otherwise expressly provided herein, each Borrower hereby waives, to the extent permitted by applicable law, notice of acceptance of its joint and several liability. Except as otherwise expressly provided herein, each Borrower hereby waives, to the extent permitted by law, notice of any Loan made under this Agreement, notice of occurrence of any Default or Event of Default or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by any Lender under or in respect of any of the Obligations, any requirement of diligence and, generally, all demands, notices and other formalities of every kind in connection with this Agreement. Each Borrower hereby assents to, and waives notice of, to the extent permitted by applicable law, any extension or postponement of the time for
the payment of any Obligation, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by any Lender at any time or times in respect of any default by the other Borrower in the performance or satisfaction of any term, covenant, condition or provision of this Agreement, any and all other indulgences whatsoever by any Lender in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any Obligation or the addition, substitution or release, in whole or in part, of the other Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting or failure to act on the part of any Lender, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with the applicable laws or regulations thereunder which might, but for the
provisions of this Section 11.22, afford grounds for terminating, discharging or relieving such Borrower, in whole or in part, from any of its obligations under this Section 11.22, it being the intention of each Borrower that, so long as any Obligation remains unsatisfied, the obligations of such Borrower under this Section 11.22 shall not be discharged except by performance or payment and then only to the extent of such performance or payment. The obligations of each Borrower under this Section 11.22 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any Borrower or any Lender. The joint and several liability of the Borrowers hereunder shall continue in full force and effect
notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any Borrower or any Lender.
The provisions of this Section 11.22 are made solely for the benefit of the Administrative Agent and the other Secured Parties and their respective successors and assigns, and may be enforced by any such Person from time to time against any Borrower as often as occasion therefor may arise and without requirement on the part of the Administrative Agent or any other Secured Party first to marshal any of its claims or to exercise any of its rights against the other Borrower or to exhaust any remedies available to it against the other Borrower or to resort to any other source or means of obtaining payment of any Obligation or to elect any other remedy. If at any time, any payment, or any part thereof, made in respect
of any Obligation, is rescinded or must otherwise be restored or returned by the Administrative Agent or any other Secured Party upon the insolvency, bankruptcy or reorganization of any Borrower, or otherwise, the provisions of this Section 11.22 will forthwith be reinstated in effect, as though such payment had not been made.
Notwithstanding any provision to the contrary contained herein or in any other Loan Document, to the extent the joint and several obligations of any Borrower shall be adjudicated to be invalid or unenforceable for any reason (including because of any applicable state, provincial or federal law relating to fraudulent conveyances or transfers) then the obligations of such Borrower hereunder shall be limited
to
the maximum amount that is permissible under applicable law (whether federal, state or provincial and including, without limitation, Title 11 of the United States Code, as now constituted or hereafter amended, or any other Debtor Relief Laws), after taking into account, among other things, such Borrower’s right of contribution and indemnification from each other Loan Party under applicable law.
11.23 Judgment Currency. (a) The obligations of the Borrowers or any Additional Borrower under the Loan Documents to make payments in Dollars or an Alternative Currency, as the case may be (the “Obligation Currency”), shall not be discharged or satisfied by any tender or recovery pursuant to any judgment expressed in or converted into any currency other than the Obligation Currency, except to the extent that such tender or recovery results in
the effective receipt by the Administrative Agent or a Lender of the full amount of the Obligation Currency expressed to be payable to the Administrative Agent or Lender under the Loan Documents. If, for the purpose of obtaining or enforcing judgment against any Loan Party in any court or in any jurisdiction, it becomes necessary to convert into or from any currency other than the Obligation Currency (such other currency being hereinafter referred to as the “Judgment Currency”) an amount due in the Obligation Currency, the conversion shall be made, at the Dollar Equivalent of such amount, in each case, as of the date immediately preceding the day on which the judgment is given (such Business Day being hereinafter referred to as the “Judgment Currency Conversion Date”).
(b) If there is a change in the rate of exchange prevailing between
the Judgment Currency Conversion Date and the date of actual payment of the amount due, the Borrowers covenant and agree to pay, or cause to be paid, such additional amounts, if any (but in any event not a lesser amount), as may be necessary to ensure that the amount paid in the Judgment Currency, when converted at the rate of exchange prevailing on the date of payment, will produce the amount of the Obligation Currency which could have been purchased with the amount of Judgment Currency stipulated in the judgment or judicial award at the rate of exchange prevailing on the Judgment Currency Conversion Date.
For purposes of determining the Dollar Equivalent, such amounts shall include any premium and costs payable in connection with the purchase of the Obligation Currency.
11.24 Acknowledgement and Consent to Bail-In of EEA Financial Institutions. Notwithstanding
anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a)the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an EEA Financial Institution; and
(b)the effects of any Bail-in Action on any such liability, including, if applicable:
(i) a reduction in full or in part or cancellation of
any such liability;
(ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or
(iii) the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any EEA Resolution Authority.
11.25 Acknowledgement Regarding
any Supported QFCs. To the extent that the Loan Documents provide support, through a guarantee or otherwise, for any Swap Contract or any other agreement or instrument that is a QFC (such support, “QFC Credit Support”, and each such QFC, a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents
and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States): (a)In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United
States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.
(b)As used in this Section
11.25, the following terms have the following meanings:
“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
“Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default
Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D). [Signature Pages Omitted]