UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported): June 27, 2017
Mercury Systems, Inc.
(Exact Name of Registrant as Specified in Charter)
Massachusetts | 000-23599 | 04-2741391 | ||
(State or Other Jurisdiction of Incorporation) | (Commission File Number) | (IRS Employer Identification No.) | ||
50 Minuteman Road, Andover, Massachusetts 01810
(Address of Principal Executive Offices) (Zip Code)
Registrant’s telephone number, including area code: (978) 256-1300
Not Applicable
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8- K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
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Item 1.01 Entry Into a Material Definitive Agreement
On June 27, 2017, Mercury Systems, Inc. (the “Company”) and certain of the Company’s subsidiaries, as guarantors, entered into an Amendment No. 1 to the Company’s Credit Agreement dated May 2, 2016 (the Credit Agreement, as amended by Amendment No. 1, the “Amended Credit Agreement”) with a syndicate of commercial banks and Bank of America, N.A acting as the administrative agent. The Amended Credit Agreement provides for a $400 million revolving credit facility. Mercury repaid the $192.5 million remaining principal on its term loan under the original Credit Agreement using cash on hand. The new $400 million revolving facility remained undrawn at the closing of the refinancing, other than for outstanding letters of credit.
Maturity
The Amended Credit Agreement has a five year maturity.
Interest Rates and Fees
Borrowings under the Amended Credit Agreement bear interest, at the Company’s option, at floating rates tied to LIBOR or the prime rate plus an applicable percentage. The applicable percentage has initially been set at LIBOR plus 1.375% and in future fiscal quarters will be established pursuant to a pricing grid based on the Company’s total net leverage ratio.
In addition to interest on the aggregate outstanding principal amounts of any borrowings, the Company will also pay a quarterly commitment fee on the unutilized commitments under the revolving credit facility, which fee has initially been set at 0.25% per annum and in future fiscal quarters will be established pursuant to a pricing grid based on the Company’s total net leverage ratio. The Company will also pay customary letter of credit and agency fees.
Covenants and Events of Default
The Amended Credit Agreement provides for customary negative covenants, including, among other things and subject to certain significant exceptions, restrictions on the incurrence of debt or guarantees, the creation of liens, the making of certain investments, loans and acquisitions, mergers and dissolutions, the sale of assets including capital stock of subsidiaries, the payment of dividends, the repayment or amending of junior debt, altering the business conducted, engaging in transactions with affiliates and entering into agreements limiting subsidiary dividends and distributions. The Amended Credit Agreement also requires the Company to comply with certain financial covenants, including a quarterly minimum consolidated cash interest charge ratio test and a quarterly maximum consolidated total net leverage ratio test.
The Amended Credit Agreement also provides for customary representations and warranties, affirmative covenants and events of default (including, among others, the failure to make required payments of principal and interest, certain insolvency events, and an event of default upon a change of control). If an event of default occurs, the lenders under the Amended Credit Agreement will be entitled to take various actions, including the termination of unutilized commitments, the acceleration of amounts outstanding under the Amended Credit Agreement and all actions permitted to be taken by a secured creditor.
Guarantees and Security
The Company’s obligations under the Amended Credit Agreement are guaranteed by certain of the Company’s material domestic wholly-owned restricted subsidiaries (the “Guarantors”). The obligations of both the Company and the Guarantors are secured by a perfected security interest in substantially all of the assets of the Company and the Guarantors, in each case, now owned or later acquired, including a pledge of all of the capital stock of substantially all of the Company’s domestic wholly-owned restricted subsidiaries and 65% of the capital stock of certain of its foreign restricted subsidiaries, subject in each case to the exclusion of certain assets and additional exceptions.
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The foregoing description of the Amended Credit Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Amendment No. 1, which is filed as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated by reference into this Item 1.01.
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant
On June 27, 2017 the Company and certain of the Company’s subsidiaries entered into an Amendment No. 1 to the Company’s Credit Agreement dated May 2, 2016 (the Credit Agreement, as amended by Amendment No. 1, the “Amended Credit Agreement”) with a syndicate of commercial banks and Bank of America, N.A acting as the administrative agent. Reference is made to Item 1.01 of this Current Report on Form 8-K for a summary of the Amended Credit Agreement.
Item 7.01 Regulation FD Disclosure
On June 27, 2017, the Company issued a press release announcing the Amendment No. 1 to the Company’s Credit Agreement. The press release is furnished as Exhibit 99.1 hereto. The information provided in Item 7.01 of this Current Report on Form 8-K and in the attached Exhibit 99.1 shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that section, nor shall it be deemed incorporated by reference in any filing under the Securities Act of 1933, as amended, or the Exchange Act, except as shall be expressly set forth by specific reference in such a filing.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
Exhibit No. | Description | |
10.1 | Amendment No. 1 to Credit Agreement, dated June 27, 2017, among Mercury Systems, Inc., the Guarantors party thereto, the Lenders party thereto and Bank of America, N.A., as Administrative Agent and Collateral Agent | |
99.1 | Press release, dated June 27, 2017, of Mercury Systems, Inc. | |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
Dated: June 27, 2017 | MERCURY SYSTEMS, INC. | |||||
By: | /s/ Gerald M. Haines II | |||||
Gerald M. Haines II | ||||||
Executive Vice President, Chief Financial Officer, and Treasurer | ||||||
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Exhibit Index
Exhibit No. | Description | |
10.1 | Amendment No. 1 to Credit Agreement, dated June 27, 2017, among Mercury Systems, Inc., the Guarantors party thereto, the Lenders party thereto and Bank of America, N.A., as Administrative Agent and Collateral Agent | |
99.1 | Press release, dated June 27, 2017, of Mercury Systems, Inc. | |
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AMENDMENT NO. 1
This AMENDMENT NO. 1 dated as of June 27, 2017 (this “Amendment”), is entered
into among MERCURY SYSTEMS, INC., a Massachusetts corporation (the “Borrower”), certain
subsidiaries of the Borrower, as Guarantors, the Lenders party hereto (collectively, the “Lenders”
and individually, a “Lender”), and BANK OF AMERICA, N.A., in its capacity as administrative
agent for the Lenders (in such capacity, the “Administrative Agent”), and amends the Credit
Agreement dated as of May 2, 2016 (as amended, supplemented or otherwise modified from time
to time prior to the date hereof, the “Existing Credit Agreement”) entered into among the
Borrower, the Guarantors party thereto, the Lenders from time to time party thereto and the other
parties thereto. Capitalized terms used herein and not otherwise defined herein shall have the
meanings ascribed to them in the Existing Credit Agreement.
W I T N E S S E T H:
WHEREAS, on the date hereof, the Borrower, the Administrative Agent and each
Person listed on Schedule 2.01 hereto (the “New Revolving Credit Lenders”) desire to amend the
Existing Credit Agreement in its entirety to, among other things, refinance the Revolving Credit
Loans and Revolving Credit Commitments outstanding prior to the Amendment No. 1 Effective
Date with a new senior secured revolving credit facility in an aggregate principal amount of
$400,000,000 (“New Revolving Credit Facility”) and the commitments thereunder (the “New
Revolving Credit Commitments”);
WHEREAS, after giving effect to the repayment in full on the date hereof of all
outstanding Term Loans under the Existing Credit Agreement, the Lenders party hereto
constitute Required Lenders under the Existing Credit Agreement; and
WHEREAS, on the date hereof, each New Revolving Credit Lender has delivered its
signature page hereto; and
WHEREAS, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Citibank, N.A.,
KeyBanc Capital Markets Inc., JPMorgan Chase Bank, N.A. and SunTrust Robinson Humphrey,
Inc. are acting as joint lead arrangers and joint book managers for this Amendment (the
“Amendment No. 1 Lead Arrangers”);
NOW, THEREFORE, in consideration of the premises and for other good and valuable
consideration (the receipt and sufficiency of which is hereby acknowledged), the parties hereto,
intending to be legally bound hereby, agree as follows:
1. Amendments.
(a) Effective as of the Amendment No.1 Effective Date, and subject to the terms and
conditions set forth herein, the Existing Credit Agreement is hereby amended in its entirety in the
form of Exhibit A hereto (as so amended, the “Amended Credit Agreement”).
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(b) Effective as of the Amendment No. 1 Effective Date, and subject to the terms and
conditions set forth herein, Schedule 2.01 to the Existing Credit Agreement is hereby amended
and restated in its entirety in the form of Schedule 2.01 hereto.
(c) Effective as of the Amendment No. 1 Effective Date, and subject to the terms and
conditions set forth herein, the Security Agreement is hereby amended pursuant to Section 11.01
of the Credit Agreement and Section 6.02 of the Security Agreement as follows:
Section 3.01(e) of the Security Agreement is hereby amended to delete the statement
“and filings in the applicable real estate records with respect to any fixtures relating to
Mortgaged Properties and the filing of Mortgages in the applicable filing offices”.
2. Conditions to Effectiveness.
This Amendment and the obligation of each New Revolving Credit Lender shall become
effective on the date (the “Amendment No. 1 Effective Date”) when each of the following
conditions shall have been satisfied:
(a) The Administrative Agent shall have received the following:
(i) counterparts of this Amendment executed and delivered by a duly
authorized officer of each of the Credit Parties, the New Revolving Credit Lenders, the
L/C Issuer, the Swingline Lender, the Administrative Agent, the Collateral Agent and
Lenders constituting the Required Lenders;
(ii) a customary opinion of legal counsel from Ropes & Gray LLP, counsel to
the Credit Parties;
(iii) with respect to each Credit Party, copies of the Organization Documents
of such Credit Party certified to be true and complete as of a recent date by the
appropriate Governmental Authority of the state or other jurisdiction of its incorporation
or organization, where applicable, and certified by a Responsible Officer of such Credit
Party to be true and correct as of the Amendment No. 1 Effective Date;
(iv) with respect to each Credit Party, such certificates or resolutions or other
action, incumbency certificates and/or other certificates of Responsible Officers of such
Credit Party dated the Amendment No. 1 Effective Date evidencing the identity, authority
and capacity of each Responsible Officer thereof authorized to act as a Responsible
Officer in connection with this Amendment and the other Credit Documents to which
Credit Party is a party; and
(v) good standing certificates for each Credit Party as of a recent date in its
state or organization or formation.
(b) The Administrative Agent shall have received a certificate of a Responsible
Officer to the effect that the representations and warranties set forth in Section 3 hereof are true
and correct.
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(c) The Administrative Agent shall have received the results of UCC, tax and
judgment lien searches.
(d) The Administrative Agent shall have received a notice of prepayment in full of all
Term Loans outstanding under the Existing Credit Agreement and, prior to or substantially
concurrently with the occurrence of the Amendment No. 1 Effective Date, the Administrative
Agent shall have received a prepayment of all outstanding Term Loans equal to the outstanding
principal amount of all outstanding Term Loans plus all accrued and unpaid interest thereon.
(e) Prior to or substantially concurrently with the Amendment No. 1 Effective Date,
the Borrower shall have paid an upfront fee to the Administrative Agent, for the ratable account
of the New Revolving Credit Lenders equal to the sum of (x) 0.05% multiplied by the principal
amount of such Lender’s New Revolving Credit Commitment on the Amendment No. 1
Effective Date that is not in excess of such Lender’s “Revolving Credit Commitment” under the
Existing Credit Agreement immediately prior to the Amendment No. 1 Effective Date and (y)
0.25% multiplied by the principal amount of such Lender’s New Revolving Credit Commitment
that is in excess of the amount of such Lender’s New Revolving Credit Commitment that is
subject to the foregoing subclause (x).
(f) Prior to or substantially concurrently with the occurrence of the Amendment No.
1 Effective Date, the Borrower shall have paid all costs and expenses owing to the Amendment
No. 1 Lead Arrangers that are due and payable on or prior to the Amendment No. 1 Effective
Date and, to the extent invoiced at least two Business Days prior to the Amendment No. 1
Effective Date, all reasonable costs and expenses of the Administrative Agent and the
Amendment No. 1 Lead Arrangers in connection with this Amendment.
3. Representations and Warranties.
On and as of the Amendment No. 1 Effective Date, the Borrower hereby represents and
warrants to the Administrative Agent and each New Revolving Credit Lender, after giving effect
to the amendments set forth in this Amendment, that:
(a) The representations and warranties of the Borrower and each other Credit Party
contained in Article 6 of the Amended Credit Agreement or any other Credit Document are true
and correct in all material respects (except that any representation and warranty that is qualified
as to “materiality” or “Material Adverse Effect” is true and correct in all respects) on and as of
the date hereof, 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 (except that
any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect”
shall be true and correct in all respects) as of such earlier date; and
(b) No Default or Event of Default exists.
4. Reference to the Effect on the Credit Documents.
(a) Each reference in the Existing Credit Agreement to “this Agreement,”
“hereunder,” “hereof,” “herein,” or words of like import and each reference in the other Credit
Documents to the Existing Credit Agreement (including, without limitation, by means of words
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like “thereunder,” “thereof” and words of like import), shall mean and be a reference to the
Amended Credit Agreement.
(b) Except as expressly amended hereby, all of the terms and provisions of the Credit
Documents are and shall remain in full force and effect and are hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall not, except as
expressly provided herein, operate as a waiver of any right, power or remedy of the Lenders, the
Borrower or the Administrative Agent under any of the Credit Documents, nor constitute a
waiver or amendment of any other provision of any of the Credit Documents or for any purpose
except as expressly set forth herein.
(d) On and after the effectiveness of this Amendment, this Amendment shall for all
purposes constitute a Credit Document.
5. Reaffirmation.
Each Credit Party hereby consents to this Amendment and acknowledges and agrees that,
notwithstanding the execution and delivery of this Amendment, the Collateral Documents and, to
the extent such Credit Party is a party thereto, the Guaranty provided to the Administrative Agent
by such Credit Party remain in full force and effect and the security interest granted by such
Credit Party under the Collateral Documents shall secure all Secured Obligations (as defined in
the Amended Credit Agreement), and the rights and remedies of the Administrative Agent
thereunder and the obligations and liabilities of such Credit Party thereunder, in each case, as
have been amended by this Amendment, remain in full force and effect and shall not be affected,
impaired or discharged hereby.
This Amendment does not constitute a novation of the Credit Agreement.
6. Execution in Counterparts.
This Amendment may be executed in counterparts (and by different parties hereto in
different counterparts), each of which shall constitute an original, but all of which when taken
together shall constitute a single contract. Delivery of an executed counterpart by telecopy or
other electronic transmission shall be effective as delivery of a manually executed counterpart of
this Amendment.
7. Governing Law.
THIS AMENDMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING
UNDER OR RELATED TO THIS AMENDMENT (INCLUDING ANY CLAIMS SOUNDING
IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER
HEREOF) SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAW OF THE STATE OF NEW YORK.
8. Section Titles.
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Section headings herein and in the other Credit Documents are included for convenience
of reference only and shall not affect the interpretation of this Amendment or any other Credit
Document.
9. Severability.
If any provision of this Amendment or the other Credit Documents is held to be illegal,
invalid or unenforceable, the legality, validity and enforceability of the remaining provisions of
this Amendment and the other Credit Documents shall not be affected or impaired thereby and
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.
10. Successors.
The terms of this Amendment shall be binding upon, and shall inure to the benefit of, the
parties hereto and their respective permitted successors and assigns.
11. Waiver of Jury Trial.
EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT
OF OR RELATING TO THIS AMENDMENT OR ANY OTHER CREDIT 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 AMENDMENT AND
THE OTHER CREDIT DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers and general partners thereunto duly authorized, as of the
date first written above.
Borrower
MERCURY SYSTEMS, INC.
By: /s/ Gerald M. Haines II
Name: Gerald M. Haines II
Title: Executive Vice President, Chief Financial
Officer and Treasurer
Subsidiary Guarantors
MERCURY DEFENSE SYSTEMS, INC.
By: /s/ Gerald M. Haines II
Name: Gerald M. Haines II
Title: Chief Financial Officer and Treasurer
MERCURY CORP. – SECURITY SOLUTIONS
By: /s/ Gerald M. Haines II
Name: Gerald M. Haines II
Title: Chief Financial Officer and Treasurer
ARXAN RESEARCH, INC.
By: /s/ Gerald M. Haines II
Name: Gerald M. Haines II
Title: Chief Financial Officer and Treasurer
DELTA MICROWAVE, LLC
By: /s/ Gerald M. Haines II
Name: Gerald M. Haines II
Title: Executive Vice President, Chief Financial
Officer and Treasurer
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2
BANK OF AMERICA, N.A.,
as Administrative Agent, Collateral Agent, New
Revolving Credit Lender and L/C Issuer
By: /s/ Monica Sevila
Name: Monica Sevila
Title: Senior Vice President
[LENDER], as a New Revolving Credit Lender
By: ___________________________________
Name:
Title:
EXHIBIT A
AMENDED CREDIT AGREEMENT
[See attached]
1
Error! Unknown document property name.
CREDIT AGREEMENT
dated as of May 2, 2016,
as amended by Amendment No. 1 dated as of June 27, 2017
among
MERCURY SYSTEMS, INC.,
as the Borrower
and
CERTAIN SUBSIDIARIES OF THE BORROWER,
as Guarantors,
THE LENDERS PARTY HERETO,
BANK OF AMERICA, N.A.,
as Administrative Agent and Collateral Agent
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,
CITIBANK, N.A.,
KEYBANC CAPITAL MARKETS INC.,
JPMORGAN CHASE BANK, N.A., and
SUNTRUST ROBINSON HUMPHREY, INC.,
as Joint Lead Arrangers and Joint Book Managers,
and
TD BANK, N.A.,
U.S. BANK NATIONAL ASSOCIATION and
WELLS FARGO BANK, N.A.,
as Co-Documentation Agents
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TABLE OF CONTENTS
PAGE
ARTICLE 1
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01. Defined Terms ....................................................................................................... 2
Section 1.02. Interpretive Provisions ........................................................................................ 52
Section 1.03. Accounting Terms and Provisions ...................................................................... 53
Section 1.04. Rounding ............................................................................................................. 54
Section 1.05. Times of Day ....................................................................................................... 54
Section 1.06. Letter of Credit Amounts .................................................................................... 54
Section 1.07. Pro Forma Calculations ....................................................................................... 54
Section 1.08. Timing of Payment and Performance .................................................................. 58
Section 1.09. Currency Generally ............................................................................................. 58
Section 1.10. Exchange Rates; Currency Equivalents .............................................................. 58
Section 1.11. Additional Alternative Currencies ....................................................................... 59
Section 1.12. Cumulative Equity Credit Transactions .............................................................. 59
Section 1.13. References to Agreements, Laws, Etc ................................................................. 59
ARTICLE 2
COMMITMENTS AND CREDIT EXTENSIONS
Section 2.01. Commitments ...................................................................................................... 60
Section 2.02. Borrowings, Conversions and Continuations. ..................................................... 61
Section 2.03. Additional Provisions with Respect to Letters of Credit ..................................... 62
Section 2.04. Additional Provisions with Respect to Swingline Loans .................................... 72
Section 2.05. Repayment of Loans ............................................................................................ 75
Section 2.06. Prepayments ........................................................................................................ 75
Section 2.07. Termination or Reduction of Commitments ....................................................... 79
Section 2.08. Interest ................................................................................................................. 79
Section 2.09. Fees ...................................................................................................................... 80
Section 2.10. Computation of Interest and Fees; Retroactive Adjustments to Applicable
Percentage ........................................................................................................... 82
Section 2.11. Payments Generally; Administrative Agent’s Clawback .................................... 83
Section 2.12. Sharing of Payments by Lenders ......................................................................... 85
Section 2.13. Evidence of Debt ................................................................................................. 86
Section 2.14. [Reserved] ........................................................................................................... 86
Section 2.15. [Reserved] ........................................................................................................... 86
Section 2.16. Cash Collateral .................................................................................................... 86
Section 2.17. Defaulting Lenders .............................................................................................. 88
Section 2.18. Incremental Facilities .......................................................................................... 90
Section 2.19. Amend and Extend Transactions ......................................................................... 95
Section 2.20. Refinancing Facilities .......................................................................................... 96
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ARTICLE 3
TAXES, YIELD PROTECTION AND ILLEGALITY
Section 3.01. Taxes ................................................................................................................. 101
Section 3.02. Illegality ............................................................................................................. 106
Section 3.03. Inability to Determine Rates .............................................................................. 107
Section 3.04. Increased Cost; Capital Adequacy .................................................................... 107
Section 3.05. Compensation for Losses .................................................................................. 109
Section 3.06. Mitigation Obligations; Replacement of Lenders ............................................. 110
Section 3.07. Survival Losses .................................................................................................. 111
ARTICLE 4
GUARANTY
Section 4.01. The Guaranty ..................................................................................................... 111
Section 4.02. Obligations Unconditional ................................................................................ 112
Section 4.03. Reinstatement .................................................................................................... 113
Section 4.04. Certain Waivers ................................................................................................. 113
Section 4.05. Remedies ........................................................................................................... 113
Section 4.06. Rights of Contribution ....................................................................................... 114
Section 4.07. Guaranty of Payment; Continuing Guarantee ................................................... 114
Section 4.08. Keepwell ............................................................................................................ 114
Section 4.09. Release of Guarantors ....................................................................................... 114
ARTICLE 5
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
Section 5.01. Conditions to the Closing Date ......................................................................... 115
Section 5.02. Conditions to all Credit Extensions after the Closing Date............................... 118
ARTICLE 6
REPRESENTATIONS AND WARRANTIES
Section 6.01. Existence, Qualification and Power .................................................................. 119
Section 6.02. Authorization; No Contravention ...................................................................... 119
Section 6.03. Governmental Authorization; Other Consents .................................................. 119
Section 6.04. Binding Effect ................................................................................................... 120
Section 6.05. Financial Statements .......................................................................................... 120
Section 6.06. No Material Adverse Effect .............................................................................. 120
Section 6.07. Litigation ........................................................................................................... 120
Section 6.08. Labor Matters .................................................................................................... 120
Section 6.09. Ownership of Property; Liens ........................................................................... 120
Section 6.10. Environmental Matters ...................................................................................... 121
Section 6.11. [Reserved] ......................................................................................................... 121
Section 6.12. Taxes ................................................................................................................. 121
Section 6.13. ERISA Compliance ........................................................................................... 121
Section 6.14. Subsidiaries ....................................................................................................... 122
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Section 6.15. Margin Regulations; Investment Company Act ................................................ 122
Section 6.16. Disclosure .......................................................................................................... 122
Section 6.17. Compliance with Laws ...................................................................................... 123
Section 6.18. Collateral Documents ........................................................................................ 123
Section 6.19. Intellectual Property .......................................................................................... 123
Section 6.20. Solvency ............................................................................................................ 124
Section 6.21. Patriot Act; Sanctioned Persons ........................................................................ 124
Section 6.22. EEA Financial Institutions ................................................................................ 124
ARTICLE 7
AFFIRMATIVE COVENANTS
Section 7.01. Financial Statements .......................................................................................... 125
Section 7.02. Certificates; Other Information ......................................................................... 126
Section 7.03. Notification ........................................................................................................ 127
Section 7.04. Payment of Taxes .............................................................................................. 128
Section 7.05. Preservation of Existence, Etc ........................................................................... 128
Section 7.06. Maintenance of Properties ................................................................................. 128
Section 7.07. Maintenance of Insurance ................................................................................. 129
Section 7.08. Compliance with Laws; Environmental Laws .................................................. 129
Section 7.09. Books and Records ............................................................................................ 129
Section 7.10. Inspection Rights ............................................................................................... 129
Section 7.11. Use of Proceeds ................................................................................................. 130
Section 7.12. Joinder of Subsidiaries as Guarantors ............................................................... 130
Section 7.13. Further Assurances ............................................................................................ 132
Section 7.14. Designation of Subsidiaries ............................................................................... 132
Section 7.15. Post-Closing Obligations ................................................................................... 132
ARTICLE 8
NEGATIVE COVENANTS
Section 8.01. Liens .................................................................................................................. 132
Section 8.02. Investments ........................................................................................................ 136
Section 8.03. Indebtedness ...................................................................................................... 138
Section 8.04. Mergers and Dissolutions .................................................................................. 143
Section 8.05. Dispositions ....................................................................................................... 144
Section 8.06. Restricted Payments .......................................................................................... 146
Section 8.07. Change in Nature of Business ........................................................................... 147
Section 8.08. Change in Fiscal Year ....................................................................................... 147
Section 8.09. Transactions with Affiliates .............................................................................. 147
Section 8.10. [Reserved] ......................................................................................................... 148
Section 8.11. Financial Covenants .......................................................................................... 148
Section 8.12. Prepayments etc. of Indebtedness ..................................................................... 149
Section 8.13. Burdensome Agreements .................................................................................. 149
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ARTICLE 9
EVENTS OF DEFAULT AND REMEDIES
Section 9.01. Events of Default ............................................................................................... 150
Section 9.02. Remedies Upon Event of Default ...................................................................... 153
Section 9.03. Application of Funds ......................................................................................... 153
ARTICLE 10
ADMINISTRATIVE AGENT
Section 10.01. Appointment and Authorization of Administrative Agent ................................ 154
Section 10.02. Rights as a Lender ............................................................................................. 155
Section 10.03. Exculpatory Provisions ...................................................................................... 155
Section 10.04. Reliance by Administrative Agent .................................................................... 156
Section 10.05. Delegation of Duties .......................................................................................... 157
Section 10.06. Resignation of the Administrative Agent .......................................................... 157
Section 10.07. Non-Reliance on Administrative Agent and Other Lenders ............................. 158
Section 10.08. No Other Duties ................................................................................................. 158
Section 10.09. Administrative Agent May File Proofs of Claim; Credit Bidding .................... 158
Section 10.10. Collateral and Guaranty Matters ....................................................................... 160
Section 10.11. Swap Contracts and Treasury Management Agreements .................................. 161
ARTICLE 11
MISCELLANEOUS
Section 11.01. Amendments, Etc .............................................................................................. 161
Section 11.02. Notices; Effectiveness; Electronic Communications ........................................ 165
Section 11.03. No Waiver; Cumulative Remedies; Enforcement ............................................. 167
Section 11.04. Expenses; Indemnity; Damage Waiver ............................................................. 168
Section 11.05. Payments Set Aside ........................................................................................... 171
Section 11.06. Successors and Assigns ..................................................................................... 171
Section 11.07. Treatment of Certain Information; Confidentiality ........................................... 178
Section 11.08. Right of Setoff ................................................................................................... 179
Section 11.09. Interest Rate Limitation ..................................................................................... 180
Section 11.10. Counterparts; Integration ................................................................................... 180
Section 11.11. Survival of Representations and Warranties ..................................................... 180
Section 11.12. Severability ........................................................................................................ 180
Section 11.13. Replacement of Lenders .................................................................................... 181
Section 11.14. Governing Law; Jurisdiction; Etc ...................................................................... 182
Section 11.15. Waiver of Jury Trial .......................................................................................... 183
Section 11.16. USA Patriot Act Notice ..................................................................................... 183
Section 11.17. Termination ....................................................................................................... 183
Section 11.18. No Advisory or Fiduciary Responsibility ......................................................... 184
Section 11.19. Electronic Execution ......................................................................................... 184
Section 11.20. Acknowledgment and Consent to Bail-In of EEA Financial Institutions ......... 185
Section 11.21. Judgment Currency ............................................................................................ 185
v
SCHEDULES
Schedule I Guarantors
Schedule 2.01 Lenders and Commitments
Schedule 2.03 Existing Letters of Credit
Schedule 6.14 Subsidiaries
Schedule 7.15 Post-Closing Obligations
Schedule 8.01 Existing Liens
Schedule 8.02 Existing Investments
Schedule 8.03 Existing Indebtedness
Schedule 8.09 Transactions with Affiliates
Schedule 8.13 Burdensome Agreements
Schedule 11.02 Notice Addresses
EXHIBITS
Exhibit 1.01-1 Form of Perfection Certificate
Exhibit 1.01-2 Form of Security Agreement
Exhibit 1.01-3 Form of Intercompany Note
Exhibit 2.02 Form of Loan Notice
Exhibit 2.13-1 Form of Revolving Credit Note
Exhibit 2.13-2 Form of Swingline Note
Exhibit 2.13-3 Form of Term Note
Exhibit 5.01(j) Form of Solvency Certificate
Exhibit 7.02(a) Form of Compliance Certificate
Exhibit 7.12 Form of Joinder Agreement
Exhibit 11.06(b) Form of Assignment and Assumption
Exhibit 11.06(i) Dutch Auction Procedures
CREDIT AGREEMENT
This CREDIT AGREEMENT (the “Credit Agreement” or the “Agreement”) is entered
into as of May 2, 2016 and amended as of June 27, 2017, among MERCURY SYSTEMS, INC.,
a Massachusetts corporation (the “Borrower”), the Guarantors identified herein, each lender
from time to time party hereto (collectively, the “Lenders” and individually, a “Lender”) and
BANK OF AMERICA, N.A., as Administrative Agent, Collateral Agent, Swingline Lender and
L/C Issuer.
PRELIMINARY STATEMENTS
The Borrower intends to acquire Microsemi LLC – RF Integrated Solutions, a Delaware
limited liability company (the “Target”);
Pursuant to the Stock Purchase Agreement, dated as of March 23, 2016 (as amended,
restated, supplemented or otherwise modified from time to time, the “Acquisition Agreement”)
among the Borrower and Microsemi Corporation, the Borrower has agreed to acquire all of the
Capital Stock of the Target (the “Microsemi Acquisition”);
Substantially simultaneously with the consummation of the Microsemi Acquisition, the
Lenders extended credit to the Borrower in the form of (i) a term A loan facility on the Closing
Date (as this and other capitalized terms used in these preliminary statements are defined in
Section 1.01 below) in an aggregate principal amount of $200,000,000 and (ii) a revolving credit
facility with an initial aggregate principal amount of commitments of $100,000,000.
The proceeds of the term A loan facility funded on the Closing Date, together with the
proceeds of (i) Revolving Credit Loans made on the Closing Date, (iii) the Pre-Closing Equity
Offering and (iv) solely at the option of the Borrower, cash on the balance sheet, in each case,
were be used by the Borrower to (1) consummate the Refinancing, (2) finance the Microsemi
Acquisition and (3) pay Transaction Expenses in connection with the foregoing.
On the Amendment No. 1 Effective Date the Term Loans made on the Closing Date were
optionally prepaid in full pursuant to Section 2.06(a) hereof.
The Borrower has requested that the Lenders extend credit to the Borrower in the form of
an upsized revolving credit facility with an initial aggregate principal amount of commitments of
$400,000,000. The revolving credit facility will permit the issuance of one or more Letters of
Credit from time to time and the making of one or more Revolving Credit Loans and/or
Swingline Loans from time to time.
The proceeds of the revolving credit facility and the commitments hereunder made
available on the Amendment No. 1 Effective Date will be used by the Borrower for general
corporate purposes (including Acquisitions and other purposes not prohibited hereunder).
The Lenders have indicated their willingness to lend and the L/C Issuer has indicated its
willingness to issue letters of credit, in each case, on the terms and subject to the conditions set
forth herein.
2
In consideration of these premises and the mutual covenants and agreements contained
herein, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
covenant and agree as follows:
ARTICLE 1
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01. Defined Terms.
As used in this Credit Agreement, the following terms have the meanings provided below:
“Acquired Indebtedness” means, with respect to any specified Person,
(a) Indebtedness of any other Person existing at the time such other Person is
merged, consolidated or amalgamated with or into or became a Restricted Subsidiary of
such specified Person, including Indebtedness incurred in connection with, or in
contemplation of, such other Person merging, amalgamating or consolidating with or
into, or becoming a Restricted Subsidiary of, such specified Person; and
(b) Indebtedness secured by a Lien encumbering any asset acquired by such
specified Person.
“Acquisition” means the purchase or acquisition by any Person of (a) more than 50% of
the Capital Stock with ordinary voting power of another Person (including as a result of the
purchase by such Person of Capital Stock of an existing joint venture to the extent that after
giving effect thereto, such Person owns more than 50% of such Capital Stock) or (b) all or any
substantial portion of the property (other than Capital Stock) of, or a business unit, a line of
business or division of, another Person, whether or not involving a merger or consolidation with
such Person.
“Acquisition Agreement” has the meaning provided in the preliminary statements hereto.
“Acquisition Agreement Representations” means the representations made by or with
respect to the Target and its Subsidiaries in the Acquisition Agreement as are material to the
interests of the Lenders, but only to the extent that the Borrower has (or its applicable affiliate
has) the right (taking into account any applicable cure provisions), pursuant to the Acquisition
Agreement, to terminate its obligations under the Acquisition Agreement to consummate the
Microsemi Acquisition (or the right not to consummate the Microsemi Acquisition pursuant to
the Acquisition Agreement) as a result of a breach of such representations and warranties.
“Act” has the meaning provided in Section 11.16.
“Additional Lender” means, at any time, any Person that is not an existing Lender and
that agrees to provide any portion of any (a) Incremental Loans or Incremental Commitments
pursuant to an Incremental Amendment in accordance with Section 2.18 or (b) Refinancing
Facilities pursuant to a Refinancing Amendment in accordance with Section 2.20; provided that
such Additional Lender shall be (x) with respect to Incremental Term Loans, Incremental Term
Commitments or Refinancing Term Loans, an Eligible Assignee with respect to Term Loans and
3
(y) with respect to Incremental Revolving Commitments or Refinancing Revolving
Commitments, an Eligible Assignee with respect to Revolving Credit Commitments.
“Adequate Assurance” means (i) with respect to L/C Obligations, such assurance as the
L/C Issuer may reasonably require, and (ii) with respect to Swingline Loans, such assurance as
the Swingline Lender may reasonably require, in each case, that any Defaulting Lender will be
capable of honoring its obligations to fund its portion of L/C Obligations and Swingline Loans,
as appropriate, and participation interests therein, including existing and future obligations
hereunder and under the other Credit Documents. Adequate Assurance may be in the form of
cash collateral, posting of letters of credit or other arrangement, in each case in form, amount and
other respects reasonable satisfactory to the L/C Issuer or the Swingline Lender, as applicable, in
their discretion.
“Administrative Agent” means Bank of America in its capacity as administrative agent
under any of the Credit Documents, or any successor administrative agent.
“Administrative Agent’s Office” means the Administrative Agent’s address and, as
appropriate, account as set forth on Schedule 11.02 (as may be updated from time to time), or
such other address or account as the Administrative Agent may from time to time notify the
Borrower and the Lenders.
“Administrative Questionnaire” means an administrative questionnaire for the Lenders
in a form supplied by the Administrative Agent.
“Affiliate” means, with respect to any Person, another Person that directly, or indirectly
through one or more intermediaries, Controls or is Controlled by or is under common Control
with the Person specified.
“Agents” means, collectively, the Administrative Agent, the Collateral Agent and the
Arrangers.
“Agent-Related Distress Event” means, with respect to the Administrative Agent or any
Person that directly or indirectly Controls the Administrative Agent (each, a “Distressed Agent-
Related Person”), a voluntary or involuntary case with respect to such Distressed Agent-Related
Person under any Debtor Relief Law, or a custodian, conservator, receiver or similar official is
appointed for such Distressed Agent-Related Person or any substantial part of such Distressed
Agent-Related Person’s assets, or such Distressed Agent-Related Person makes a general
assignment for the benefit of creditors or is otherwise adjudicated as, or determined by any
Governmental Authority having regulatory authority over such Distressed Agent-Related Person
to be, insolvent or bankrupt; provided that an Agent-Related Distress Event shall not be deemed
to have occurred solely by virtue of the ownership or acquisition of any Capital Stock in the
Administrative Agent or any Person that directly or indirectly Controls the Administrative Agent
by a Governmental Authority or an instrumentality thereof.
“Aggregate Commitment Percentage” means (a) in respect of the Term Loan Facility,
with respect to any Term Lender at any time, the percentage (carried out to the ninth decimal
place) of the Term Loan Facility represented by the principal amount of such Term Lender’s
Term Loans at such time and (b) in respect of the Revolving Credit Facility, with respect to any
4
Revolving Credit Lender at any time, the percentage (carried out to the ninth decimal place) of
the Revolving Credit Facility represented by such Revolving Credit Lender’s Revolving Credit
Commitment at such time. If the Revolving Credit Commitments have been terminated pursuant
to Section 9.02 or have expired, then the Aggregate Commitment Percentage of each Revolving
Credit Lender in respect of the Revolving Credit Facility shall be determined based on the
Aggregate Commitment Percentage of such Revolving Credit Lender in respect of the Revolving
Credit Facility most recently in effect, giving effect to any subsequent assignments. The initial
Aggregate Commitment Percentage of each Lender, as of the Amendment No. 1 Effective Date
is set forth opposite the name of such Lender on Schedule 2.01 to Amendment No. 1 or in the
Assignment and Assumption pursuant to which such Lender becomes a party hereto, as
applicable.
“Aggregate Commitments” means the Commitments of all Lenders.
“Aggregate Revolving Credit Commitments” means the Revolving Credit
Commitments of all Revolving Credit Lenders.
“Aggregate Revolving Credit Committed Amount” has the meaning provided in
Section 2.01(b).
“Agreement” has the meaning provided in the introductory paragraph hereto.
“Agreement Currency” has the meaning specified in Section 11.21.
“Alternative Currency” means Canadian Dollars, Euros, Francs, Sterling, Rupees and
Yen, together with each other currency (other than Dollars) that is approved in accordance with
Section 1.11.
“Alternative Currency Equivalent” means, at any time, with respect to any amount
denominated in Dollars, the equivalent amount thereof in the applicable Alternative Currency as
determined by the Administrative Agent or the L/C Issuer, as the case may be, at such time on
the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the
purchase of such Alternative Currency with Dollars.
“Amendment No. 1” shall mean Amendment No. 1 to this Credit Agreement dated as of
June 27, 2017.
“Amendment No. 1 Effective Date” shall mean June 27, 2017.
“Annual Financial Statements” has the meaning specified in the definition of Historical
Financial Statements.
“Applicable Percentage” means in respect of the Revolving Credit Facility, the
following percentages per annum, based on the Consolidated Total Net Leverage Ratio as set
forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to
Section 7.02(a); provided that from the Amendment No. 1 Effective Date until the receipt by the
Administrative Agent of the Compliance Certificate with respect to the first full fiscal quarter of
5
the Borrower following the Amendment No. 1 Effective Date, Pricing Level I shall apply to the
Revolving Credit Loans, the Letter of Credit Fee and the Commitment Fee:
Applicable
Percentage for
Pricing
Level
Consolidated Total
Net Leverage Ratio
Eurocurrency
Rate Loans
Base
Rate
Loans
Letter
of
Credit
Fee
Commitment
Fee
I Less than or equal to
1.00:1.00…………….. 1.375% 0.375% 1.375% 0.25%
II Greater than 1.00:1.00 but
less than or equal to
1.50:1.00 ................................... 1.50% 0.50% 1.50% 0.25%
III Greater than 1.50:1.00 but
less than or equal to
2.00:1.00 ................................... 1.50% 0.50% 1.50% 0.30%
IV Greater than 2.00:1.00 but
less than or equal to
2.50:1.00 ................................... 1.75% 0.75% 1.75% 0.35%
V Greater than 2.50:1.00 .................... 2.25% 1.25% 2.25% 0.40%
Any increase or decrease in the Applicable Percentage resulting from a change in the
Consolidated Total Net Leverage Ratio shall become effective on the date a Compliance
Certificate is delivered pursuant to Section 7.02(a); provided, however, that if (i) a Compliance
Certificate is not delivered when due in accordance therewith, then Pricing Level V shall apply
as of the first Business Day after the date on which such Compliance Certificate was required to
have been delivered until the first Business Day after the date on which such Compliance
Certificate was delivered and (ii) at the option of the Administrative Agent or the Required
Lenders, as of the first Business Day after (x) in the case of an Event of Default under Section
9.01(a) that has occurred and is continuing, the delivery of written notice to the Borrower or (y)
in the case of an Event of Default under Section 9.01(f) that has occurred and is continuing, the
date such Event of Default shall have occurred, then in either case Pricing Level V shall apply,
and shall continue to so apply to but excluding the date on which such Event of Default is cured,
waived or no longer continuing (and thereafter the Pricing Level otherwise determined in
accordance with this definition shall apply).
Notwithstanding the foregoing, (v) the Applicable Percentage in respect of any Class of
Extended Revolving Commitments or any Extended Term Loans or Revolving Credit Loans or
Swingline Loan made pursuant to any Extended Revolving Commitments shall be the applicable
percentages per annum set forth in the relevant Extension Amendment, (w) the Applicable
Percentage in respect of any Class of Incremental Commitments, and Class of Incremental Term
Loans or any Class of Incremental Revolving Loans shall be the applicable percentages per
annum set forth in the relevant Incremental Amendment, (x) the Applicable Percentage in respect
of any Class of Replacement Term Loans shall be the applicable percentages per annum set forth
in the relevant agreement, (y) the Applicable Percentage in respect of any Class of Refinancing
6
Revolving Commitments, any Class of Refinancing Revolving Loans or any Class of
Refinancing Term Loans shall be the applicable percentages per annum set forth in the relevant
Refinancing Amendment and (z) in the case of any Term Loans and any Class of Incremental
Term Loans, the Applicable Percentage shall be increased as, and to the extent, necessary to
comply with the provisions of Section 2.18.
“Applicable Time” means, with respect to any payments in any Alternative Currency,
the local time in the place of settlement for such Alternative Currency as may be reasonably
determined by the L/C Issuer and notified to the Borrower at the time such Letter of Credit is
issued to be necessary for timely settlement on the relevant date in accordance with normal
banking procedures in the place of payment.
“Appropriate Lender” means, at any time, (a) with respect to either the Term Loan
Facility or the Revolving Credit Facility, a Lender that has a Commitment with respect to such
Facility or holds a Term Loan or a Revolving Credit Loan, respectively, at such time, (b) with
respect to the L/C Sublimit, (i) the L/C Issuer and (ii) if any Letters of Credit have been issued
pursuant to Section 2.03(a), the Revolving Credit Lenders and (c) with respect to the Swingline
Sublimit, (i) the Swingline Lender and (ii) if any Swingline Loans are outstanding pursuant to
Section 2.04(a), the Revolving Credit Lenders.
“Approved Bank” means (a) any Lender, (b) any domestic commercial bank of
recognized standing having combined capital and surplus in excess of $250,000,000 or any
foreign bank of recognized standing having capital and surplus in excess of $100,000,000 (or the
Dollar Equivalent as of the date of determination) or (c) any bank whose short-term commercial
paper rating from S&P is at least A-2 or the equivalent thereof or from Moody’s is at least P-2 or
the equivalent thereof.
“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 or manages a
Lender.
“Arrangers” means MLPF&S (or any other registered broker-dealer wholly-owned by
Bank of America Corporation to which all or substantially all of Bank of America Corporation’s
or any of its subsidiaries’ investment banking, commercial lending services or related businesses
may be transferred following the date of this Agreement), Citibank, N.A., KeyBanc Capital
Markets Inc., JPMorgan Chase Bank, N.A. and SunTrust Robinson Humphrey, Inc., in their
respective capacities as joint lead arrangers and joint book managers.
“Assignees” has the meaning set forth in Section 11.06(b).
“Assignee Group” means two or more Eligible Assignees that are Affiliates of one
another or two or more Approved Funds managed by the same investment advisor.
“Assignment and Assumption” means an assignment and assumption entered into by a
Lender and an Eligible Assignee (with the consent of any party whose consent is required by
Section 11.06 and accepted by the Administrative Agent), in substantially the form of Exhibit
11.06(b) or any other form approved by the Administrative Agent.
7
“Attributable Indebtedness” means, subject to the second sentence of Section 1.03(a),
on any date, in respect of any Capitalized Lease of any Person, the capitalized amount thereof
that would appear on a balance sheet of such Person prepared as of such date in accordance with
GAAP.
“Auction” has the meaning provided in Section 11.06(i).
“Auction Manager” means the Administrative Agent.
“Auction Procedures” means the Dutch Auction Procedures set forth on Exhibit 11.06(i).
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the
applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
“Bail-In Legislation” means, with respect to any EEA Member Country implementing
Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the
European Union, the implementing law for such EEA Member Country from time to time which
is described in the EU Bail-In Legislation Schedule.
“Bank of America” means Bank of America, N.A., together with its successors.
“Base Rate” means for any day a fluctuating rate per annum equal to the highest of
(a) the Federal Funds Rate plus one-half of one percent (0.5%), (b) the Prime Rate and (c) except
during a Eurocurrency Unavailability Period, the Eurocurrency Rate plus one percent (1.00%)
and if the Base Rate shall be less than 1.00%, such rate shall be deemed to be 1.00% for purposes
of this Agreement.
“Base Rate Loan” means a Revolving Credit Loan or a Term Loan that bears interest
based on the Base Rate.
“Borrower” has the meaning provided in the introductory paragraph hereto.
“Borrower Notice” has the meaning provided in the definition of Real Estate Collateral
Requirements.
“Borrowing” means a Revolving Credit Borrowing, a Swingline Borrowing or a Term
Borrowing, as the context may require.
“Business Day” means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are in fact closed in, the State
where the Administrative Agent’s office is located, and, if such day relates to any interest rate
settings as to a Eurocurrency Rate Loan, any fundings, disbursements, settlements and payments
in respect of any such Eurocurrency Rate Loan, or any other dealings to be carried out pursuant
to this Credit Agreement in respect of any such Eurocurrency Rate Loan, means any such day on
which dealings in deposits in Dollars are conducted by and between banks in the London
interbank eurodollar market.
“Canadian Dollars” means the lawful currency of Canada.
8
“Capital Stock” means (a) in the case of a corporation, capital stock, (b) in the case of an
association or business entity, any and all shares, interests, participations, rights or other
equivalents (however designated) of capital stock, (c) in the case of a partnership, partnership
interests (whether general or limited), (d) in the case of a limited liability company, membership
interests and (e) any other interest or participation that confers on a Person the right to receive a
share of the profits and losses of, or distributions of assets of, the issuing Person.
“Capitalized Leases” means, subject to the second sentence of the first paragraph of
Section 1.03, all leases that have been or should be, in accordance with GAAP, recorded as
capitalized leases.
“Capitalized Software Expenditures” means, for any period, the aggregate of all
expenditures (whether paid in cash or accrued as liabilities) by the Borrower and the Restricted
Subsidiaries during such period in respect of purchased software or internally developed
software and software enhancements that, in conformity with GAAP, are or are required to be
reflected as capitalized costs on the consolidated balance sheet of the Borrower and the
Restricted Subsidiaries.
“Cash Collateral” has the meaning provided in the definition of Cash Collateralize.
“Cash Collateralize” means to pledge and deposit with or deliver to the Administrative
Agent, for the benefit of the Administrative Agent, the L/C Issuer or the Swingline Lender (as
applicable) and the Revolving Credit Lenders, as collateral for L/C Obligations, Obligations in
respect of Swingline Loans, or obligations of Revolving Credit Lenders to fund participations in
respect of either thereof (as the context may require), cash or deposit account balances or, if the
L/C Issuer or the Swingline Lender benefitting from such collateral shall agree in its sole
discretion, other credit support (“Cash Collateral”), in each case pursuant to documentation in
form and substance reasonable satisfactory to (a) the Administrative Agent and (b) the L/C Issuer
or the Swingline Lender (as applicable). Derivatives of such term have corresponding meanings.
“Cash Equivalents” means to the extent owned by the Borrower or any Restricted
Subsidiary: (a) securities issued or directly and fully guaranteed or insured by the United States
or any agency or instrumentality thereof (provided that the full faith and credit of the United
States is pledged in support thereof) having maturities of not more than twenty four (24) months
from the date of acquisition, (b) time deposits or eurodollar time deposits with, insured
certificates of deposit, bankers’ acceptances or overnight bank deposits of, or letters of credit
issued by, any Approved Bank, in each case with maturities of not more than twenty four (24)
months from the date of acquisition, (c) commercial paper and variable or fixed rate notes issued
by any Approved Bank (or by the parent company thereof) or any variable rate notes issued by,
or guaranteed by, any domestic corporation rated A-2 (or the equivalent thereof) or better by
S&P or P-2 (or the equivalent thereof) or better by Moody’s, and maturing within twelve months
of the date of acquisition, (d) repurchase agreements entered into by any Person with a bank or
trust company (including any of the Lenders) or recognized securities dealer having capital and
surplus in excess of $250,000,000 for direct obligations issued by or fully guaranteed by the
United States in which such Person shall have a perfected first priority security interest (subject
to no other Liens) and having, on the date of purchase thereof, a fair market value of at least one
hundred percent (100%) of the amount of the repurchase obligations, (e) Investments (classified
9
in accordance with GAAP as current assets) in money market investment programs registered
under the Investment Company Act of 1940 that are administered by reputable financial
institutions having capital of at least $250,000,000 and the portfolios of which are limited to
Investments of the character described in the foregoing subclauses hereof, (f) securities with
average maturities of twenty four (24) months or less from the date of acquisition issued or fully
guaranteed (1) by any state, commonwealth or territory of the United States, by any political
subdivision or taxing authority of any such state, commonwealth or territory or by (2) any
foreign government, in each case, having an investment grade rating from either S&P or
Moody’s (or the equivalent thereof), (g) Investments (other than in structured investment
vehicles and structured financing transactions) with average maturities of twelve (12) months or
less from the date of acquisition in money market funds rated AAA- (or the equivalent thereof)
or better by S&P or Aaa3 (or the equivalent thereof) or better by Moody’s, (h) other short-term
investments utilized by Foreign Subsidiaries in accordance with normal investment practices for
cash management in investments of a type analogous to the foregoing and local currencies held
by them from time to time in the ordinary course of business and not for speculation, (i)
securities with maturities of twelve (12) months or less from the date of acquisition backed by
standby letters of credit issued by an Approved Bank and (j) investment funds investing at least
90% of their assets in securities of the types described in clauses (a) through (i) above.
“CFC” means a “controlled foreign corporation” within the meaning of Section 957 of
the Code.
“CFC Holdco” means any Domestic Subsidiary that has no material assets other than
Capital Stock (or Capital Stock and indebtedness) of one or more Foreign Subsidiaries that are
CFCs or any other Domestic Subsidiary that itself is a CFC Holdco.
“Change in Law” means the occurrence, after the Closing Date, of any of the following:
(a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law,
rule, regulation or treaty or in the administration, interpretation, implementation or application
thereof by any Governmental Authority or (c) the making or issuance of any request, rule,
guideline or directive (whether or not having the force of law) by any Governmental Authority;
provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street
Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder
or issued in connection therewith 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,” regardless of the
date enacted, adopted or issued; provided that a Lender shall be entitled to compensation with
respect to any such adoption taking effect, making or issuance becoming effective after the date
of this Agreement only if it is the applicable Lender’s general policy or practice to demand
compensation in similar circumstances under comparable provisions of other financing
agreements.
“Change of Control” means the occurrence of any of the following:
(a) any person or persons constituting a “group” (as such term is used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended, but
10
excluding any employee benefit plan of such person and its subsidiaries, and any person
or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any
such plan), becomes the “beneficial owner” (as defined in Rules 13(d)-3 and 13(d)-5
under such Act), directly or indirectly, of equity interests representing more than thirty-
five (35%) of the aggregate ordinary voting power represented by the issued and
outstanding equity interests of the Borrower;
(b) the first day on which a majority of the members of the Board of Directors
of the Borrower are not Continuing Directors; or
(c) a “change of control” (or similar event) shall occur in any document
pertaining to the Incremental Equivalent Debt, Refinancing Equivalent Debt, Ratio Debt
or any refinancing thereof; provided that such debt is in an aggregate outstanding
principal amount in excess of $15,000,000.
“Class” means (i) with respect to Commitments or Loans, those of such Commitments or
Loans that have the same terms and conditions (without regard to differences in the Type of
Loan, Interest Period, upfront fees, OID or similar fees paid or payable in connection with such
Commitments or Loans, or differences in tax treatment (e.g., “fungibility”)); provided that such
Commitments or Loans may be designated in writing by the Borrower and Lenders holding such
Commitments or Loans as a separate Class from other Commitments or Loans that have the
same terms and conditions and (ii) with respect to Lenders, those of such Lenders that have
Commitments or Loans of a particular Class.
“Closing Date” means May 2, 2016.
“Collateral” means the collateral identified in, and at any time covered by, the Collateral
Documents.
“Collateral Agent” means Bank of America, in its capacity as collateral agent under any
of the Credit Documents, or any successor collateral agent.
“Collateral and Guarantee Requirement” means, at any time, the requirement that:
(a) the Administrative Agent shall have received each Collateral Document
required to be delivered (i) on the Closing Date, pursuant to Section 5.01(a) and (ii) at
such time as may be designated therein, pursuant to the Collateral Documents,
Section 7.12, 7.13 or 7.15, subject, in each case, to the limitations and exceptions of this
Credit Agreement and the Collateral Documents, duly executed by each Credit Party
thereto;
(b) all Obligations (other than, with respect to any Guarantor, any Excluded
Swap Obligations of such Guarantor) shall have been unconditionally guaranteed by each
Restricted Subsidiary of the Borrower that is a wholly owned Material Domestic
Subsidiary (other than any Excluded Subsidiary) including those that are listed on
Schedule I hereto (each, a “Guarantor”);
11
(c) the Obligations and the Guaranty shall have been secured by a first-
priority security interest (subject to Permitted Liens) in (i) all Capital Stock of each
Restricted Subsidiary that is a Domestic Subsidiary (other than a Domestic Subsidiary
described in the following clause (ii)(A)) that is directly owned by the Borrower or any
Guarantor and (iii) 65% of the issued and outstanding Capital Stock directly owned by
the Borrower or any Guarantor of (A) each Restricted Subsidiary that is a CFC Holdco
and (B) each Restricted Subsidiary that is a Foreign Subsidiary; and
(d) except to the extent otherwise provided hereunder, or under any Collateral
Document, the Obligations and the Guaranty shall, subject to Permitted Liens, have been
secured by a perfected first-priority security interest (to the extent such security interest
may be perfected by delivering certificated securities or instruments, filing financing
statements under the Uniform Commercial Code or making any necessary filings with the
United States Patent and Trademark Office or United States Copyright Office or to the
extent required in the Security Agreement or this Agreement) in substantially all tangible
and intangible assets of the Borrower and each Guarantor (including accounts receivable,
inventory, equipment, investment property, contract rights, applications and registrations
of intellectual property filed in the United States, other general intangibles, intercompany
notes and proceeds of the foregoing), in each case, with the priority required by the
Collateral Documents, and in each case subject to exceptions and limitations otherwise
set forth in this Credit Agreement and the Collateral Documents;
provided, however, that the foregoing definition shall not require and the Credit Documents shall
not contain any requirements as to the creation or perfection of pledges of, security interests in,
or taking other actions with respect to any Excluded Property.
The Administrative Agent may grant extensions of time for the perfection of security
interests in particular assets and the delivery of assets (including extensions beyond the Closing
Date for the perfection of security interests in the assets of the Credit Parties on such date) where
it reasonably determines, in consultation with the Borrower, that perfection cannot be
accomplished without undue effort or expense by the time or times at which it would otherwise
be required by this Credit Agreement or the Collateral Documents.
No actions in any non-U.S. jurisdiction or required by the Laws of any non-U.S.
jurisdiction shall be required in order to create any security interests in assets located or titled
outside of the U.S. or to perfect such security interests, including any intellectual property
registered in any non-U.S. jurisdiction (it being understood that there shall be no security
agreements or pledge agreements governed under the Laws of any non-U.S. jurisdiction). No
actions shall be required with respect to Collateral requiring perfection through control
agreements or perfection by “control” (as defined in the UCC) (including deposit accounts or
other bank accounts or securities accounts) or possession, other than in respect of (i) certificated
Capital Stock of wholly owned Restricted Subsidiaries directly owned by the Borrower or by any
Guarantor otherwise required to be pledged pursuant to the provisions of clause (c) of this
definition of “Collateral and Guarantee Requirement” and not otherwise constituting Excluded
Property and (ii) Pledged Debt (as defined in the Security Agreement) to the extent required to
be delivered to the Administrative Agent pursuant to the terms of the Security Agreement.
12
“Collateral Documents” means the Security Agreement, the Intellectual Property
Security Agreements and any other documents executed and delivered by the Credit Parties in
order to grant to the Collateral Agent a security interest in the Collateral as security for the
Obligations.
“Commitment” means a Term Commitment or a Revolving Credit Commitment, as the
context may require.
“Commitment Fee” has the meaning set forth in Section 2.09(a)(i).
“Commitment Period” means, in respect of the Revolving Credit Facility, the period
from and including the Amendment No. 1 Effective Date to the earlier of (a)(i) in the case of
Revolving Credit Loans and Swingline Loans, the Revolving Termination Date or (ii) in the case
of the Letters of Credit, the L/C Expiration Date, or (b) the date on which the Revolving Credit
Commitments shall have been terminated as provided herein.
“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.),
as amended from time to time, and any successor statute.
“Compliance Certificate” means a certificate substantially in the form of Exhibit 7.02(a).
“Connection Income Taxes” means Taxes as described in clause (a)(ii) of “Excluded
Taxes” that are imposed on or measured by net income (however denominated) or that are
franchise Taxes or branch profits Taxes.
“Consolidated Cash Interest Coverage Ratio” means, with respect to any Test Period,
the ratio of (a) Consolidated EBITDA for such Test Period to (b) Consolidated Interest Expense
for such Test Period.
“Consolidated EBITDA” means, for any period, the Consolidated Net Income for such
period, plus (a) without duplication, and except with respect to clauses (vii) and (ix) below, to
the extent deducted (and not added back or excluded) in arriving at such Consolidated Net
Income, the sum of the following amounts for such period with respect to the Borrower and its
Restricted Subsidiaries:
(i) total interest expense determined in accordance with GAAP and, to the
extent not reflected in such total interest expense, any expense or loss on hedging
obligations or other derivative instruments entered into for the purpose of hedging
interest rate risk and not for speculative purposes, net of interest income and gains on
such hedging obligations, and costs of surety bonds in connection with financing
activities (whether amortized or immediately expensed),
(ii) provision for taxes based on income, profits or capital gains of the
Borrower and the Restricted Subsidiaries, including federal, state, local, franchise and
similar taxes and foreign withholding taxes paid or accrued during such period including
penalties and interest related to such taxes or arising from any tax examinations and the
net tax expense associated with any adjustments made pursuant to the definition of
“Consolidated Net Income,”
13
(iii) depreciation and amortization (including amortization of intangible assets,
deferred financing fees and Capitalized Software Expenditures) for such period,
(iv) [reserved],
(v) (A) restructuring charges or reserves, severance, relocation costs or
expenses, integration costs, transition costs, pre-opening, opening, closing and
consolidation costs for facilities and one-time compensation charges (including signing,
retention and completion bonuses), other costs relating to the closure of facilities or
impairment of facilities, costs incurred in connection with acquisitions, other business
optimization expenses (including costs and expenses relating to business optimization
programs and new systems design, retention charges, systems establishment costs
(including information technology systems) and implementation costs), production line
start-up costs, severance and other restructuring charges representing cash items
(including restructuring costs related to acquisitions and to closure of facilities, and
excess pension charges) and (B) earn-out and contingent consideration obligations
(including to the extent accounted for as bonuses, compensation or otherwise) and
adjustments thereof and purchase price adjustments, in each case in connection with
acquisitions, and (C) Transaction Expenses.
(vi) the amount of any expense or reduction of Consolidated Net Income
consisting of Restricted Subsidiary income attributable to minority interests or non-
controlling interests of third parties in any non-wholly owned Restricted Subsidiary,
(vii) (A) cost savings, operating expense reductions and synergies related to the
Transactions that are reasonably identifiable and factually supportable and projected by
the Borrower in good faith to result from actions that have been taken or with respect to
which substantial steps have been taken or are expected to be taken (in the good faith
determination of the Borrower) within 12 months after the Closing Date (calculated on a
pro forma basis as though such cost savings, operating expense reductions and synergies
had been realized on the first day of such period and as if such cost savings, operating
expense reductions and synergies were realized during the entirety of such period), net of
the amount of actual benefits realized during such period from such actions; and (B) cost
savings, operating expense reductions and synergies related to mergers and other business
combinations, acquisitions, divestitures, restructurings, cost savings initiatives and other
similar initiatives and actions that are reasonably identifiable and factually supportable
and projected by the Borrower in good faith to result from actions that have been taken or
with respect to which substantial steps have been taken or are expected to be taken (in the
good faith determination of the Borrower) within 12 months after a merger or other
business combination, acquisition or divestiture is consummated or any other
restructuring, cost savings initiative or other initiative or action (calculated on a pro
forma basis as though such cost savings, operating expense reductions and synergies had
been realized on the first day of such period and as if such cost savings, operating
expense reductions and synergies were realized during the entirety of such period), net of
the amount of actual benefits realized during such period from such actions; provided that
no cost savings, operating expense reductions and synergies shall be added back pursuant
to this clause (vii) to the extent duplicative of any expenses or charges otherwise added
14
back to Consolidated EBITDA, whether through a pro forma adjustment or otherwise, for
such period; provided, further, that the amount of adjustments made pursuant to clause
(B) above for any Test Period, when added to the aggregate amount of add backs made
pursuant to Section 1.07(c), shall not exceed 15% of Consolidated EBITDA (prior to
giving effect to such clause (B) or Section 1.07(c) but, for the avoidance of doubt, after
giving effect to other pro forma adjustments) for such Test Period,
(viii) any net loss from disposed, abandoned or discontinued operations
(excluding held-for-sale discontinued operations until actually disposed of),
(ix) cash receipts (or any netting arrangements resulting in reduced cash
expenditures) not representing Consolidated EBITDA or Consolidated Net Income in any
period to the extent non-cash gains relating to such income or netting arrangement were
deducted in the calculation of Consolidated EBITDA pursuant to paragraph (b) below for
any previous period and not added back,
(x) non-cash expenses, charges and losses (including reserves, impairment
charges or asset write-offs, write-offs of deferred financing fees, losses from investments
recorded using the equity method, stock-based awards compensation expense), in each
case other than (A) any non-cash charge representing amortization of a prepaid cash item
that was paid and not expensed in a prior period and (B) any non-cash charge relating to
write-offs, write-downs or reserves with respect to accounts receivable in the normal
course or inventory; provided that if any non-cash charges referred to in this clause (x)
represents an accrual or reserve for potential cash items in any future period, (1) the
Borrower may elect not to add back such non-cash charge in the current period and (2) to
the extent the Borrower elects to add back such non-cash charge, the cash payment in
respect thereof in such future period shall be subtracted from Consolidated EBITDA in
such future period to such extent paid,
(xi) any fees and expenses incurred during such period (including any
premiums, make-whole or penalty payments), or any amortization thereof for such
period, in connection with any acquisition, investment, asset disposition, issuance or
repayment of debt, issuance of equity securities, refinancing transaction or amendment or
other modification of any debt instrument (in each case, including any such transaction
consummated on or prior to the Closing Date and any such transaction undertaken but not
completed) and any charges or non-recurring merger costs incurred during such period as
a result of any such transaction, in each case whether or not successful (including, for the
avoidance of doubt the effects of expensing all transaction related expenses in accordance
with FASB ASC 805 and gains or losses associated with FASB ASC 460),
(xii) any non-cash compensation charge or expense, including any such charge
or expense arising from the grants of stock appreciation or similar rights, stock options,
restricted stock or other rights or equity incentive programs or any other equity-based
compensation,
(xiii) any expenses, charges or losses that are covered by indemnification or
other reimbursement provisions in connection with any Investment, Acquisition or any
15
sale, conveyance, transfer or other disposition of assets permitted under this Credit
Agreement, to the extent actually reimbursed, or, so long as the Borrower has made a
determination that a reasonable basis exists for indemnification or reimbursement and
only to the extent that such amount is in fact indemnified or reimbursed within 365 days
of such determination (with a deduction in the applicable future period for any amount so
added back to the extent not so indemnified or reimbursed within such 365 day period),
(xiv) to the extent covered by insurance and actually reimbursed, or, so long as
the Borrower has made a determination that there exists reasonable evidence that such
amount will in fact be reimbursed by the insurer and only to the extent that such amount
is in fact reimbursed within 365 days of the date of such determination (with a deduction
in the applicable future period for any amount so added back to the extent not so
reimbursed within such 365 days), expenses, charges or losses with respect to liability or
casualty events or business interruption,
minus (b) without duplication and to the extent included in arriving at such Consolidated Net
Income, (i) non-cash gains (excluding any non-cash gain to the extent it represents the reversal of
an accrual or reserve for a potential cash item that reduced Consolidated EBITDA in any prior
period), (ii) any net income from disposed, abandoned or discontinued operations (excluding
held-for-sale discontinued operations until actually disposed of) and (iii) the amount of any
minority interest income consisting of Restricted Subsidiary losses attributable to minority
interests or non-controlling interests of third parties in any non-wholly owned Restricted
Subsidiary; provided that, for the avoidance of doubt, any gain representing the reversal of any
non-cash charge referred to in clause (a)(x)(B) above for a prior period shall be added (together
with, without duplication, any amounts received in respect thereof to the extent not increasing
Consolidated Net Income) to Consolidated EBITDA in any subsequent period to such extent so
reversed (or received);
provided, further, that:
(A) to the extent included in Consolidated Net Income, there shall be excluded
in determining Consolidated EBITDA (x) currency translation or transaction gains and
losses related to currency remeasurements of Indebtedness (including the net loss or gain
(i) resulting from Swap Contracts for currency exchange risk and (ii) resulting from
intercompany indebtedness) and (y) all other foreign currency translation or transaction
gains or losses to the extent such gains or losses are non-cash items,
(B) to the extent included in Consolidated Net Income, there shall be excluded
in determining Consolidated EBITDA for any period any adjustments resulting from the
application of FASB ASC 815 and International Accounting Standard No. 39 and their
respective related pronouncements and interpretations,
(C) to the extent included in Consolidated Net Income, there shall be excluded
in determining Consolidated EBITDA for any period any income (loss or expenses) for
such period attributable to the early extinguishment of (i) Indebtedness, (ii) obligations
under any Swap Contracts or (iii) other derivative instruments.
16
For the avoidance of doubt, Consolidated EBITDA shall be calculated, including pro
forma adjustments, in accordance with Section 1.07.
“Consolidated Interest Expense” means, for any period, the cash interest expense
(including that attributable to Capitalized Leases), net of cash interest income, of the Borrower
and its Restricted Subsidiaries, determined on a consolidated basis in accordance with GAAP,
with respect to all outstanding Indebtedness of the Borrower and its Restricted Subsidiaries,
including all commissions, discounts and other fees and charges owed with respect to letters of
credit and bankers’ acceptance financing and net cash costs under Swap Contracts; provided that
there shall be excluded from Consolidated Interest Expense for any period:
(a) deferred financing costs, debt issuance costs, commissions, fees (including
amendment and contract fees) and expenses and, in each case, the amortization thereof,
and any other amounts of non-cash interest,
(b) the accretion or accrual of discounted liabilities and any prepayment
premium or penalty during such period,
(c) non-cash interest expense attributable to the movement of the mark-to-
market valuation of obligations under Swap Contracts or other derivative instruments
pursuant to FASB ASC 815.
(d) any cash costs associated with early termination in respect of hedging
agreements for interest rates,
(e) Transaction Expenses,
(f) annual agency fees paid to the Administrative Agent,
(g) costs associated with obtaining Swap Contracts,
(h) any expense resulting from the discounting of any Indebtedness in
connection with the application of recapitalization accounting or, if applicable,
acquisition accounting in connection with the Transactions or any acquisition, and
(i) the cash interest expense (or income) of all Unrestricted Subsidiaries for
such period to the extent otherwise included in Consolidated Interest Expense.
“Consolidated Net Income” means, for any period, net income (or loss) of the Borrower
and the Restricted Subsidiaries for such period determined on a consolidated basis in accordance
with GAAP, but excluding
(i) any after-tax effect of extraordinary, non-recurring or unusual items
(including gains or losses and all fees and expenses relating thereto) for such period,
(ii) the cumulative effect of a change in accounting principles during such
period to the extent included in Consolidated Net Income,
17
(iii) any net after-tax effect of gains or losses (less all fees, expenses and
charges relating thereto) on discontinued operations or asset dispositions, abandonments
or the sale or other disposition of Capital Stock of any Person, in each case other than in
the ordinary course of business (as determined in good faith by the Borrower),
(iv) the net income (loss) for such period of any Person that is not a Subsidiary
of the Borrower, or is an Unrestricted Subsidiary, or that is accounted for by the equity
method of accounting; provided that Consolidated Net Income of the Borrower shall be
increased by the amount of dividends or distributions or other payments that are actually
paid in cash or Cash Equivalents (or to the extent subsequently converted into cash or
Cash Equivalents) to the Borrower or a Restricted Subsidiary thereof in respect of such
period,
(v) any impairment charge or asset write-off or write-down, including
impairment charges or asset write-offs or write-downs related to intangible assets, long-
lived assets, investments in debt and equity securities or as a result of a Change in Law,
in each case, pursuant to GAAP, and the amortization of intangibles arising pursuant to
GAAP, and
(vi) the income (or loss) of any Person accrued prior to the date it becomes a
Restricted Subsidiary of Borrower or is merged into or consolidated with Borrower or
any of its Subsidiaries or that Person’s assets are acquired by Borrower or any of its
Restricted Subsidiaries shall be excluded (except to the extent required for any
calculation of Consolidated EBITDA on a Pro Forma Basis in accordance with
Section 1.07).
There shall be excluded from Consolidated Net Income for any period the acquisition
accounting effects of adjustments in component amounts required or permitted by GAAP
pursuant to FASB ASC 805 (including in the inventory, property and equipment, fair value of
leased property, software, goodwill, intangible assets, in-process research and development,
deferred revenue, deferred rent, contingent considerations and debt line items thereof) and
related authoritative pronouncements (including the effects of such adjustments pushed down to
the Borrower and the Restricted Subsidiaries), as a result of the Transactions, any acquisition
constituting an Investment permitted under this Agreement consummated prior to or after the
Closing Date, or the amortization or write-off of any amounts thereof.
“Consolidated Total Net Debt” means, as of any date of determination, (a) the
aggregate principal amount of Indebtedness of the Borrower and its Restricted Subsidiaries
outstanding on such date, in an amount that would be reflected on a balance sheet prepared as of
such date on a consolidated basis in accordance with GAAP (but excluding the effects of any
discounting of Indebtedness resulting from the application of acquisition accounting in
connection with the Transactions or any acquisition constituting an Investment permitted under
this Agreement) consisting of Indebtedness for borrowed money, Attributable Indebtedness, and
debt obligations evidenced by promissory notes or similar instruments (including purchase
money debt) and all guarantees of Indebtedness of such type that is owed by a Person that is not
the Borrower or a Restricted Subsidiary, minus (b) the aggregate amount not to exceed for
purposes of this clause (b) $85,000,000 of cash and Cash Equivalents (other than Restricted
18
Cash), in each case, included on the consolidated balance sheet of the Borrower and the
Restricted Subsidiaries as of such date, free and clear of all Liens (other than Liens permitted by
clauses (a), (b), (c), (e), (f), (j), (l), (m), (p), (t) and (w) of Section 8.01 (to the extent, with
respect to such clauses (m), (t) and (w) of Section 8.01, such Liens are not first priority Liens or
the obligations secured by such Lien are subordinated to the Obligations); provided that (A)
Consolidated Total Net Debt shall not include Indebtedness in respect of (i) letters of credit,
except to the extent of unreimbursed amounts thereunder and (which unreimbursed amount
under commercial letters of credit shall not be counted as Consolidated Total Net Debt until
three Business Days after such amount is drawn) and (ii) Unrestricted Subsidiaries and (B) for
the avoidance of doubt, it is understood and agreed that obligations under Swap Contracts do not
constitute Consolidated Total Net Debt.
“Consolidated Total Net Leverage Ratio” means, with respect to any Test Period, the
ratio of (a) Consolidated Total Net Debt as of the last day of such Test Period to (b) Consolidated
EBITDA for such Test Period.
“Continuing Directors” means, as of any date of determination, any director or manager
(or their equivalent) of the Borrower:
(a) who was a director or manager (or their equivalent) on the Closing Date;
or
(b) whose nomination for election to the board of directors or managers (or
their equivalent) of the Borrower is recommended by, or is otherwise elected to the board
of directors or managers (or their equivalent) with the approval of, a majority of the then
Continuing Directors at the time of such nomination or election.
“Contractual Obligation” means, as to any Person, any provision of any security issued
by such Person or of any agreement, instrument or other undertaking to which such Person is a
party or by which it or any of its property is bound.
“Control” means the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the ability to exercise
voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings
correlative thereto. Without limiting the generality of the foregoing, a Person shall be deemed to
be Controlled by another Person if such other Person possesses, directly or indirectly, power to
vote 10% or more of the securities having ordinary voting power for the election of directors,
managing general partners or the equivalent.
“Credit Agreement” has the meaning provided in the introductory paragraph hereto.
“Credit Documents” means this Credit Agreement, the Notes, the Issuer Documents, the
Collateral Documents, the Guaranties, each Request for Credit Extension, any agreement
creating or perfecting rights in Cash Collateral pursuant to the provisions of Section 2.16 of this
Credit Agreement and the Joinder Agreements.
“Credit Extension” means each of the following: (a) a Borrowing, (b) the conversion or
continuation of a Borrowing and (c) an L/C Credit Extension.
19
“Credit Parties” means, collectively, the Borrower and the Guarantors.
“Credit Party Materials” has the meaning provided in Section 7.02.
“Cumulative Equity Credit” means, at any date, an amount determined on a cumulative
basis equal to, without duplication:
(a) the cumulative amount of cash and Cash Equivalent proceeds from the
sale of Qualified Stock of the Borrower after the Closing Date and on or prior to such
time (including upon exercise of warrants or options) (other than any amount used to
incur Indebtedness pursuant to Section 8.03(o), make Restricted Payments pursuant to
Section 8.06(d) or make prepayments of Junior Debt pursuant to Section 8.12(a)) which
proceeds have been contributed as common equity to the capital of the Borrower, plus
(b) 100% of the aggregate amount of contributions to the common capital of
the Borrower received in cash and Cash Equivalents after the Closing Date (other than
any amount used to incur Indebtedness pursuant to Section 8.03(o), make Restricted
Payments pursuant to Section 8.06(d) or make prepayments of Junior Debt pursuant to
Section 8.12(a)), plus
(c) an amount equal to any returns in cash and Cash Equivalents (including
dividends, interest, distributions, returns of principal, profits on sale, repayments, income
and similar amounts) actually received by the Borrower or any Restricted Subsidiary in
respect of any Investments made pursuant to Section 8.02(m)(y), minus
(d) any amount of the Cumulative Equity Credit used to make Investments
pursuant to Section 8.02(m)(y), make Restricted Payments pursuant to Section 8.06(h)(y)
or make payments or distributions in respect of Junior Debt pursuant to Section
8.12(a)(iii)(y) after the Closing Date and prior to such time.
“Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other
liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the
United States or other applicable jurisdictions from time to time in effect and affecting the rights
of creditors generally.
“Default” means any event, act or condition that constitutes an Event of Default or that,
with the giving of notice, the passage of time, or both, would constitute an Event of Default.
“Default Rate” means,
(a) in the case of the Letter of Credit Fee, an interest rate equal to the sum of
(i) the Applicable Percentage for Revolving Credit Loans that are Base Rate Loans, plus
(ii) two percent (2.0%) per annum;
(b) in the case of Eurocurrency Rate Loans under any Facility, an interest rate
equal to the sum of (i) the Eurocurrency Rate therefor, plus (ii) the Applicable Percentage
20
in respect of Eurocurrency Rate Loans under such Facility, plus (iii) two percent (2.0%)
per annum;
(c) in the case of Base Rate Loans under any Facility, an interest rate equal to
the sum of (i) the Base Rate, plus (ii) the Applicable Percentage in respect of Base Rate
Loans under such Facility, plus (iii) two percent (2.0%) per annum; and
(d) in all other cases, an interest rate equal to the sum of (i) the Base Rate,
plus (ii) the Applicable Percentage in respect of Revolving Loans that are Base Rate
Loans, plus (iii) two percent (2.0%) per annum.
“Defaulting Lender” means any Lender that (a) has failed to (i) fund all or any portion
of its Loans within two Business Days of the date such Loans were required to be funded
hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that
such failure is the result of such Lender’s determination that one or more conditions precedent to
funding (each of which conditions precedent, together with any applicable Default, shall be
specifically identified in such writing) has not been satisfied or (ii) pay to the Administrative
Agent, the L/C Issuer, the Swingline Lender or any other Lender any other amount required to be
paid by it hereunder (including in respect of its participation in Letters of Credit or Swingline
Loans) within two Business Days of the date when due, (b) has notified the Borrower, the
Administrative Agent, the L/C Issuer or the Swingline Lender in writing that it does not intend to
comply with its funding obligations hereunder, or has made a public statement to that effect
(unless such writing or public statement relates to such Lender’s obligation to fund a Loan
hereunder and states that such position is based on such Lender’s determination that a condition
precedent to funding (which condition precedent, together with any applicable Default, shall be
specifically identified in such writing or public statement) cannot be satisfied), (c) has failed,
within three Business Days after written request by the Administrative Agent or the Borrower, to
confirm in writing to the Administrative Agent and the Borrower that it will comply with its
prospective funding obligations hereunder (provided that such Lender shall cease to be a
Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the
Administrative Agent and the Borrower) or (d) has, or has a direct or indirect parent company
that has, (i) become the subject of a proceeding under any Debtor Relief Law, or (ii) had
appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit
of creditors or similar Person charged with reorganization or liquidation of its business or assets,
including the Federal Deposit Insurance Corporation or any other state or federal regulatory
authority acting in such a capacity or (iii) became the subject of a Bail-in Action; provided that a
Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any
equity interest in that Lender or any direct or indirect parent company thereof by a Governmental
Authority so long as such ownership interest does not result in or provide such Lender with
immunity from the jurisdiction of courts within the United States or from the enforcement of
judgments or writs of attachment on its assets or permit such Lender (or such Governmental
Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or
agreements made with such Lender. Any determination by the Administrative Agent that a
Lender is a Defaulting Lender under clauses (a) through (d) above shall be conclusive and
binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender upon
delivery of written notice of such determination to the Borrower, the L/C Issuer, the Swingline
Lender and the Lenders.
21
“Defaulting Lender Account” has the meaning provided in Section 2.17(a).
“Disposition” or “Dispose” means the sale, transfer, license, lease, abandonment or other
disposition of any Property by any Person, including any sale, assignment, transfer or other
disposal, with or without recourse, of any notes or accounts receivable or any rights and claims
associated therewith, but excluding, for purposes hereof, (a) Dispositions of obsolete, worn out,
surplus or no longer used or useful property, whether now owned or hereafter acquired, (b)
Dispositions of inventory and goods held for sale in the ordinary course of business in the
ordinary course of business, (c) Dispositions of equipment or real property to the extent that (i)
such property is exchanged for credit against the purchase price of similar replacement property
or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of
such replacement property, (d) Dispositions or discounts without recourse of accounts receivable
in connection with the compromise or collection thereof in the ordinary course of business, (e)
any Involuntary Disposition and (f) the unwinding of any Swap Contract.
“Disqualified Institutions” means those Persons (the list of all such Persons, the
“Disqualified Institutions List”) that are (i) identified in writing by the Borrower to the
Administrative Agent prior to March 23, 2016, (ii) competitors of the Borrower and its
Subsidiaries that are identified in writing by the Borrower to the Administrative Agent from time
to time or (iii) Affiliates of such Persons set forth in clauses (i) and (ii) above (in the case of
Affiliates of such Persons set forth in clause (ii) above, other than bona fide fixed income
investors or debt funds) that are either (a) identified in writing by the Borrower to the
Administrative Agent from time to time or (b) clearly identifiable on the basis of such Affiliate’s
name; provided that to the extent Persons are identified as Disqualified Institutions in writing by
the Borrower to the Administrative Agent after the Closing Date pursuant to clauses (ii) or
(iii)(a), the inclusion of such Persons as Disqualified Institutions shall not retroactively apply to
prior assignments or participations in respect of any Loan under this Credit Agreement. Until the
disclosure of the identity of a Disqualified Institution to the Lenders generally by the
Administrative Agent, such Person shall not constitute a Disqualified Institution for purposes of
a sale of a participation in a Loan or an assignment of a Loan by a Lender; provided that no
disclosure of the Disqualified Institutions List (or the identity of any Person that constitutes a
Disqualified Institution) to the Lenders shall be made by the Administrative Agent without the
prior written consent of the Borrower. Notwithstanding the foregoing, the Borrower, by written
notice to the Administrative Agent, may from time to time in its sole discretion remove any
entity from the Disqualified Institutions List (or otherwise modify such list to remove any
particular entity), and such entity removed from the Disqualified Institutions List shall no longer
be a Disqualified Institution for any purpose under this Credit Agreement or any other Credit
Document.
“Disqualified Institutions List” has the meaning as set forth in the definition of
Disqualified Institutions.
“Disqualified Stock” means any Capital Stock that, by its terms (or by the terms of any
security into which it is convertible, or for which it is exchangeable, in each case at the option of
the holder of the Capital Stock), or upon the happening of an event or condition (a) matures or is
mandatorily redeemable (other than solely for Qualified Stock), pursuant to a sinking fund
obligation or otherwise (except as a result of a change of control or asset sale so long as any
22
rights of the holders thereof upon the occurrence of a change of control or asset sale event shall
be subject to the prior repayment in full of the Loans and all other Obligations (other than (i)
contingent indemnification obligations as to which no claim has been asserted, (ii) Obligations
described in clauses (b) and (c) of the definition thereof and (iii) any Letter of Credit that has
been Cash Collateralized or back-stopped by a letter of credit reasonably satisfactory to the L/C
Issuer or such Letter of Credit has been deemed reissued under another agreement reasonably
acceptable to the L/C Issuer) that are accrued and payable and the termination of the
Commitments and the termination of all outstanding Letters of Credit (unless the Outstanding
Amount of the L/C Obligations related thereto has been Cash Collateralized, back-stopped by a
letter of credit reasonably satisfactory to the L/C Issuer or deemed reissued under another
agreement reasonably acceptable to the L/C Issuer)), (b) is redeemable at the option of the holder
thereof (other than solely for Qualified Stock and other than as a result of a change of control or
asset sale event shall be subject to the prior repayment in full of the Loans and all other
Obligations (other than (i) contingent indemnification obligations as to which no claim has been
asserted, (ii) Obligations described in clauses (b) and (c) of the definition thereof and (iii) any
Letter of Credit that has been Cash Collateralized or back-stopped by a letter of credit reasonably
satisfactory to the L/C Issuer or such Letter of Credit has been deemed reissued under another
agreement reasonably acceptable to the L/C Issuer) that are accrued and payable and the
termination of the Commitments and the termination of all outstanding Letters of Credit (unless
the Outstanding Amount of the L/C Obligations related thereto has been Cash Collateralized,
back-stopped by a letter of credit reasonably satisfactory to the L/C Issuer or deemed reissued
under another agreement reasonably acceptable to the L/C Issuer)), in whole or in part or (c) is or
becomes convertible into or exchangeable for Indebtedness or any other Capital Stock that would
constitute Disqualified Stock, in each case, prior to the date that is 91 days after the Latest
Maturity Date at the time of issuance of such Capital Stock; provided that if such Capital Stock
is issued pursuant to a plan for the benefit of future, current or former employees, directors,
officers, members of management or consultants of the Borrower or the Restricted Subsidiaries
or by any such plan to such employees, directors, officers, members of management or
consultants, such Capital Stock shall not constitute Disqualified Stock solely because they may
be permitted to be repurchased by the Borrower or its Restricted Subsidiaries in order to satisfy
applicable statutory or regulatory obligations or as a result of such employee’s, director’s,
officer’s, management member’s or consultant’s termination of employment or service, as
applicable, death or disability.
“Distressed Agent-Related Person” has the meaning provided in the definition of
Agent-Related Distress Event.
“Dollar” or “$” means the lawful currency of the United States.
“Dollar Equivalent” means, at any time, (a) with respect to any amount denominated in
Dollars, such amount, and (b) with respect to any amount denominated in any Alternative
Currency, the equivalent amount thereof in Dollars as determined by the L/C Issuer at such time
on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the
purchase of Dollars with such Alternative Currency.
“Domestic Subsidiary” means any Subsidiary that is organized under the Laws of any
state of the United States or the District of Columbia.
23
“EEA Financial Institution” means (a) any credit institution or investment firm
established in any EEA Member Country which is subject to the supervision of an EEA
Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of
an institution described in clause (a) of this definition, or (c) any financial institution established
in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b)
of this definition and is subject to consolidated supervision with its parent;
“EEA Member Country” means any of the member states of the European Union,
Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” means any public administrative authority or any person
entrusted with public administrative authority of any EEA Member Country (including any
delegee) having responsibility for the resolution of any EEA Financial Institution.
“Eligible Assignee” has the meaning set forth in Section 11.06(a)(i). For the avoidance
of doubt, “Eligible Assignee” shall not include any Disqualified Institution.
“Environment” shall mean ambient air, indoor air, surface water, groundwater, drinking
water, land surface, sediments, and subsurface strata & natural resources such as wetlands, flora
and fauna.
“Environmental Laws” means any and all applicable federal, state, local, and foreign
statutes, laws (including the common law), regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or governmental
restrictions relating to pollution, the protection of the Environment or the Release of any
Hazardous Materials into the Environment.
“Environmental Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or indemnities), of or
relating to the Borrower, any other Credit Party or any of their respective Subsidiaries directly or
indirectly resulting from or based upon (a) any Environmental Law, including a violation of any
Environmental Law, (b) the generation, use, handling, transportation, storage or treatment of any
Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the Release or threatened
Release of any Hazardous Materials into the Environment or (e) any contract, agreement or other
consensual arrangement pursuant to which liability is assumed or imposed with respect to any of
the foregoing.
“Environmental Permit” means any permit, approval, identification number, license or
other authorization required under any Environmental Law.
“Equity Offering” means the issuance by the Borrower of any Capital Stock in an
underwritten public offering (other than a public offering pursuant to a registration statement on
Form S-8) pursuant to an effective registration statement filed with the U.S. Securities and
Exchange Commission in accordance with the Securities Act or in a private placement pursuant
to an exemption from the Securities Act.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.
24
“ERISA Affiliate” means any trade or business (whether or not incorporated) that
together with the Borrower or any other Credit Party is treated as a single employer under
Section 414(b) or (c) of the Internal Revenue Code (and Sections 414(m) and (o) of the Internal
Revenue Code for purposes of provisions relating to Section 412 of the Internal Revenue Code).
“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a
withdrawal by a Credit Party or any ERISA Affiliate from a Pension Plan subject to Section
4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section
4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under
Section 4062(e) of ERISA; (c) a complete or partial withdrawal by a Credit Party or any ERISA
Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in
reorganization; (d) the filing of a notice of intent to terminate, the treatment of a plan amendment
as a termination under Sections 4041 or 4041A of ERISA, or the commencement of proceedings
by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or condition that
would reasonably be expected to constitute grounds under Section 4042 of ERISA for the
termination by the PBGC of, or the appointment of a trustee to administer, any Pension Plan or
Multiemployer Plan; (f) the failure by a Credit Party or any ERISA Affiliate to satisfy the
minimum funding standard applicable to a Pension Plan for any plan year under Section 412 of
the Internal Revenue Code or Section 303 of ERISA; (g) the determination that any Pension Plan
is considered an at-risk plan within the meaning of Section 430 of the Internal Revenue Code or
Section 303 of ERISA; (h) receipt by a Credit Party or any ERISA Affiliate of any notice that
any Multiemployer Plan is in “endangered” or “critical” status within the meaning of Sections
431 and 432 of the Internal Revenue Code and Sections 304 and 305 of ERISA; or (i) the
imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not
delinquent under Section 4007 of ERISA by the PBGC, upon a Credit Party or any ERISA
Affiliate.
“Escrow Assumption” means with respect to any Incremental Term Loan that is initially
established as an Escrow Incremental Term Loan, the assumption of the Escrow Borrower’s
obligations with respect thereto by the Borrower pursuant to an assumption agreement in form
reasonably satisfactory to the Administrative Agent.
“Escrow Borrower” means a Person that is a U.S. entity and is not the Borrower
established to (i) borrow Escrow Incremental Term Loans pending assumption of such
Incremental Term Loans by the Borrower or (ii) assume the obligations of the Borrower with
respect to previously incurred Incremental Term Loans, in each case, that is designated in the
applicable Incremental Amendment or assumption agreement as an Escrow Borrower and that is
not engaged in any material operations and does not have any other material assets other than in
connection therewith.
“Escrow Funding Assignment” means the assignment by the Borrower to an Escrow
Borrower and the assumption by such Escrow Borrower, in each case, of the obligations of the
Borrower with respect to previously incurred Incremental Term Loans.
“Escrow Incremental Term Loan”: any Incremental Term Loan that either (x) is
initially borrowed by an Escrow Borrower or (y) is initially borrowed by the Borrower but was
subsequently converted to an Escrow Incremental Term Loans in accordance with Section 2.18,
25
in each case, for so long as the Escrow Assumption with respect to such Incremental Term Loan
has not occurred.
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule
published by the Loan Market Association (or any successor person), as in effect from time to
time.
“Eurocurrency Rate” means:
(a) for any Interest Period with respect to a Eurocurrency Rate Loan, the rate
per annum equal to the London Interbank Offered Rate (“LIBOR”) or a comparable or
successor rate, which rate is approved by the Administrative Agent, as published on the
applicable Bloomberg screen page (or such other commercially available source
providing such quotations as may be designated by the Administrative Agent from time
to time) at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, for Dollar deposits (for delivery on the first day
of such Interest Period) with a term equivalent to such Interest Period;
(b) for any interest calculation with respect to a Base Rate Loan on any date,
the rate per annum equal to LIBOR, at or about 11:00 a.m., London time determined two
Business Days prior to such date for U.S. Dollar deposits with a term of one month
commencing that day; and
(c) if the Eurocurrency Rate shall be less than zero, such rate shall be deemed zero
for purposes of this Agreement;
provided that to the extent a comparable or successor rate is approved by the Administrative
Agent in connection herewith, the approved rate shall be applied in a manner consistent with
market practice; provided, further, that to the extent such market practice is not administratively
feasible for the Administrative Agent, such approved rate shall be applied in a manner as
otherwise reasonably determined by the Administrative Agent in consultation with the Borrower.
“Eurocurrency Rate Loan” means a Revolving Credit Loan or a Term Loan that bears
interest at a rate based on clause (a) of the definition of “Eurocurrency Rate.”
“Eurocurrency Reserve Percentage” means, for any day, the reserve percentage
(expressed as a decimal, carried out to five decimal places) in effect on such day, whether or not
applicable to any Lender, under regulations issued from time to time by the FRB for determining
the maximum reserve requirement (including any emergency, supplemental or other marginal
reserve requirement) with respect to Eurocurrency funding (currently referred to as
“Eurocurrency liabilities”). The Eurocurrency Rate for each outstanding Eurocurrency Rate
Loan and for each outstanding Base Rate Loan bearing interest at a rate based on the
Eurocurrency Rate shall be adjusted automatically as of the effective date of any change in the
Eurocurrency Reserve Percentage.
“Eurocurrency Unavailability Period” means any period of time during which a notice
delivered to the Borrower in accordance with Section 3.03 shall remain in force and effect.
26
“Euros” means the lawful currency of the Participating Member States.
“Event of Default” has the meaning provided in Section 9.01.
“Exchange Act” means the Securities Exchange Act of 1934.
“Excluded Property” means (i) any fee-owned real property and any leasehold rights
and interests in real property (it being understood that there shall be no requirement to obtain
landlord waivers, estoppels and collateral access letters), (ii) motor vehicles, aircraft and other
assets subject to certificates of title, except to the extent a security interest therein can be
perfected by the filing of a UCC financing statement, (iii) Commercial Tort Claims (as defined in
the Security Agreement) where the amount of damages claimed by the applicable Credit Party is
less than $5,000,000, (iv) governmental licenses or state or local franchises, charters and
authorizations and any other property and assets to the extent that the Collateral Agent may not
validly possess a security interest therein under applicable Laws (including rules and regulations
of any Governmental Authority or agency) or the pledge or creation of a security interest in
which would require governmental consent, approval, license or authorization, other than to the
extent such prohibition or limitation is rendered ineffective under the UCC or other applicable
Law notwithstanding such prohibition or to the extent such consent has been obtained, (v) any
particular asset or right under contract, if the pledge thereof or the security interest therein is
prohibited or restricted by applicable Law, rule or regulation (including any rules or regulations
of any Governmental Authority or agency), or any third party (so long as any agreement with
such third party that provides for such prohibition or restriction was not entered into in
contemplation of the acquisition of such assets or entering into of such contract for the purpose
of creating such prohibition or restriction), other than to the extent any such prohibition or
restriction is rendered ineffective under the UCC or other applicable Law notwithstanding such
prohibition or restriction, (vi) (A) margin stock, (B) Capital Stock in any Unrestricted
Subsidiaries and (C) Capital Stock in any non-wholly owned Restricted Subsidiaries and any
entities which do not constitute Subsidiaries, but only to the extent that (x) the Organization
Documents or other agreements with equity holders (other than the Borrower and its Restricted
Subsidiaries) of such non-wholly owned Restricted Subsidiary or other entity do not permit or
restrict the pledge of such Capital Stock (to the extent such restriction existed on the Closing
Date or on the date of acquisition of such non-wholly owned Restricted Subsidiary), or (y) the
pledge of such Capital Stock (including any exercise of remedies) would result in a change of
control, repurchase obligation or other adverse consequence to any of the Credit Parties or such
non-wholly owned Restricted Subsidiary or other entity, (vii) any lease, license or agreement or
any property subject to a purchase money security interest, Capitalized Lease obligations or
similar arrangement permitted hereunder, in each case permitted hereunder, to the extent the
grant of a security interest therein would violate or invalidate such lease, license or agreement or
purchase money or similar arrangement or create a right of termination in favor of any other
party thereto (other than the Borrower or any of its Restricted Subsidiaries) after giving effect to
the applicable anti-assignment provisions of the UCC or other applicable Law, other than
proceeds and receivables thereof, the assignment of which is expressly deemed effective under
the UCC or other applicable Law notwithstanding such prohibition, (viii) any property or assets
for which the creation or perfection of pledges of, or security interests in, such property or assets
pursuant to the Collateral Documents would result in material adverse tax consequences to the
Borrower or any of its Subsidiaries, as reasonably determined by the Borrower in consultation
27
with the Administrative Agent, (ix) letter-of-credit rights, except to the extent the security
interest therein may be perfected by the filing of a UCC financing statement, (x) (A) payroll and
other employee wage and benefit accounts, (B) tax accounts, including sales tax accounts, (C)
escrow accounts and (D) fiduciary or trust accounts and, in the case of clauses (A) through (D),
the funds or other property held in or maintained in any such account (as long as the accounts
described in clauses (A) through (D) are used solely for such purposes), (xi) any intent-to-use
trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use”
with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the
grant of a security interest therein would impair the validity or enforceability of such intent-to-
use trademark application under applicable federal Law and (xii) assets in circumstances where
the cost of obtaining a security interest in such assets, including the cost of title insurance,
surveys or flood insurance (if necessary), would be excessive in light of the practical benefit to
the Lenders afforded thereby as reasonably determined together by the Borrower and the
Administrative Agent; provided, however, that Excluded Property shall not include any proceeds,
substitutions or replacements of any Excluded Property referred to in clause (i) through (xii)
(unless such proceeds, substitutions or replacements would independently constitute Excluded
Property referred to in clauses (i) through (xii)).
“Excluded Subsidiary” means (a) any Subsidiary that is not a Wholly Owned Subsidiary
of the Borrower or a Guarantor, (b) any Subsidiary that is prohibited by applicable Law or by
Contractual Obligations existing on the Closing Date (or, in the case of any newly acquired
Subsidiary, in existence at the time of acquisition but not entered into in contemplation thereof)
from guaranteeing the Obligations or if guaranteeing the Obligations would require
governmental (including regulatory) consent, approval, license or authorization, (c) any
Subsidiary where the Administrative Agent and the Borrower agree that the cost of obtaining a
Guaranty by such Subsidiary would be excessive in light of the practical benefit to the Lenders
afforded thereby, (d) any Foreign Subsidiary, (e) any not-for-profit Subsidiaries, (f) any
Unrestricted Subsidiaries, (g) any special purpose securitization vehicle (or similar entity), (h)
any CFC Holdco, (i) any Domestic Subsidiary that is a direct or indirect Subsidiary of a Foreign
Subsidiary that is a CFC, and (j) any Subsidiary, the obtaining of a Guaranty with respect to
which would result in material adverse tax consequences as reasonably determined by the
Borrower in consultation with the Administrative Agent.
“Excluded Swap Obligation” means, with respect to any Guarantor, any Swap
Obligation if, and to the extent that, all or a portion of the guaranty of such Guarantor of, or the
grant by such Guarantor of a security interest to secure, such Swap Obligation (or any guaranty
thereof) (after giving effect to any keepwell, support or other agreement provided by the
Borrower or any of its Subsidiaries with respect to the obligations of such Guarantor) is or
becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the
Commodity Futures Trading Commission (or the application or official interpretation of any
thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract
participant” as defined in the Commodity Exchange Act and the regulations thereunder at the
time the guaranty of such Guarantor or the grant of such security interest becomes effective with
respect to such Swap Obligation. If a Swap Obligation arises under a master agreement
governing more than one swap, such exclusion shall apply only to the portion of such Swap
Obligation that is attributable to swaps for which such guaranty or security interest is or becomes
illegal.
28
“Excluded Taxes” means, with respect to the Administrative Agent, any Lender, the L/C
Issuer or any other recipient of any payment to be made by or on account of any obligation of
any Credit Party hereunder, (a) Taxes imposed on or measured by its overall net income
(however denominated), and franchise taxes imposed on it (in lieu of net income taxes), in each
case (i) by the jurisdiction (or any political subdivision thereof) under the Laws of which such
recipient is organized or in which its principal office is located or, in the case of any Lender, in
which its applicable Lending Office is located, or (ii) as the result of any other present or former
connection between such recipient and the jurisdiction imposing such Tax (other than any
connection arising solely from such recipient having executed, delivered, become a party to,
performed its obligations under, received payments under, received or perfected a security
interest under, or engaged in any other transaction pursuant to or enforced any Credit Documents,
or sold or assigned an interest in any Loan or Credit Document), (b) any branch profits taxes
imposed by the United States or any similar tax imposed by any other jurisdiction in which a
Lender is located, (c) any U.S. federal withholding Taxes required to be withheld from amounts
payable to a Lender that has failed to comply with clause (A) of Section 3.01(e)(ii), (d) in the
case of a Foreign Lender (other than an assignee pursuant to a request by the Borrower under
Section 11.13), any United States federal withholding tax that (i) is required to be imposed on
amounts payable to such Foreign Lender pursuant to the Laws in force at the time such Foreign
Lender becomes a party hereto (or designates a new Lending Office, other than in the case of a
designation under Section 3.06(a)), except to the extent that such Foreign Lender (or its assignor,
if any) was entitled, at the time of designation of a new Lending Office (or assignment), to
receive additional amounts from the applicable Credit Party with respect to such withholding tax
pursuant to Section 3.01(a)(ii) or (c), (e) U.S. federal backup withholding Taxes, and (f) any
Taxes imposed under FATCA.
“Existing Letters of Credit” means the letters of credit outstanding on the Closing Date
and identified on Schedule 2.03.
“Extended Revolving Commitment” means any Class of Revolving Credit
Commitments the maturity of which shall have been extended pursuant to Section 2.19.
“Extended Revolving Loans” means any Revolving Credit Loans made pursuant to the
Extended Revolving Commitments.
“Extended Term Loans” means any Class of Term Loans the maturity of which shall
have been extended pursuant to Section 2.19.
“Extension” has the meaning provided in Section 2.19(a).
“Extension Amendment” has the meaning provided in Section 2.19(d).
“Extension Offer” has the meaning provided in Section 2.19(a).
“Facility” means the Term Loan Facility or the Revolving Credit Facility, as the context
may require.
“FASB ASC” means the Accounting Standards Codification of the Financial Accounting
Standards Board.
29
“FATCA” means Sections 1471 through 1474 of the Internal Revenue Code as of the
Closing Date (or any amended or successor version to the extent substantively comparable and
not materially more onerous to comply with), any current or future regulations or official
interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the
Internal Revenue Code, including any intergovernmental agreements and any rules or official
guidance implementing such intergovernmental agreements.
“FCPA” has the meaning provided in Section 6.21(a).
“Federal Funds Rate” means, for any day, the rate per annum equal to the weighted
average of the rates on overnight federal funds transactions with members of the Federal Reserve
System arranged by federal funds brokers on such day, as published by the Federal Reserve Bank
of New York on the Business Day next succeeding such day; provided that (a) if such day is not
a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on
the next preceding Business Day as so published on the next succeeding Business Day, and (b) if
no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for
such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100th
of 1%) charged to Bank of America on such day on such transactions as determined by the
Administrative Agent.
“Fee Letter” means the Fee Letter addressed to the Borrower, dated as of March 23,
2016, from Bank of America, Citibank, N.A., KeyBank National Association, SunTrust Bank
and the Arrangers.
“Financial Covenants” means the covenants set forth in Section 8.11.
“Foreign Disposition” has the meaning provided in Section 2.06(b)(ii)(D).
“Foreign Lender” means any Lender that is not a United States person for U.S. federal
income tax purposes.
“Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.
“Francs” means the lawful currency of Switzerland.
“FRB” means the Board of Governors of the Federal Reserve System of the United
States.
“Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to
the L/C Issuer, such Defaulting Lender’s Aggregate Commitment Percentage of the outstanding
L/C Obligations other than L/C Obligations as to which such Defaulting Lender’s participation
obligation has been reallocated to other Revolving Credit Lenders or Cash Collateralized in
accordance with the terms hereof, and (b) with respect to the Swingline Lender, such Defaulting
Lender’s Aggregate Commitment Percentage of Swingline Loans other than Swingline Loans as
to which such Defaulting Lender’s participation obligation has been reallocated to other
Revolving Credit Lenders or Cash Collateralized in accordance with the terms hereof.
30
“Fund” means any Person (other than a natural person) that is (or will be) engaged in
making, purchasing, holding or otherwise investing in commercial loans and similar extensions
of credit in the ordinary course of its activities.
“GAAP” means generally accepted accounting principles in the United States set forth in
the opinions and pronouncements of the Accounting Principles Board and the American Institute
of Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board in the United States, that are applicable to the circumstances as of the date of
determination, or on adoption of the International Financial Reporting Standards (the “IFRS”),
the IFRS, in either case, consistently applied and subject to the provisions of Section 1.03.
“Governmental Authority” means the government of the United States or any other
nation, or of any political subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to
government (including any supra-national bodies such as the European Union or the European
Central Bank) and any group or body charged with setting financial accounting or regulatory
capital rules or standards (including the Financial Accounting Standards Board, the Bank for
International Settlements or the Basel Committee on Banking Supervision or any successor or
similar authority to any of the foregoing).
“Guarantors” has the meaning set forth in the definition of “Collateral and Guarantee
Requirement” and shall include each Restricted Subsidiary who after the Closing Date becomes
a Guarantor pursuant to a Joinder Agreement or other documentation in form and substance
reasonably acceptable to the Administrative Agent, in each case together with their respective
successors and permitted assigns. For avoidance of doubt, and notwithstanding any limitations
to the requirement to provide a Guaranty or grant security interests in the assets of any
Subsidiary to the contrary, the Borrower with the consent of the Administrative Agent (not to be
unreasonably withheld, conditioned or delayed) may cause any Restricted Subsidiary that is not a
Guarantor to guarantee the Obligations and comply with the provisions of Section 7.12
(including in the case of any Foreign Subsidiary by delivering, within time frames and subject to
extensions as agreed with the Administrative Agent, such Collateral Documents, as determined
as reasonably necessary by the Administrative Agent in consultation with the Borrower, to grant
and perfect security interests in such Foreign Subsidiary’s relevant assets for which security
interests are customarily granted in such Subsidiary’s jurisdiction of organization but with
exclusions consistent as applicable with the definition of Excluded Property) by causing such
Restricted Subsidiary to execute a joinder to this Agreement in form and substance reasonably
satisfactory to the Administrative Agent, and any such Restricted Subsidiary shall be a Guarantor
and Credit Party hereunder for all purposes. In addition, the Borrower shall be a Guarantor in
respect of Swap Obligations and Treasury Management Obligations to which the Borrower is not
party.
“Guaranty” means (a) the guaranty provided pursuant to Article 4 hereof and/or (b) any
other guaranty agreement given by any Person pursuant to the terms hereof.
31
“Hazardous Materials” means petroleum or petroleum distillates, asbestos or asbestos-
containing materials, polychlorinated biphenyls, radon gas and all other substances, materials or
wastes of any nature regulated pursuant to any Environmental Law.
“Historical Financial Statements” means (a) the audited consolidated balance sheets
and related statements of comprehensive income, shareholders’ equity and cash flows of the
Borrower for the fiscal years ended June 30, 2014, June 30, 2015 and June 30, 2016 (the
“Annual Financial Statements”) and (b) the unaudited consolidated balance sheets and related
consolidated statements of comprehensive income and cash flows for the Borrower for the fiscal
quarters of the Borrower ended September 30, 2016, December 31, 2016 and March 31, 2017(the
“Quarterly Financial Statements”).
“IFRS” has the meaning specified in the definition of GAAP.
“Incremental Amendment” has the meaning provided in Section 2.18(e).
“Incremental Amendment Date” has the meaning provided in Section 2.18(c).
“Incremental Commitment” means an Incremental Revolving Commitment or an
Incremental Term Commitment, as applicable.
“Incremental Equivalent Debt” has the meaning provided in Section 8.03(q).
“Incremental Facility” means an Incremental Term Commitment or an Incremental
Revolving Commitment, as applicable.
“Incremental Facility Closing Date” has the meaning provided in Section 2.18(b).
“Incremental Increase” means an Incremental Term Loan Increase or a Revolving
Commitment Increase, as applicable.
“Incremental Lender” means an Incremental Revolving Lender or an Incremental Term
Lender, as applicable.
“Incremental Loans” means the Incremental Term Loans or the Incremental Revolving
Loans, as applicable.
“Incremental Revolving Commitment” means the commitment of any Lender,
established pursuant to Section 2.18, to make Incremental Revolving Loans to the Borrower.
“Incremental Revolving Lender” means a Revolving Credit Lender with an Incremental
Revolving Commitment or an outstanding Incremental Revolving Loan.
“Incremental Revolving Loan” means Revolving Credit Loans made by one or more
Revolving Credit Lenders to the Borrower pursuant to their Incremental Revolving
Commitments. Incremental Revolving Loans may only be made in the form of additional
Revolving Credit Loans.
32
“Incremental Term Commitment” means the commitment of any Lender, established
pursuant to Section 2.18, to make Incremental Term Loans to the Borrower.
“Incremental Term Lender” means a Lender with an Incremental Term Commitment or
an outstanding Incremental Term Loan.
“Incremental Term Loans” has the meaning specified in Section 2.18.
“Incremental Term Loan Increase” has the meaning specified in Section 2.18.
“Indebtedness” means, as to any Person at a particular time, without duplication, all of
the following, whether or not included as indebtedness or liabilities in accordance with GAAP:
(a) all obligations of such Person for borrowed money and all obligations of
such Person evidenced by bonds, debentures, notes, loan agreements or other similar
instruments;
(b) all indebtedness and obligations in respect of the deferred purchase price
of property or services (other than (i) trade accounts payable incurred in the ordinary
course of business, (ii) any bona fide deferred purchase price arrangement, earn-out or
similar obligation, unless such obligation has not been paid after becoming due and
payable in accordance with its terms and (iii) accruals for payroll and other liabilities
accrued in the ordinary course of business);
(c) all obligations under letters of credit (including standby and commercial),
bankers’ acceptances and similar instruments (including bank guaranties, surety bonds,
comfort letters, keep-well agreements and capital maintenance agreements) to the extent
such instruments or agreements support financial, rather than performance, obligations;
(d) indebtedness (excluding prepaid interest thereon) secured by a Lien on
property owned or being purchased by such Person (including indebtedness arising under
conditional sales or other title retention agreements and mortgage, industrial revenue
bond, industrial development bond and similar financings), whether or not such
indebtedness shall have been assumed by such Person or is limited in recourse;
(e) all Attributable Indebtedness;
(f) all obligations of such Person in respect of Disqualified Stock;
(g) net obligations of such Person under any Swap Contract; and
(h) to the extent not otherwise included above, all Support Obligations of such
Person in respect of any of the foregoing.
For all purposes hereof, the Indebtedness of any Person shall (A) include the
Indebtedness of any partnership or joint venture (other than a joint venture that is itself a
corporation or limited liability company) or other similar entity in which such Person is a general
partner or joint venturer, except to the extent such Person’s liability for such obligation is
33
expressly made non-recourse or otherwise limited and (B) in the case of the Borrower and its
Restricted Subsidiaries, exclude all intercompany Indebtedness so long as such intercompany
Indebtedness (i) has a term not exceeding 364 days (inclusive of any roll-over or extensions of
terms) and (ii) is made in the ordinary course of business. The amount of Indebtedness shall be
determined (i) based on Swap Termination Value in the case of net obligations under Swap
Contracts under clause (g), and (ii) based on the outstanding principal amount of the
Indebtedness that is the subject of the Support Obligations in the case of Support Obligations
under clause (h). The amount of Indebtedness of any Person for purposes of clause (d) (unless
such Indebtedness has been assumed by such Person or is otherwise recourse to such Person)
shall be deemed to be equal to the lesser of (i) the aggregate unpaid amount of such Indebtedness
and (ii) the fair market value of the property encumbered thereby.
“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with
respect to any payment made by or on account of any obligation of the Borrower under any
Credit Document and (b) to the extent not otherwise described in clause (a), Other Taxes.
“Indemnitee” has the meaning provided in Section 11.04(b).
“Information” has the meaning provided in Section 11.07.
“Initial Revolving Credit Commitments” means the Revolving Credit Commitments of
the Revolving Credit Lenders on the Amendment No. 1 Effective Date pursuant to Section
2.01(a).
“Intellectual Property Security Agreements” means the Intellectual Property Security
Agreements as such term is defined in the Security Agreement.
“Intercompany Note” means a promissory note substantially in the form of Exhibit
1.01-3.
“Interest Payment Date” means, (a) as to any Base Rate Loan (including Swingline
Loans), the last Business Day of each March, June, September and December, and the Revolving
Termination Date (in the case of Revolving Credit Loans) or the applicable Maturity Date (in the
case of Term Loans) and, in the case of any Swingline Loan, any other dates as may be mutually
agreed upon by the Borrower and the Swingline Lender, and (b) as to any Eurocurrency Rate
Loan, the last Business Day of each Interest Period for such Loan, the date of repayment of
principal of such Loan, and the Revolving Termination Date (in the case of Revolving Credit
Loans) or the applicable Maturity Date (in the case of Term Loans), and in addition, where the
applicable Interest Period exceeds three months, the date every three months after the beginning
of such Interest Period. If an Interest Payment Date falls on a date that is not a Business Day,
such Interest Payment Date shall be deemed to be the next succeeding Business Day.
“Interest Period” means, as to each Eurocurrency Rate Loan, the period commencing on
the date such Eurocurrency Rate Loan is disbursed or converted to or continued as a
Eurocurrency Rate Loan and ending on the date one, two, three or six months thereafter, as
selected by the Borrower in the applicable Loan Notice or, in the case of Eurocurrency Rate
Loans, a period that is twelve months or less if requested by the Borrower and consented to by
all of the Appropriate Lenders; provided that:
34
(a) any Interest Period that would otherwise end on a day that is not a
Business Day shall be extended to the next succeeding Business Day unless such
Business Day falls in another calendar month, in which case such Interest Period shall
end on the next preceding Business Day;
(b) any Interest Period that begins on the last Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on the last Business Day of the
calendar month at the end of such Interest Period; and
(c) no Interest Period with respect to (i) any Revolving Credit Loan shall
extend beyond the Revolving Termination Date or (ii) any Term Loans shall extend
beyond the applicable Maturity Date.
“Internal Revenue Code” means the Internal Revenue Code of 1986, as amended.
“Investment” means, as to any Person, any direct or indirect acquisition or investment by
such Person, whether by means of (a) the purchase or other acquisition of Capital Stock of
another Person, (b) a loan, advance or capital contribution to, guaranty or assumption of debt of,
or purchase or other acquisition of any other debt or equity participation or interest in, another
Person, including any partnership or joint venture interest in such other Person (excluding, in the
case of the Borrower and its Restricted Subsidiaries, intercompany loans, advances or
Indebtedness having a term not exceeding 364 days (inclusive of any roll over or extensions of
terms) and made in the ordinary course of business) and any arrangement pursuant to which the
investor undertakes any Support Obligation with respect to Indebtedness or other obligation of
such other Person, or (c) the purchase or other acquisition (in one transaction or a series of
transactions) of assets of another Person that constitute a business unit, a line of business or
division of such Person. For purposes of covenant compliance, the amount of any Investment
shall be the amount actually invested, without adjustment for subsequent increases or decreases
in the value of such Investment, but in any event reduced by any dividend, distribution, interest
payment, return of capital, repayment or other amount received in cash by the Borrower or a
Restricted Subsidiary in respect of, but in no event exceeding the original amount of, such
Investment.
For purposes of the definition of “Unrestricted Subsidiary” and the covenants described
under Sections 7.14 and 8.02:
(1) “Investments” shall include the portion (proportionate to the Borrower’s
Capital Stock in such Subsidiary) of the fair market value of the net assets of a Subsidiary
of the Borrower at the time that such Subsidiary is designated an Unrestricted Subsidiary;
provided that upon a redesignation of such Subsidiary as a Restricted Subsidiary, the
Borrower shall be deemed to continue to have a permanent “Investment” in an
Unrestricted Subsidiary in an amount (if positive) equal to:
(a) the Borrower’s “Investment” in such Subsidiary at the time of such
redesignation; less
35
(b) the portion (proportionate to the Borrower’s Capital Stock in such
Subsidiary) of the fair market value of the net assets of such Subsidiary at the
time of such redesignation; and
(2) any property transferred to or from an Unrestricted Subsidiary shall be
valued at its fair market value at the time of such transfer.
“Involuntary Disposition” means the receipt by the Borrower or any Restricted
Subsidiary of any cash insurance proceeds or condemnation awards payable by reason of theft,
loss, physical destruction or damage, taking or similar event with respect to any of its Property.
“IP Rights” has the meaning provided in Section 6.19.
“IRS” means the United States Internal Revenue Service.
“ISP” means, with respect to any Letter of Credit, the “International Standby Practices
1998” published by the Institute of International Banking Law & Practice (or such later version
thereof as may be in effect at the time of issuance of such Letter of Credit).
“Issuer Documents” means, with respect to any Letter of Credit, the L/C Application
and any other document, agreement or instrument (including such Letter of Credit) entered into
by the Borrower (or any other Credit Party) and the L/C Issuer (or in favor of the L/C Issuer),
relating to such Letter of Credit.
“Joinder Agreement” means with respect to any Guarantor, a joinder agreement
substantially in the form of Exhibit 7.12 executed and delivered in accordance with the
provisions of Section 7.12.
“Judgment Currency” has the meaning specified in Section 11.21.
“Junior Debt” has the meaning provided in Section 8.12.
“Latest Maturity Date” means at any time, the latest maturity or expiration date
applicable to any Loan or Commitment (or, if so specified, applicable to the specified Loans or
Commitments or the Class thereof) hereunder at such time.
“Laws” means, collectively, all international, foreign, federal, state and local statutes,
treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial
precedents or authorities, including the interpretation or administration thereof by any
Governmental Authority charged with the enforcement, interpretation or administration thereof,
and all applicable administrative orders, directed duties, licenses, authorizations and permits of,
and agreements with, any Governmental Authority.
“L/C Advance” means, with respect to each Revolving Credit Lender, such Revolving
Credit Lender’s funding of its participation in any L/C Borrowing.
“L/C Application” means an application and agreement for the issuance or amendment
of a Letter of Credit in the form from time to time in use by the L/C Issuer.
36
“L/C Borrowing” means any extension of credit resulting from a drawing under any
Letter of Credit that has not been reimbursed or refinanced as a Borrowing of Revolving Credit
Loans.
“L/C Credit Extension” means, with respect to any Letter of Credit, the issuance thereof
or extension of the expiry date thereof, or the increase of the amount thereof.
“L/C Expiration Date” means the day that is five Business Days prior to the Revolving
Termination Date then in effect (or, if such day is not a Business Day, the immediately preceding
Business Day).
“L/C Honor Date” has the meaning provided in Section 2.03(c)(i).
“L/C Issuer” means (a) as to Existing Letters of Credit, KeyBank National Association
and (b) Bank of America, through itself or through one of its designated Affiliates or branch
offices, in its capacity as issuer of Letters of Credit hereunder, together with its successors in
such capacity. For the avoidance of doubt, KeyBank National Association will be the L/C Issuer
only with respect to the Existing Letters of Credit referred to in the prior sentence.
“L/C Obligations” means, at any time, the sum of (a) the maximum amount available to
be drawn under Letters of Credit then outstanding, assuming compliance with all requirements
for drawings referenced therein, plus (b) the aggregate amount of all L/C Unreimbursed
Amounts, including L/C Borrowings. For purposes of computing the amount available to be
drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in
accordance with Section 1.06. For all purposes of this Credit Agreement, if on any date of
determination a Letter of Credit has expired by its terms but any amount may still be drawn
thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be
deemed to be “outstanding” in the amount so remaining available to be drawn.
“L/C Sublimit” has the meaning provided in Section 2.01(c).
“L/C Unreimbursed Amount” has the meaning provided in Section 2.03(c)(i).
“LCT Election” has the meaning provided in Section 1.07(e).
“LCT Test Date” has the meaning provided in Section 1.07(e).
“Lender” means each of the Persons identified as a “Lender” on the signature pages
hereto (and, as appropriate, includes the Swingline Lender), each other Person that becomes a
“Lender” in accordance with this Credit Agreement and their respective successors and assigns.
“Lending Office” means, as to any Lender, the office or offices of such Lender set forth
in such Lender’s Administrative Questionnaire or such other office or offices as a Lender may
from time to time notify the Borrower and the Administrative Agent.
“Letter of Credit” means each Existing Letter of Credit and each letter of credit issued
hereunder. A Letter of Credit may be a commercial letter of credit or a standby letter of credit.
Letters of Credit may be issued in Dollars or in any Alternative Currency.
37
“Letter of Credit Fees” has the meaning provided in Section 2.09(b)(i).
“LIBOR” has the meaning provided in the definition of “Eurocurrency Rate.”
“Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge, priority or other security interest in the nature of a
security interest of any kind or nature whatsoever (including any conditional sale or other title
retention agreement, any easement, right of way or other encumbrance on title to real property
and any Capitalized Lease having substantially the same economic effect as any of the
foregoing); provided that in no event shall an operating lease in and of itself be deemed a Lien.
“Limited Condition Transaction” means any acquisition permitted by Section 8.02 the
consummation of which is not conditioned on the availability of, or on obtaining, third party
financing.
“Liquidity” means, as of any date of determination, an amount equal to the sum of (a)
amounts available at such time to be drawn under the Revolving Credit Commitments and (b) the
amount of cash and Cash Equivalents of the Borrower and its Restricted Subsidiaries on a
consolidated basis.
“Loan” means any Term Loan, Revolving Credit Loan or Swingline Loan, and Base Rate
Loans and Eurocurrency Rate Loans comprising such Loans.
“Loan Notice” means a notice of (a) a Term Borrowing, (b) a Revolving Credit
Borrowing, (c) a Swingline Borrowing, (d) a conversion of Loans from one Type to the other, or
(e) a continuation of Eurocurrency Rate Loans, which, if in writing, shall be substantially in the
form of Exhibit 2.02 or such other form as may be approved by the Administrative Agent
(including any form on an electronic platform or electronic transmission system as shall be
approved by the Administrative Agent), appropriately completed and signed by a Responsible
Officer of the Borrower.
“Loan Obligations” has the meaning provided in the definition of “Obligations.”
“Mandatory Prepayment Declined Proceeds” has the meaning provided in Section
2.06(b)(ii)(F).
“Mandatory Prepayment Rejection Notice” has the meaning provided in Section
2.06(b)(ii)(F).
“Material Adverse Effect” means (a) a material adverse change in, or a material adverse
effect upon, the operations, business, assets, properties, liabilities (actual or contingent) or
financial condition of the Borrower and its Restricted Subsidiaries, taken as a whole; (b) a
material adverse effect of the ability of the Credit Parties, as a whole, to perform their payment
obligations under the Credit Documents; or (c) a material adverse effect upon the rights and
remedies available to the Lenders or the Administrative Agent under any Credit Document.
“Material Acquisition” means any acquisition of property or series of acquisitions of
property that involves the payment of consideration by the Borrower and its Subsidiaries and any
38
assumption of liabilities and Indebtedness in a consecutive 12-month period of at least
$250,000,000; provided that, for purposes of Section 8.11(b) there shall not be more than one
Material Acquisition after the Amendment No. 1 Effective Date unless the Consolidated Net
Leverage Ratio has been less than or equal to 3.50 to 1.00 as of the last day of a Test Period
ending subsequent to the most recent Material Acquisition.
“Material Domestic Subsidiary” means, at any date of determination, each of the
Borrower’s Domestic Subsidiaries (a) whose total assets (when combined with the assets of such
Subsidiary’s Subsidiaries after eliminating intercompany obligations) at the last day of the most
recent Test Period were equal to or greater than 2.5% of Total Assets at such date or (b) whose
gross revenues (when combined with the revenues of such Subsidiary’s Subsidiaries after
eliminating intercompany obligations) for such Test Period were equal to or greater than 2.5% of
the consolidated gross revenues of the Borrower and the Restricted Subsidiaries for such period,
in each case determined in accordance with GAAP; provided that if, at any time and from time to
time after the Amendment No. 1 Effective Date, Domestic Subsidiaries that are not Guarantors
solely because they do not meet the thresholds set forth in clauses (a) or (b) comprise in the
aggregate more than 5.0% of Total Assets as of the end of the most recently ended fiscal quarter
of the Borrower for which financial statements have been delivered pursuant to Section 7.01 or
more than 5.0% of the consolidated gross revenues of the Borrower and the Restricted
Subsidiaries for such Test Period, then the Borrower shall, not later than forty-five (45) days
after the date by which financial statements for such quarter are required to be delivered pursuant
to this Agreement (or such longer period as the Administrative Agent may agree in its reasonable
discretion), (i) designate in writing to the Administrative Agent one or more of such Domestic
Subsidiaries as “Material Domestic Subsidiaries” to the extent required such that the foregoing
condition ceases to be true and (ii) comply with the provisions of Section 7.12 applicable to such
Subsidiary.
“Material Foreign Subsidiary” means, at any date of determination, each of the
Borrower’s Foreign Subsidiaries (a) whose total assets (when combined with the assets of such
Subsidiary’s Subsidiaries after eliminating intercompany obligations) at the last day of the most
recent Test Period were equal to or greater than 2.5% of Total Assets at such date or (b) whose
gross revenues (when combined with the revenues of such Subsidiary’s Subsidiaries after
eliminating intercompany obligations) for such Test Period were equal to or greater than 2.5% of
the consolidated gross revenues of the Borrower and the Restricted Subsidiaries for such period,
in each case determined in accordance with GAAP; provided that if, at any time and from time to
time after the Amendment No. 1 Effective Date, Foreign Subsidiaries not meeting the thresholds
set forth in clauses (a) or (b) comprise in the aggregate more than 5.0% of Total Assets as of the
end of the most recently ended fiscal quarter of the Borrower for which financial statements have
been delivered pursuant to Section 7.01 or more than 5.0% of the consolidated gross revenues of
the Borrower and the Restricted Subsidiaries for such Test Period, then the Borrower shall, not
later than forty-five (45) days after the date by which financial statements for such quarter are
required to be delivered pursuant to this Agreement (or such longer period as the Administrative
Agent may agree in its reasonable discretion), (i) designate in writing to the Administrative
Agent one or more of such Foreign Subsidiaries as “Material Foreign Subsidiaries” to the extent
required such that the foregoing condition ceases to be true and (ii) comply with the provisions
of the definition of “Collateral and Guarantee Requirement.”
39
“Material Subsidiary” means any Material Domestic Subsidiary or any Material Foreign
Subsidiary.
“Maturity Date” means the final maturity date specified in the applicable Incremental
Amendment or Replacement Amendment and with respect to any Extended Term Loans in
respect thereof shall be the final maturity date as specified in the applicable Extension Offer.
“Maximum Rate” has the meaning provided in Section 11.09.
“Microsemi Acquisition” has the meaning provided in the preliminary statements hereto.
“MLPF&S” means Merrill Lynch, Pierce, Fenner & Smith Incorporated, together with
its successors.
“Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.
“Multiemployer Plan” means a “multiemployer plan” within the meaning of
Section 4001(a)(3) of ERISA and subject to ERISA, to which a Credit Party or any ERISA
Affiliate makes or is obligated to make contributions, or during the preceding six plan years, has
made or been obligated to make contributions.
“Net Cash Proceeds” means:
(a) with respect to any Disposition or Involuntary Disposition, the aggregate
proceeds paid in cash or Cash Equivalents received by the Borrower or any Restricted
Subsidiary in connection with any Disposition or Involuntary Disposition, net of (i) direct
costs (including legal, accounting and investment banking fees, sales commissions and
underwriting discounts, consultant fees, and other customary fees and expenses incurred
in connection therewith), (ii) estimated taxes paid or payable as a result thereof, (iii)
amounts required to be applied to the repayment of Indebtedness (other than the
Indebtedness hereunder, Incremental Equivalent Debt and Refinancing Equivalent Debt)
secured by a Lien on the asset or assets the subject of such Disposition or Involuntary
Disposition (or, in the case of Net Cash Proceeds of any Foreign Disposition, amounts
applied during such period to the permanent repayment of any Indebtedness of the
Foreign Subsidiaries to the extent required by the terms of such Indebtedness), (iv) in the
case of any Disposition or Involuntary Disposition by a non-wholly owned Restricted
Subsidiary, the pro rata portion of the Net Cash Proceeds thereof (calculated without
regard to this clause (iv)) attributable to minority interests and not available for
distribution to or for the account of the Borrower or a wholly-owned Restricted
Subsidiary as a result thereof and (v) the amount of any reserve established in accordance
with GAAP against any adjustment to the sale price or any liabilities (other than any
taxes deducted pursuant to clause (ii) above) (x) related to any of the applicable assets
and (y) retained by the Borrower or any of the Restricted Subsidiaries including pension
and other post-employment benefit liabilities and liabilities related to environmental
matters or against any indemnification obligations (provided, however, the amount of any
subsequent reduction of such reserve or reversal (other than in connection with a payment
in respect of any such liability) shall be deemed to be Net Cash Proceeds of such
Disposition or Involuntary Disposition occurring on the date of such reduction or
40
reversal); provided, further, that no proceeds realized in a single transaction or series of
related transactions shall constitute Net Cash Proceeds unless (x) such proceeds shall
exceed $7,500,000 or (y) the aggregate net proceeds exceed $15,000,000 in any fiscal
year (and thereafter only net cash proceeds in excess of such amount shall constitute Net
Cash Proceeds under this clause (a)); and
(b) with respect to any incurrence or issuance of Indebtedness, the aggregate principal
amount actually received in cash by the Borrower or any Restricted Subsidiary in
connection therewith, net of direct costs (including legal, accounting and investment
banking fees, sales commissions and underwriting discounts).
For purposes hereof, “Net Cash Proceeds” includes any cash or Cash Equivalents
received upon the disposition of any non-cash consideration received by the Borrower or any
Restricted Subsidiary in any Disposition or Involuntary Disposition.
“Non-Consenting Lender” has the meaning provided in Section 11.13.
“Notes” means the Term Notes, the Revolving Credit Notes and the Swingline Notes.
“Obligations” means, without duplication, (a) all advances to, and debts, liabilities,
obligations, covenants and duties of, any Credit Party arising under any Credit Document or
otherwise with respect to any Loan or Letter of Credit, whether direct or indirect (including those
acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter
arising and including interest and fees that accrue after the commencement by or against any
Credit Party of any proceeding under any Debtor Relief Laws naming such Person as the debtor
in such proceeding, regardless of whether such interest and fees are allowed claims in such
proceeding (the “Loan Obligations”), (b) all obligations under any Swap Contract between the
Borrower or any Restricted Subsidiary, on the one hand, and any Agent, Lender or Affiliate of an
Agent or Lender or any Person that was an Agent, a Lender or an Affiliate of an Agent or Lender
on the date such transaction was entered into, on the other hand, to the extent such Swap
Contract is permitted hereunder, including the Swap Obligations between such parties but
excluding the Excluded Swap Obligations (the “Swap Contract Obligations”) and (c) all
obligations under any Treasury Management Agreement between the Borrower or any Restricted
Subsidiary, on the one hand, and any Agent, Lender or Affiliate of an Agent or Lender or any
Person that was an Agent, a Lender or an Affiliate of an Agent or Lender on the date such
transaction was entered into, on the other hand (the “Treasury Management Obligations”).
“OID” means original issue discount.
“Organization Documents” means, (a) with respect to any corporation, the certificate or
articles of incorporation and the bylaws (or equivalent or comparable constitutive documents
with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the
certificate or articles of formation or organization and the operating agreement; and (c) with
respect to any partnership, joint venture, trust or other form of business entity, the partnership,
joint venture or other applicable agreement of formation or organization and any agreement,
instrument, filing or notice with respect thereto filed in connection with its formation or
organization with the applicable Governmental Authority in the jurisdiction of its formation or
41
organization and, if applicable, any certificate or articles of formation or organization of such
entity.
“Other Taxes” means all present or future stamp, court, documentary, intangible,
recording, filing or similar Taxes arising from any payment made hereunder or under any other
Credit Document or from the execution, delivery or enforcement of, or otherwise with respect to,
this Credit Agreement or any other Credit Document, except any such Taxes imposed by a
jurisdiction with which the Lender has a connection described in clause (a)(ii) of the definition of
Excluded Taxes with respect to an assignment or grant of participation (other than assignment or
designation of a new office made pursuant to Section 3.06 or Section 11.13).
“Outstanding Amount” means (i) with respect to any Loans on any date, the aggregate
outstanding principal amount thereof after giving effect to any borrowings and prepayments or
repayments of such Loans occurring on such date; and (ii) with respect to any L/C Obligations
on any date, the Dollar Equivalent of the aggregate outstanding amount of such L/C Obligations
on such date after giving effect to any L/C Credit Extension occurring on such date and any other
changes in the aggregate amount of the L/C Obligations as of such date, including as a result of
any reimbursements by the Borrower of L/C Unreimbursed Amounts.
“Overnight Rate” means, for any day, (a) with respect to any amount denominated in
Dollars, the greater of (i) the Federal Funds Rate and (ii) an overnight rate determined by the
Administrative Agent, the L/C Issuer, or the Swingline Lender, as the case may be, in
accordance with banking industry rules on interbank compensation, and (b) with respect to any
amount denominated in an Alternative Currency, an overnight rate determined by the L/C Issuer,
as the case may be, in accordance with banking industry rules on interbank compensation.
“Participant” has the meaning provided in Section 11.06(d).
“Participant Register” has the meaning provided in Section 11.06(e).
“Participating Member State” means any member state of the European Union that
adopts or has adopted the Euro as its lawful currency in accordance with legislation of the
European Union relating to Economic and Monetary Union.
“Payment Conditions” means, at any time of determination, calculated on a Pro Forma
Basis giving effect to the transactions for which Payment Conditions need to be satisfied (and
including any transactions contemplated in connection therewith), (i) the Consolidated Total Net
Leverage Ratio does not exceed 2.75:1.00, (ii) the Borrower has minimum pro forma Liquidity
of at least $25,000,000 and (iii) no Event of Default has occurred and is continuing or would
result from such transactions.
“PBGC” means the Pension Benefit Guaranty Corporation.
“Pension Plan” means any “employee pension benefit plan” (as such term is defined in
Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA
and is sponsored or maintained by a Credit Party or any ERISA Affiliate or to which a Credit
Party or any ERISA Affiliate contributes or has an obligation to contribute, or in the case of a
42
multiple employer or other plan described in Section 4064(a) of ERISA, has made contributions
at any time during the immediately preceding five plan years.
“Perfection Certificate” means the perfection certificate substantially in the form of
Exhibit 1.01-1.
“Permitted Acquisition” means any Investment of the type described in Section 8.02(f).
“Permitted Liens” means Liens permitted pursuant to Section 8.01
“Permitted Refinancing” means, with respect to any Person, any modification,
refinancing, refunding, renewal or extension of any Indebtedness of such Person; provided that (i)
the principal amount (or accreted value, if applicable) thereof does not exceed the principal
amount (or accreted value, if applicable) of the Indebtedness so modified, refinanced, refunded,
renewed or extended except by an amount equal to any interest capitalized, any premium or other
reasonable amount paid, and fees and expenses reasonably incurred, in connection with such
modification, refinancing, refunding, renewal or extension; (ii) such modification, refinancing,
refunding, renewal or extension has a final maturity date equal to or later than the final maturity
date of, and has a weighted average life to maturity equal to or longer than the weighted average
life to maturity of, the Indebtedness being modified, refinanced, refunded, renewed or extended;
(iii) if the Indebtedness being modified, refinanced, refunded, renewed or extended is
subordinated in right of payment to the Obligations, such modification, refinancing, refunding,
renewal or extension is subordinated in right of payment to the Obligations on terms at least as
favorable, taken as a whole, to the Lenders as those contained in the documentation governing
the Indebtedness being modified, refinanced, refunded, renewed or extended; (iv) at the time of
such modification, refinancing, refunding, renewal or extension, no Event of Default shall have
occurred and be continuing; (v) if such Indebtedness being modified, refinanced, refunded,
renewed or extended is secured, the terms and conditions relating to collateral of any such
modified, refinanced, refunded, renewed or extended Indebtedness, taken as a whole, are not
materially less favorable to the Credit Parties or the Lenders than the terms and conditions with
respect to the collateral for the Indebtedness being modified, refinanced, refunded, renewed or
extended, taken as a whole (and the Liens on any Collateral securing any such modified,
refinanced, refunded, renewed or extended Indebtedness shall have the same (or lesser) priority
as the Indebtedness being modified, refinanced, refunded, renewed or extended relative to the
Liens on the Collateral securing the Obligations; (vi) the terms and conditions (excluding any
subordination, pricing, fees, rate floors, discounts, premiums and optional prepayment or
redemption terms) of any such modified, refinanced, refunded, renewed or extended
Indebtedness, taken as a whole, shall not be materially less favorable to the Credit Parties than
the Indebtedness being modified, refinanced, refunded, renewed or extended, except for
covenants or other provisions applicable only to periods after the Latest Maturity Date; and (vii)
such modification, refinancing, refunding, renewal or extension is incurred by the Person who is
the obligor on the Indebtedness being modified, refinanced, refunded, renewed or extended. Any
reference to a Permitted Refinancing in this Agreement or any other Credit Document shall be
interpreted to mean (a) a Permitted Refinancing of the subject Indebtedness and (b) any further
refinancing constituting a Permitted Refinancing of the Indebtedness resulting from a prior
Permitted Refinancing.
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“Person” means any natural person, corporation, limited liability company, trust, joint
venture, association, company, partnership, Governmental Authority or other entity.
“Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of
ERISA), including any Pension Plan (but excluding any Multiemployer Plan), that is subject to
ERISA and that is maintained or sponsored by a Credit Party or, with respect to any such plan
that is subject to Section 412 of the Internal Revenue Code or Title IV of ERISA, is maintained
or sponsored by any ERISA Affiliate.
“Platform” has the meaning provided in Section 7.02.
“Pre-Closing Equity Offering” means the public offering and sale by the Borrower of
Capital Stock consummated on April 13, 2016.
“Prime Rate” means the rate of interest in effect for such day as publicly announced
from time to time by Bank of America as its “prime rate.” The “prime rate” is a rate set by Bank
of America based upon various factors including Bank of America’s costs and desired return,
general economic conditions and other factors, and is used as a reference point for pricing some
loans, which may be priced at, above, or below such announced rate. Any change in the “prime
rate” announced by Bank of America shall take effect at the opening of business on the day
specified in the public announcement of such change.
“Pro Forma Basis,” “pro forma basis,” “Pro Forma Effect” and “pro forma effect”
means, for purposes of calculating compliance with the Financial Covenants or any other
financial ratio or tests (including in connection with Specified Transactions), such calculation
shall be made in accordance with Section 1.07.
“Pro Forma Financial Statements” means the pro forma balance sheet and related pro
forma statement of income of the Borrower and its Subsidiaries (including the Target) as of and
for the twelve-month period ending on the last day of the most recently completed four-fiscal
quarter period of the Borrower ended at least 45 days prior to the Closing Date, prepared after
giving effect to the Transactions as if the Transactions had occurred as of such date (in the case
of such balance sheet) or at the beginning of such period (in the case of the statement of income).
“Projections” has the meaning provided in Section 7.02(b).
“Property” means an interest of any kind in any property or asset, whether real, personal
or mixed, and whether tangible or intangible.
“Public Lender” has the meaning provided in Section 7.02.
“Qualified ECP Guarantor” means, in respect of any Swap Obligation, the Borrower
and each Guarantor that has total assets exceeding $10,000,000 at the time the relevant guaranty
or grant of the relevant security interest becomes effective with respect to such Swap Obligation
or such other person as constitutes an “eligible contract participant” under the Commodity
Exchange Act or any regulations promulgated thereunder and can cause another person to
qualify as an “eligible contract participant” at such time by entering into a keepwell under
Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
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“Qualified Stock” means any Capital Stock that is not Disqualified Stock.
“Quarterly Financial Statements” has the meaning specified in the definition of
Historical Financial Statements.
“Ratio Debt” has the meaning provided in Section 8.03(g).
“Refinanced Debt” has the meaning provided in Section 2.20(a).
“Refinancing” has the meaning provided in Section 5.01(l).
“Refinancing Amendment” has the meaning provided in Section 2.20(d).
“Refinancing Commitments” means, collectively, the Refinancing Revolving
Commitments and the Refinancing Term Commitments.
“Refinancing Equivalent Debt” has the meaning provided in Section 8.03(r).
“Refinancing Facilities” means (a) with respect to any Class of Revolving Credit
Commitments or Revolving Credit Loans, Refinancing Revolving Commitments or Refinancing
Revolving Loans and (b) with respect to any Class of Term Loans, Refinancing Term Loans.
“Refinancing Facility Closing Date” has the meaning provided in Section 2.20(c).
“Refinancing Lender” means a Refinancing Revolving Lender or a Refinancing Term
Lender, as applicable.
“Refinancing Loans” has the meaning provided in Section 2.20(b).
“Refinancing Revolving Commitments” means one or more new Classes of Revolving
Credit Commitments established pursuant to a Refinancing Amendment in accordance with
Section 2.20.
“Refinancing Revolving Lender” means any Lender providing a Refinancing Revolving
Loan or a Refinancing Revolving Commitment in accordance with Section 2.20.
“Refinancing Revolving Loan” has the meaning provided in Section 2.20(b).
“Refinancing Term Commitment” means the commitment of any Lender to provide
one or more new Classes of Refinancing Term Loans established pursuant to a Refinancing
Amendment in accordance with Section 2.20.
“Refinancing Term Lender” means any Lender providing a Refinancing Term Loan in
accordance with Section 2.20.
“Refinancing Term Loans” has the meaning provided in Section 2.20(b).
“Register” has the meaning provided in Section 11.06(c).
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“Related Parties” means, with respect to any Person, such Person’s Affiliates and the
partners, directors, officers, employees, agents, trustees and advisors of such Person and of such
Person’s Affiliates.
“Release” means any release, spill, emission, leaking, dumping, injection, pouring,
deposit, disposal, discharge, dispersal, leaching or migration into or through the Environment or
within, from or into any building, structure, facility or fixture.
“Reorganization Plan” has the meaning set forth in Section 11.06(k).
“Replaced Term Loans” has the meaning provided in Section 11.01.
“Replacement Term Loans” has the meaning provided in Section 11.01.
“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA,
other than events for which the notice period has been waived under applicable regulations.
“Request for Credit Extension” means (a) with respect to a Borrowing of Loans
(including Swingline Loans) or the conversion or continuation of Loans, a Loan Notice and (b)
with respect to an L/C Credit Extension, an L/C Application.
“Required Facility Lenders” means (a) with respect to the Term Loan Facility, the
Required Term Lenders and (ii) with respect to the Revolving Credit Facility, the Required
Revolving Credit Lenders.
“Required Lenders” means, as of any date of determination, Lenders having more than
50% of the Aggregate Commitments or, if the Commitments shall have expired or been
terminated, Lenders holding more than 50% of the aggregate principal amount of Loan
Obligations (including, in each case, the aggregate principal amount of each Revolving Credit
Lender’s risk participation and funded participation in L/C Obligations and Swingline Loans);
provided that the Commitments of, and the portion of the Loan Obligations held by, any
Defaulting Lender shall be excluded for purposes of making a determination of Required
Lenders.
“Required Revolving Credit Lenders” means, as of any date of determination,
Revolving Credit Lenders having more than 50% of the Aggregate Revolving Credit
Commitments or, if the Revolving Credit Commitments shall have expired or been terminated,
Revolving Credit Lenders holding more than 50% of the aggregate principal amount of
Revolving Credit Obligations (including, in each case, the aggregate principal amount of each
Revolving Credit Lender’s risk participation and funded participation in L/C Obligations and
Swingline Loans); provided that the Revolving Credit Commitments of, and the portion of
Revolving Credit Obligations held by, any Defaulting Lender shall be excluded for purposes of
making a determination of Required Revolving Credit Lenders.
“Required Term Lenders” means, as of any date of determination, Term Lenders
holding more than 50% of the Term Loan Facility on such date; provided that the portion of the
Term Loan Facility held by any Defaulting Lender shall be excluded for purposes of making a
determination of Required Term Lenders.
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“Resignation Effective Date” shall have the meaning provided in Section 10.06(a).
“Responsible Officer” means an officer functioning as the chief executive officer, chief
operating officer, president, vice president, chief financial officer, chief accounting officer, chief
legal officer, treasurer, assistant treasurer, controller or secretary of a Credit Party or such other
Person as is authorized in writing to act on behalf of such Credit Party or, solely for purposes of
notices given pursuant to Article II, any other officer or employee of the applicable Credit Party
designated in or pursuant to an agreement between the applicable Credit Party and the
Administrative Agent. Any document delivered hereunder that is signed by a Responsible
Officer of a Credit Party shall be conclusively presumed to have been authorized by all necessary
corporate, partnership and/or other action on the part of such Credit Party and such Responsible
Officer shall be conclusively presumed to have acted on behalf of such Credit Party. All
references to a “Responsible Officer” hereunder shall refer to a Responsible Officer of the
Borrower unless the context otherwise requires.
“Restricted Cash” means cash and Cash Equivalents which are listed as “Restricted” on
the consolidated balance sheet of the Borrower and its Restricted Subsidiaries.
“Restricted Payment” means any dividend or other distribution (whether in cash,
securities or other property) by the Borrower in respect of its Capital Stock, or any payment
(whether in cash, securities or other property) including any sinking fund payment or similar
deposit, for or on account of the purchase, redemption, retirement, defeasance, acquisition,
cancellation or termination of any Capital Stock of the Borrower or its Restricted Subsidiaries or
any option, warrant or other right to acquire any such Capital Stock of the Borrower or its
Restricted Subsidiaries; provided that a transaction with an Affiliate shall not be a Restricted
Payment pursuant to this definition solely because such transaction involves such Affiliate.
“Restricted Subsidiary” means any Subsidiary of the Borrower other than an
Unrestricted Subsidiary.
“Revaluation Date” means with respect to any Letter of Credit, each of the following:
(i) each date of issuance, amendment and/or extension of a Letter of Credit denominated in an
Alternative Currency, (ii) each date of any payment by the L/C Issuer under any Letter of Credit
denominated in an Alternative Currency, (iii) in the case of all Existing Letters of Credit
denominated in Alternative Currencies, the Closing Date, and (iv) such additional dates as the
Administrative Agent or the L/C Issuer shall determine. Once the Spot Rate is revalued by the
L/C Issuer it will advise the Borrower of the new Spot Rate.
“Revolving Credit Borrowing” means a borrowing consisting of Revolving Credit
Loans of the same Type and, in the case of Eurocurrency Rate Loans, having the same Interest
Period made by each of the Revolving Credit Lenders pursuant to Section 2.01(b).
“Revolving Credit Commitment” means, for each Revolving Credit Lender, the
commitment of such Revolving Credit Lender to make Revolving Credit Loans (and to share in
Revolving Credit Obligations) hereunder pursuant to Section 2.01(b) in an aggregate principal
amount at any one time outstanding not to exceed the amount set forth opposite such Revolving
Credit Lender’s name on Schedule 2.01 under the caption “Revolving Credit Commitment” or
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opposite such caption in the Assignment and Assumption pursuant to which such Revolving
Credit Lender becomes a party hereto, as applicable, as such amount may be adjusted from time
to time in accordance with this Credit Agreement.
“Revolving Credit Facility” means, at any time, the aggregate amount of Revolving
Credit Commitments at such time.
“Revolving Credit Lender” means, at any time, any Lender that has a Revolving Credit
Commitment at such time.
“Revolving Credit Loan” has the meaning provided in Section 2.01(b).
“Revolving Credit Note” means a promissory note made by the Borrower in favor of a
Revolving Credit Lender evidencing Revolving Credit Loans made by such Revolving Credit
Lender, substantially in the form of Exhibit 2.13-1.
“Revolving Credit Obligations” means the Revolving Credit Loans, the L/C Obligations
and the Swingline Loans.
“Revolving Termination Date” means the date that is five years following the
Amendment No. 1 Effective Date; provided that if such date is not a Business Day, the
Revolving Termination Date shall be the immediately preceding Business Day.
“Rupees” means the lawful currency of India.
“S&P” means Standard & Poor’s Financial Services LLC, a subsidiary of The McGraw-
Hill Companies, Inc., and any successor thereto.
“SEC” means the Securities and Exchange Commission, or any Governmental Authority
succeeding to any of its principal functions.
“Secured Obligations” has the meaning provided in the Security Agreement.
“Secured Parties” has the meaning provided in the Security Agreement.
“Securities Act” means the Securities Act of 1933, as amended.
“Security Agreement” means, collectively, (a) the security agreement dated as of the
Closing Date given by the Credit Parties party thereto, as grantors, to the Collateral Agent to
secure the Obligations substantially in the form of Exhibit 1.01-2 and (b) any other security
agreement in favor of the Collateral Agent to secure all or some portion of the Obligations that
may be given by any Person pursuant to the terms hereof.
“Solvency Certificate” means a Solvency Certificate substantially in the form of Exhibit
5.01(j).
“Solvent” means with respect to the Borrower and its Restricted Subsidiaries that
(a) after giving effect to the transactions contemplated to occur on the Amendment No. 1
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Effective Date both (i) the fair value of the assets of the Borrower and its Restricted Subsidiaries,
on a consolidated basis, exceeds, on a consolidated basis, their debts and liabilities, subordinated,
contingent or otherwise and (ii) the present fair salable value of the property of the Borrower and
its Restricted Subsidiaries, on a consolidated basis, is greater than the amount that will be
required to pay the probable liability, on a consolidated basis, of their debts and other liabilities,
subordinated, contingent or otherwise, as such debts and other liabilities become absolute and
matured, (b) after giving effect to the incurrence of the initial Credit Extension under this Credit
Agreement on the Amendment No. 1 Effective Date and the consummation of the transactions
contemplated to occur on the Amendment No. 1 Effective Date, the Borrower and its Restricted
Subsidiaries, on a consolidated basis, are able to pay their debts and liabilities, subordinated,
contingent or otherwise, as such liabilities become absolute and matured, and (c) the incurrence
of the initial Credit Extension under this Credit Agreement on the Amendment No. 1 Effective
Date and the consummation of the transactions contemplated to occur on the Amendment No. 1
Effective Date, on a Pro Forma Basis, the Borrower and its Restricted Subsidiaries, on a
consolidated basis, are not engaged in, and are not about to engage in, business for which they
have unreasonably small capital. For purposes of this definition, the amount of any contingent
liability at any time shall be computed as the amount that would reasonably be expected to
become an actual and matured liability.
“Specified Representations” means the representations with respect to the Borrower and
the Guarantors set forth in Section 6.01(a), Section 6.01(b)(ii), Section 6.02(a) and (b), Section
6.04, Section 6.20, Sections 6.21(a)(ii), 6.21(a)(iii) (only with respect to the use of proceeds of
the Loans made on the Closing Date) and 6.21(b) (only with respect to the use of proceeds of the
Loans made on the Closing Date), Section 6.15, and Section 6.18 (subject to Permitted Liens and
the proviso at the end of Section 5.01(d)).
“Specified Transaction” means (v) any Investment that results in a Person becoming a
Restricted Subsidiary, (w) any designation of a Subsidiary as a Restricted Subsidiary or an
Unrestricted Subsidiary, (x) any Permitted Acquisition or other Acquisition constituting an
Investment permitted under Section 8.02, (y) any Disposition that results in a Restricted
Subsidiary ceasing to be a Subsidiary of the Borrower and any Disposition of a business unit,
line of business or division of the Borrower or a Restricted Subsidiary, in each case whether by
merger, consolidation, amalgamation or otherwise or (z) any incurrence or repayment of
Indebtedness, Restricted Payment, Incremental Revolving Commitment, Incremental Revolving
Loan or Incremental Term Loan, in each case, that by the terms of this Agreement requires a
financial ratio or test to be calculated on a “Pro Forma Basis” or after giving “Pro Forma Effect.”
“Spot Rate” for a currency means the rate determined by the L/C Issuer to be the rate
quoted by the L/C Issuer as the spot rate for the purchase by the L/C Issuer of such currency with
another currency through its principal foreign exchange trading office at approximately 11:00
a.m. on the date two (2) Business Days prior to the date as of which the foreign exchange
computation is made; provided that the L/C Issuer may obtain such spot rate from another
financial institution designated by the L/C Issuer if the L/C Issuer does not have as of the date of
determination a spot buying rate for any such currency; and provided, further, that the L/C Issuer
may use such spot rate quoted on the date as of which the foreign exchange computation is made
in the case of any Letter of Credit denominated in an Alternative Currency.
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“Sterling” means the lawful currency of the United Kingdom.
“Subsequent Transaction” has the meaning provided in Section 1.07(e).
“Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability
company or other business entity (i) of which a majority of the shares of securities or other
interests having ordinary voting power for the election of directors or other governing body
(other than securities or interests having such power only by reason of the happening of a
contingency) are at the time beneficially owned by such Person or (ii) the management of which
is otherwise controlled, directly or indirectly, through one or more intermediaries, by such
Person, to the extent such entity’s financial results are required to be included in such Person’s
consolidated financial statements under GAAP. Unless otherwise provided, “Subsidiary” shall
refer to a Subsidiary of the Borrower.
“Successor Company” has the meaning provided in Section 8.04(d).
“Support Obligations” means, as to any Person, (a) any obligation, contingent or
otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any
Indebtedness or other obligation payable or performable by another Person (the “primary
obligor”) in any manner, whether directly or indirectly, and including any obligation of such
Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or
services for the purpose of assuring the obligee in respect of such Indebtedness or other
obligation of the payment or performance of such Indebtedness or other obligation, (iii) to
maintain working capital, equity capital or any other financial statement condition or liquidity or
level of income or cash flow of the primary obligor so as to enable the primary obligor to pay
such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any
other manner the obligee in respect of such Indebtedness or other obligation of the payment or
performance thereof or to protect such obligee against loss in respect thereof (in whole or in part),
or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation of any
other Person, whether or not such Indebtedness or other obligation is assumed by such Person (or
any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien).
The amount of any Support Obligations shall be deemed to be an amount equal to the stated or
determinable amount of the related primary obligation, or portion thereof, in respect of which
such Support Obligation is made or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof as determined by the guaranteeing Person in good faith.
“Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity swaps, commodity options,
forward commodity contracts, equity or equity index swaps or options, bond or bond price or
bond index swaps or options or forward bond or forward bond price or forward bond index
transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor
transactions, collar transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other similar transactions or any
combination of any of the foregoing (including any options to enter into any of the foregoing),
whether or not any such transaction is governed by or subject to any master agreement, and (b)
any and all transactions of any kind, and the related confirmations, that are subject to the terms
50
and conditions of, or governed by, any form of master agreement published by the International
Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement,
or any other master agreement (any such master agreement, together with any related schedules,
a “Master Agreement”), including any such obligations or liabilities under any Master
Agreement.
“Swap Obligation” means, with respect to any Guarantor, any obligation to pay or
perform under any agreement, contract or transaction that constitutes a “swap” within the
meaning of section 1a(47) of the Commodity Exchange Act.
“Swap Termination Value” means, in respect of any one or more Swap Contracts, after
taking into account the effect of any legally enforceable netting agreement relating to such Swap
Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and
termination values determined in accordance therewith, such termination values, and (b) for any
date prior to the date referenced in clause (a), the amounts determined as the mark-to-market
values for such Swap Contracts, as determined based upon one or more mid-market or other
readily available quotations provided by any recognized dealer in such Swap Contracts (which
may include a Lender or any Affiliate of a Lender).
“Swingline Borrowing” means a borrowing of a Swingline Loan pursuant to
Section 2.01(d).
“Swingline Lender” means Bank of America, in its capacity as the Swingline Lender,
together with any successor in such capacity.
“Swingline Loan” has the meaning provided in Section 2.01(d).
“Swingline Note” means the promissory note made by the Borrower in favor of the
Swingline Lender, evidencing Swingline Loans made by the Swingline Lender, substantially in
the form of Exhibit 2.13-2.
“Swingline Sublimit” has the meaning provided in Section 2.01(c).
“Target” has the meaning provided in the preliminary statements hereto.
“Target Material Adverse Effect” means a “Material Adverse Effect” as defined in the
Acquisition Agreement.
“Taxes” means all present or future taxes, levies, imposts, duties, deductions,
withholdings (including backup withholding), assessments, fees or other charges imposed by any
Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Term Borrowing” means a borrowing consisting of simultaneous Term Loans of the
same Type and, in the case of Eurocurrency Rate Loans, having the same Interest Period.
“Term Commitment” means, for each Term Lender, the commitment of such Term
Lender to make Term Loans hereunder.
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“Term Loan” means any Incremental Term Loan, Refinancing Term Loan, Extended
Term Loan or Replacement Term Loan, as the context may require
“Term Loan Facility” means, at any time after the Amendment No. 1 Effective Date, the
aggregate principal amount of the Term Loans of all Term Lenders outstanding at such time.
“Term Lender” means any Lender that holds Term Loans or Term Commitments at such
time.
“Term Note” means a promissory note made by the Borrower in favor of a Term Lender
evidencing Term Loans made by such Term Lender, substantially in the form of Exhibit 2.13-3.
“Test Period” means, for any date of determination under this Agreement, the four
consecutive fiscal quarters of the Borrower most recently ended as of such date of determination.
“Title Agent” has the meaning provided in the definition of Real Estate Collateral
Requirements.
“Total Assets” means the total assets of the Borrower and the Restricted Subsidiaries on
a consolidated basis in accordance with GAAP, as shown on the most recent balance sheet of the
Borrower delivered pursuant to Section 7.01(a) or (b) (and, in the case of any determination
relating to any transaction, on a Pro Forma Basis including any property or assets being acquired
or disposed of in connection therewith) or, for the period prior to the time any such statements
are so delivered pursuant to Section 7.01(a) or (b), the Pro Forma Financial Statements.
“Transactions” means, collectively, (a) the Microsemi Acquisition and the other related
transactions contemplated by the Acquisition Agreement, together with, for the avoidance of
doubt, the funding of any ordinary course working capital needs and working capital adjustments
under the Acquisition Agreement, (b) the Pre-Closing Equity Offering, (c) the Refinancing, (d)
the entering into of this Credit Agreement and the making of the Loans and other Credit
Extensions hereunder.
“Transaction Expenses” means any fees or expenses incurred or paid by the Borrower
or any of its Subsidiaries in connection with the Transactions (including expenses in connection
with close-out fees in connection with the termination of hedging transactions, if any, and
payments to officers, employees and directors as change of control payments, severance
payments, special or retention bonuses and charges for repurchase or rollover of, or
modifications to, stock options and/or restricted stock), this Agreement and the other Credit
Documents and the transactions contemplated hereby and thereby.
“Treasury Management Agreement” means any agreement governing the provision of
treasury or cash management services, including deposit accounts, overnight draft, credit cards,
debit cards, p-cards (including purchasing cards and commercial cards), funds transfer,
automated clearinghouse, zero balance accounts, returned check concentration, controlled
disbursement, lockbox, account reconciliation and reporting and trade finance services and other
cash management services.
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“Type” means, with respect to any Revolving Credit Loan, its character as a Base Rate
Loan or a Eurocurrency Rate Loan.
“UCC” means the Uniform Commercial Code in effect in any applicable jurisdiction
from time to time.
“Unfunded Pension Liability” means the excess of a Pension Plan’s benefit liabilities
under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets,
determined in accordance with the assumptions used for funding the Pension Plan for purposes
of Section 430 of the Internal Revenue Code for the applicable plan year.
“United States” or “U.S.” means the United States of America.
“Unrestricted Subsidiary” means any Subsidiary of the Borrower designated by the
Board of Directors of the Borrower as an Unrestricted Subsidiary pursuant to Section 7.14
subsequent to the Closing Date.
“Weighted Average Life to Maturity” means, when applied to any Indebtedness at any
date, the number of years obtained by dividing: (i) the sum of the products obtained by
multiplying (a) the amount of each then remaining scheduled installment, sinking fund, serial
maturity or other required scheduled payments of principal, including payment at final scheduled
maturity, in respect thereof, by (b) the number of years (calculated to the nearest one-twelfth)
that will elapse between such date and the making of such payment; by (ii) the then outstanding
principal amount of such Indebtedness; provided that the effects of any prepayments made on
such Indebtedness shall be disregarded in making such calculation.
“Wholly Owned Subsidiary” means, with respect to any direct or indirect Subsidiary of
any Person, that 100% of the Capital Stock with ordinary voting power issued by such
Subsidiary (other than directors’ qualifying shares and investments by foreign nationals
mandated by applicable Law) is beneficially owned, directly or indirectly, by such Person.
“Write-Down and Conversion Powers” means, with respect to any EEA Resolution
Authority, the write-down and conversion powers of such EEA Resolution Authority from time
to time under the Bail-In Legislation for the applicable EEA Member Country, which write-
down and conversion powers are described in the EU Bail-In Legislation Schedule.
“Yen” means the lawful currency of Japan.
Section 1.02. Interpretive Provisions. With reference to this Credit Agreement and each
other Credit Document, unless otherwise specified herein or in such other Credit Document:
(a) The definitions of terms herein shall apply equally to the singular and
plural forms of the terms defined. Whenever the context may require, any pronoun shall include
the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and
“including” shall be deemed to be followed by the phrase “without limitation.” The word “will”
shall be construed to have the same meaning and effect as the word “shall.” Unless the context
requires otherwise, (i) any definition of or reference to any agreement, instrument or other
document (including any Organization Document) shall be construed as referring to such
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agreement, instrument or other document as from time to time amended, supplemented or
otherwise modified (subject to any restrictions on such amendments, supplements or
modifications set forth herein or in any other Credit Document), (ii) any reference herein to any
Person shall be construed to include such Person’s successors and assigns, (iii) the words
“hereto,” “herein,” “hereof” and “hereunder,” and words of similar import when used in any
Credit Document, shall be construed to refer to such Credit Document in its entirety and not to
any particular provision thereof, (iv) all references in a Credit Document to “Articles,”
“Sections,” “Exhibits” and “Schedules” shall be construed to refer to articles and sections of, and
exhibits and schedules to, the Credit Document in which such references appear, (v) any
reference to any law shall include all statutory and regulatory provisions consolidating,
amending, replacing or interpreting such law and any reference to any law or regulation shall,
unless otherwise specified, refer to such law or regulation as amended, modified or
supplemented from time to time, and (vi) the words “asset” and “property” shall be construed to
have the same meaning and effect and to refer to any and all assets and property of whatever
kind, real and personal, tangible and intangible, including cash, securities, accounts and contract
rights.
(b) In the computation of periods of time from a specified date to a later
specified date, the word “from” means “from and including”; the words “to” and “until” each
mean “to but excluding”; and the word “through” means “to and including.”
(c) Section headings herein and in the other Credit Documents are included
for convenience of reference only and shall not affect the interpretation of this Credit Agreement
or any other Credit Document.
(d) For purposes of determining compliance with any Section of Article 8 at
any time, in the event that any Lien, Investment, Indebtedness (whether at the time of incurrence
or upon application of all or a portion of the proceeds thereof) (subject to the third to last
paragraph in Section 8.03), Disposition, Restricted Payment, Affiliate transaction, Contractual
Obligation or prepayment of Indebtedness meets the criteria of one or more than one of the
categories of transactions permitted pursuant to any clause of such Sections, such transaction (or
portion thereof) at any time shall be permitted under one or more of such clauses as determined
by the Borrower in its sole discretion at such time.
Section 1.03. Accounting Terms and Provisions. All accounting terms not specifically
or completely defined herein shall be construed in conformity with, and all financial data
(including financial ratios and other financial calculations) required to be submitted pursuant to
this Credit Agreement shall be prepared in conformity with, GAAP applied on a consistent basis,
as in effect from time to time. Notwithstanding any changes in GAAP after the Closing Date,
any lease of the Credit Parties and their Subsidiaries that would be characterized as an operating
lease under GAAP in effect on the Closing Date (whether such lease is entered into before or
after the Closing Date) shall not constitute Indebtedness, Attributable Indebtedness or a
Capitalized Lease under this Agreement or any Credit Document as a result of such changes in
GAAP.
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(a) Notwithstanding any provision herein to the contrary, determinations of (i)
the applicable pricing level under the definition of “Applicable Percentage” and (ii) compliance
with the Financial Covenants shall be made on a Pro Forma Basis.
(b) If at any time after the Closing Date any change in GAAP or in the
consistent application thereof would affect the operation of any provision set forth in any Credit
Document, and either the Borrower or the Required Lenders requests an amendment to eliminate
the effect of any such change, regardless whether such request is given before or after such
change in GAAP or in the consistent application thereof, then until such request shall have been
withdrawn or such provision amended in accordance herewith, (i) such provision shall continue
to be interpreted in accordance with GAAP prior to such change therein and (ii) the Borrower
will provide, or cause to be provided, to the Administrative Agent and the Lenders, financial
statements and related certificates and documents required hereunder or hereby as reasonably
requested setting forth a reconciliation between calculations of such ratios or requirements made
before and after giving effect to such changes in GAAP.
(c) With respect to any subject transaction that was permitted under any
provision of this Agreement by reference to a basket based on a percentage of Total Assets, the
permissibility of such subject transaction shall not be affected by any subsequent fluctuations in
Total Assets.
Section 1.04. Rounding. Any financial ratios required to be maintained pursuant to this
Credit Agreement shall be calculated by dividing the appropriate component by the other
component, carrying the result to one place more than the number of places by which such ratio
is expressed herein and rounding the result up or down to the nearest number (with a rounding-
up if there is no nearest number).
Section 1.05. Times of Day. Unless otherwise specified, all references herein to times of
day shall be references to Eastern time (daylight or standard, as applicable).
Section 1.06. Letter of Credit Amounts. Unless otherwise specified herein all references
herein to the amount of a Letter of Credit at any time shall be deemed to be the Dollar Equivalent
of the stated amount of such Letter of Credit in effect at such time; provided, however, that with
respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related
thereto, provides for one or more automatic increases in the stated amount thereof, the amount of
such Letter of Credit shall be deemed to be the Dollar Equivalent of the maximum stated amount
of such Letter of Credit after giving effect to all such increases, whether or not such maximum
stated amount is in effect at such time.
Section 1.07. Pro Forma Calculations.
(a) Notwithstanding anything to the contrary herein, financial ratios and tests,
including the Consolidated Cash Interest Coverage Ratio and the Consolidated Total Net
Leverage Ratio and compliance with covenants determined by reference to Total Assets, shall be
calculated (whether or not the applicable provision references that such calculation is to be done
on a “Pro Forma Basis” or giving “Pro Forma Effect” or any other similar phrase) in the manner
prescribed by this Section 1.07; provided that notwithstanding anything to the contrary herein,
when calculating (A) any such ratio for the purpose of the definition of Applicable Percentage,
55
any mandatory prepayment provision hereunder or compliance with Section 8.11, the events set
forth in Sections 1.07(b), 1.07(c), 1.07(d) and 1.07(e) below that occurred subsequent to the end
of the applicable Test Period shall not be given pro forma effect and (B) any such ratio or test for
purposes of the incurrence of any Indebtedness, cash and Cash Equivalents resulting from the
incurrence of any such Indebtedness shall be excluded from the pro forma calculation of any
applicable ratio or test. In addition, whenever a financial ratio or test is to be calculated on a Pro
Forma Basis, the reference to the “Test Period” for purposes of calculating such financial ratio or
test shall be deemed to be a reference to, and shall be based on, the most recently ended Test
Period for which financial statements of the Borrower have been delivered pursuant to Section
7.01(a) or (b) (it being understood that for purposes of determining pro forma compliance with
Section 8.11, if no Test Period with an applicable level cited in Section 8.11 has passed, the
applicable level shall be the level for the first Test Period cited in Section 8.11 with an indicated
level).
(b) For purposes of calculating any financial ratio or test or compliance with
any covenant determined by reference to Total Assets, Specified Transactions (and the
incurrence or repayment of any Indebtedness in connection therewith) that have been
consummated (i) during the applicable Test Period or (ii) if applicable as described in clause (a)
above, subsequent to such Test Period and prior to or simultaneously with the event for which
the calculation of any such ratio is made, in either case, shall be calculated on a pro forma basis
assuming that all such Specified Transactions (and any increase or decrease in Total Assets and
the component financial definitions used therein attributable to any Specified Transaction) had
occurred on the first day of the applicable Test Period (or in the case of Total Assets, on the last
day of the applicable Test Period). If since the beginning of any applicable Test Period any
Person that subsequently became a Restricted Subsidiary or was merged, amalgamated or
consolidated with or into the Borrower or any of its Restricted Subsidiaries since the beginning
of such Test Period shall have made any Specified Transaction that would have required
adjustment pursuant to this Section 1.07, then such financial ratio or test (or Total Assets) shall
be calculated to give pro forma effect thereto in accordance with this Section 1.07.
(c) Whenever pro forma effect is to be given to a Specified Transaction, the
pro forma calculations shall be made in good faith by a responsible financial or accounting
officer of the Borrower and may include, for the avoidance of doubt, the amount of “run-rate”
cost savings, operating expense reductions and synergies resulting from or relating to any
Specified Transaction (including the Transactions) which is being given pro forma effect that
have been realized or are expected to be realized and for which the actions necessary to realize
such cost savings, operating expense reductions and synergies are taken, committed to be taken
or with respect to which substantial steps have been taken or are expected to be taken (in the
good faith determination of the Borrower) (calculated on a pro forma basis as though such cost
savings, operating expense reductions and synergies had been realized on the first day of such
period and as if such cost savings, operating expense reductions and synergies were realized
during the entirety of such period and “run-rate” means the full recurring benefit for a period
that is associated with any action taken, committed to be taken or with respect to which
substantial steps have been taken or are expected to be taken net of the amount of actual benefits
realized during such period from such actions, and any such adjustments shall be included in the
initial pro forma calculations of any financial ratios or tests (and in respect of any subsequent pro
forma calculations in which such Specified Transaction is given pro forma effect) and during any
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applicable subsequent Test Period in which the effects thereof are expected to be realized)
relating to such Specified Transaction; provided that (A) such amounts are reasonably
identifiable and factually supportable in the good faith judgment of the Borrower, (B) such
actions are taken, committed to be taken or with respect to which substantial steps have been
taken or are expected to be taken no later than twelve (12) months after the date of such
Specified Transaction, and (C) no amounts shall be added pursuant to this clause (c) to the extent
duplicative of any amounts that are otherwise added back in computing Consolidated EBITDA
(or any other components thereof), whether through a pro forma adjustment or otherwise, with
respect to such period; provided, further, that any increase to Consolidated EBITDA as a result
of cost savings, operating expense reductions and synergies pursuant to this Section 1.07(c) shall
be subject to the limitations set forth in the final proviso of clause (vii) of the definition of
Consolidated EBITDA.
(d) In the event that the Borrower or any Restricted Subsidiary incurs
(including by assumption or guarantees) or repays (including by redemption, repayment,
retirement or extinguishment) any Indebtedness included in the calculations of the Consolidated
Cash Interest Coverage Ratio, the Consolidated Total Net Leverage Ratio or any other financial
ratio or test subsequent to the end of the applicable Test Period and prior to or simultaneously
with the event for which the calculation of any such ratio or test is made, then the Consolidated
Cash Interest Coverage Ratio, the Consolidated Total Net Leverage Ratio or other financial ratio
or test, as applicable, shall be calculated giving pro forma effect to such incurrence or repayment
of Indebtedness, to the extent required, as if the same had occurred on the last day of the
applicable Test Period (except in the case of the Consolidated Cash Interest Coverage Ratio or
other similar interest or fixed charge test or ratio, in which case such incurrence, assumption,
guarantee, redemption, repayment, retirement or extinguishment will be given effect as if the
same had occurred on the first day of the applicable Test Period); provided that Indebtedness
incurred, repaid or prepaid under any revolving credit facility shall be excluded from the
application of this clause (c) unless such incurrence, repayment or prepayment (a) shall be in
connection, or substantially concurrent, with a Specified Transaction or (b) in the case of a
repayment or prepayment, such Indebtedness has been permanently repaid and not replaced.
(e) In connection with any action being taken solely in connection with a
Limited Condition Transaction, for purposes of:
(i) determining compliance with any provision of this Agreement
(other than the Financial Covenants) which requires the calculation of any
financial ratio or test, including the Consolidated Total Net Leverage Ratio and
Consolidated Cash Interest Coverage Ratio; or
(ii) testing availability under baskets set forth in this Agreement
(including baskets measured as a percentage of Total Assets and baskets subject
to Default and Event of Default conditions));
in each case, at the option of the Borrower (the Borrower’s election to exercise such option in
connection with any Limited Condition Transaction, an “LCT Election”), the date of
determination of whether any such action is permitted hereunder (or any requirement or
condition therefor is complied with or satisfied (including as to the absence of any continuing
57
Default or Event of Default) shall be deemed to be the date the definitive agreements for such
Limited Condition Transaction are entered into (the “LCT Test Date”), and if, after giving Pro
Forma Effect to the Limited Condition Transaction and the other transactions to be entered into
in connection therewith (including any incurrence of Indebtedness and the use of proceeds
thereof) as if they had occurred at the beginning of the most recent Test Period ending prior to
the LCT Test Date, the Borrower or any of its Restricted Subsidiaries would have been permitted
to take such action on the relevant LCT Test Date in compliance with such ratio, test or basket
(and any related requirements and conditions), such ratio, test or basket (and any related
requirements and conditions) shall be deemed to have been complied with (or satisfied). For the
avoidance of doubt, if the Borrower has made an LCT Election and any of the ratios, tests,
baskets or requirements or conditions for which compliance was determined or tested as of the
LCT Test Date are exceeded (or not satisfied) as a result of fluctuations in any such ratio, test or
basket (or due to other intervening events in the case of other requirements or conditions),
including due to fluctuations in Consolidated EBITDA or Total Assets of the Borrower or the
Person subject to such Limited Condition Transaction, at or prior to the consummation of the
relevant transaction or action, such baskets, tests, ratios or requirements or conditions will not be
deemed to have been exceeded (or not satisfied) as a result of such fluctuations (or intervening
events). If the Borrower has made an LCT Election for any Limited Condition Transaction, then
in connection with any calculation of any ratio, test or basket availability with respect to the
incurrence of Indebtedness or Liens, the making of Restricted Payments, the making of any
Investment permitted hereunder, mergers, the conveyance, lease or other transfer of all or
substantially all of the assets of the Borrower, the prepayment, redemption, purchase, defeasance
or other satisfaction of Indebtedness, or the designation of an Unrestricted Subsidiary (a
“Subsequent Transaction”) following the relevant LCT Test Date and prior to the earlier of the
date on which such Limited Condition Transaction is consummated or the date that the definitive
agreement or irrevocable notice for such Limited Condition Transaction is terminated or expires
without consummation of such Limited Condition Transaction, for purposes of determining
whether such Subsequent Transaction is permitted under this Agreement, any such ratio, test or
basket shall be required to be satisfied on a Pro Forma Basis (i) assuming such Limited
Condition Transaction and other transactions in connection therewith (including any incurrence
of Indebtedness and the use of proceeds thereof) have been consummated and (ii) assuming such
Limited Condition Transaction and other transactions in connection therewith (including any
incurrence of Indebtedness and the use of proceeds thereof) have not been consummated.
(f) If any Indebtedness bears a floating rate of interest and is being given pro
forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the
date of the event for which the calculation of the Consolidated Cash Interest Coverage Ratio is
made had been the applicable rate for the entire period (taking into account any interest hedging
arrangements applicable to such Indebtedness); provided that, in the case of repayment of any
Indebtedness, to the extent actual interest related thereto was included during all or any portion
of the applicable Test Period, the actual interest may be used for the applicable portion of such
Test Period. Interest on a Capitalized Lease shall be deemed to accrue at an interest rate
reasonably determined by a Responsible Officer of the Borrower to be the rate of interest
implicit in such Capitalized Lease in accordance with GAAP. Interest on Indebtedness that may
optionally be determined at an interest rate based upon a factor of a prime or similar rate, a
London interbank offered rate, or other rate, shall be determined to have been based upon the
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rate actually chosen, or if none, then based upon such optional rate chosen as the Borrower or
Restricted Subsidiary may designate.
Section 1.08. Timing of Payment and Performance. When the payment of any
obligation or the performance of any covenant, duty or obligation is stated to be due or
performance required on a day which is not a Business Day, the date of such payment (other than
as described in the definition of “Interest Period”) or performance shall extend to the
immediately succeeding Business Day and such extension shall be reflected in the computation
of interest or fees, as the case may be.
Section 1.09. Currency Generally. For purposes of determining compliance with
Sections 8.01, 8.02, 8.03 and 8.06 with respect to any amount of Indebtedness or Investment in a
currency other than Dollars, no Default shall be deemed to have occurred solely as a result of
changes in rates of currency exchange occurring after the time such Indebtedness or Investment
is incurred (so long as such Indebtedness or Investment, at the time incurred, made or acquired,
was permitted hereunder).
For purposes of calculating the Consolidated Total Net Leverage Ratio or Consolidated
Cash Interest Coverage Ratio in connection with determining compliance with the Financial
Covenants, or otherwise calculating the Consolidated Total Net Leverage Ratio on any date of
determination, amounts denominated in a currency other than Dollars will be translated into
Dollars at the currency exchange rates used in the Borrower’s latest financial statements
delivered pursuant to Section 7.01(a) or (b), and will, in the case of Indebtedness, reflect the
currency translation effects, determined in accordance with GAAP, of Swap Contracts permitted
hereunder for currency exchange risks with respect to the applicable currency in effect on the
date of determination of the Dollar Equivalent of such Indebtedness.
Section 1.10. Exchange Rates; Currency Equivalents.
(a) The L/C Issuer, as applicable, shall determine the Spot Rates as of each
Revaluation Date to be used for calculating Dollar Equivalent amounts of L/C Credit Extensions
and Outstanding Amounts denominated in Alternative Currencies. Such Spot Rates shall
become effective as of such Revaluation Date and shall be the Spot Rates employed in
converting any amounts between the applicable currencies until the next Revaluation Date to
occur. Except for purposes of financial statements delivered by Credit Parties hereunder or
calculating financial covenants hereunder or except as otherwise provided herein, the applicable
amount of any currency (other than Dollars) for purposes of the Credit Documents shall be such
Dollar Equivalent amount as so determined by the L/C Issuer.
(b) Wherever in this Agreement in the issuance, amendment or extension of a
Letter of Credit, an amount, such as a required minimum or multiple amount, is expressed in
Dollars, but such Letter of Credit is denominated in an Alternative Currency, such amount shall
be the relevant Alternative Currency Equivalent of such Dollar amount (rounded to the nearest
unit of such Alternative Currency, with 0.5 of a unit being rounded upward), as determined by
the L/C Issuer, as the case may be.
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Section 1.11. Additional Alternative Currencies.
(a) The Borrower may from time to time request that Letters of Credit be
issued in a currency other than those specifically listed in the definition of “Alternative
Currency”; provided that such requested currency is a lawful currency (other than Dollars) that is
readily available and freely transferable and convertible into Dollars. In the case of any such
request, such request shall be subject to the approval of the L/C Issuer.
(b) Any such request shall be made to the Administrative Agent not later than
11:00 a.m., ten (10) Business Days prior to the date of the desired L/C Credit Extension (or such
other time or date as may be agreed by the L/C Issuer in its sole discretion). The Administrative
Agent shall promptly notify the L/C Issuer thereof. The L/C Issuer shall notify the
Administrative Agent, not later than 11:00 a.m., five (5) Business Days after receipt of such
request whether it consents, in its sole discretion, to the issuance of Letters of Credit in such
requested currency.
(c) Any failure by the L/C Issuer to respond to such request within the time
period specified in the preceding sentence shall be deemed to be a refusal by the L/C Issuer to
permit the Letters of Credit to be issued in such requested currency. If the L/C Issuer consents to
the issuance of Letters of Credit in such requested currency, the Administrative Agent shall so
notify the Borrower and to the extent the definition of Eurocurrency Rate reflects the appropriate
interest rate for such currency or has been amended to reflect the appropriate rate for such
currency, such currency shall thereupon be deemed for all purposes to be an Alternative
Currency, for purposes of any Letter of Credit issuances. If the Administrative Agent shall fail
to obtain consent to any request for an additional currency under this Section 1.11, the
Administrative Agent shall promptly so notify the Borrower.
Section 1.12. Cumulative Equity Credit Transactions. If more than one action occurs on
any given date the permissibility of the taking of which is determined hereunder by reference to
the amount of the Cumulative Equity Credit immediately prior to the taking of such action, the
permissibility of the taking of each such action shall be determined independently and in no
event may any two or more such actions be treated as occurring simultaneously.
Section 1.13. References to Agreements, Laws, Etc. Unless otherwise expressly
provided herein, (a) references to Organization Documents, agreements (including the Credit
Documents) and other contractual instruments shall be deemed to include all subsequent
amendments, restatements, amendment and restatements, extensions, supplements and other
modifications thereto, but only to the extent that such amendments, restatements, amendment
and restatements, extensions, supplements and other modifications are permitted by the Credit
Documents; and (b) references to any Law (including by succession of comparable successor
laws) shall include all statutory and regulatory provisions consolidating, amending, replacing,
supplementing or interpreting such Law.
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ARTICLE 2
COMMITMENTS AND CREDIT EXTENSIONS
Section 2.01. Commitments. Subject to the terms and conditions set forth herein:
(a) [Reserved].
(b) Revolving Credit Loans. During the Commitment Period, each Revolving
Credit Lender severally agrees to make revolving credit loans (the “Revolving Credit Loans”)
to the Borrower in Dollars, from time to time, on any Business Day; provided that after giving
effect to any such Revolving Credit Loan, (i) with regard to the Revolving Credit Lenders
collectively, the Outstanding Amount of Revolving Credit Obligations shall not exceed the
Aggregate Revolving Credit Commitments (as the Aggregate Revolving Credit Commitments
may be increased or decreased in accordance with the provisions hereof, the “Aggregate
Revolving Credit Committed Amount”) and (ii) with regard to each Revolving Credit Lender
individually, such Revolving Credit Lender’s Aggregate Commitment Percentage of the
Outstanding Amount of Revolving Credit Obligations shall not exceed its Revolving Credit
Commitment. Revolving Credit Loans may consist of Base Rate Loans, Eurocurrency Rate
Loans, or a combination thereof, as the Borrower may request, and may be repaid and
reborrowed in accordance with the provisions hereof.
(c) Letters of Credit. During the Commitment Period, (i) the L/C Issuer
agrees (A) to issue Letters of Credit denominated in Dollars or in one or more Alternative
Currencies for the account of the Borrower or any of its Restricted Subsidiaries on any Business
Day, (B) to amend or extend Letters of Credit previously issued hereunder, and (C) to honor
drawings under Letters of Credit; and (ii) the Revolving Credit Lenders severally agree to
purchase from the L/C Issuer a participation interest in the Existing Letters of Credit and Letters
of Credit issued hereunder in an amount equal to such Revolving Credit Lender’s Aggregate
Commitment Percentage thereof; provided that (x) the Outstanding Amount of L/C Obligations
shall not exceed $25,000,000 (as such amount may be decreased in accordance with the
provisions hereof, the “L/C Sublimit”), (y) the Outstanding Amount of Revolving Credit
Obligations shall not exceed the Aggregate Revolving Credit Committed Amount, and (z) with
regard to each Revolving Credit Lender individually, such Revolving Credit Lender’s Aggregate
Commitment Percentage of the Outstanding Amount of Revolving Credit Obligations shall not
exceed its Revolving Credit Commitment. Subject to the terms and conditions hereof, the
Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the
Borrower may obtain Letters of Credit to replace Letters of Credit that have expired or that have
been drawn upon and reimbursed. Existing Letters of Credit shall be deemed to have been
issued hereunder and shall be subject to and governed by the terms and conditions hereof.
(d) Swingline Loans. During the Commitment Period, the Swingline Lender
agrees to make revolving credit loans (the “Swingline Loans”) to the Borrower in Dollars on
any Business Day; provided that (i) the Outstanding Amount of Swingline Loans shall not
exceed $30,000,000 (as such amount may be decreased in accordance with the provisions hereof,
the “Swingline Sublimit”) and (ii) with respect to the Revolving Credit Lenders collectively, the
Outstanding Amount of Revolving Credit Obligations shall not exceed the Aggregate Revolving
Credit Committed Amount; provided further that no Swingline Loans may be made on the
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Amendment No. 1 Effective Date. Swingline Loans shall be comprised solely of Base Rate
Loans, and may be repaid and reborrowed in accordance with the provisions hereof.
Immediately upon the making of a Swingline Loan, each Revolving Credit Lender shall be
deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swingline
Lender a participation interest in such Swingline Loan in an amount equal to the product of such
Revolving Credit Lender’s Aggregate Commitment Percentage thereof; provided that the
participation interest shall not be funded except on demand as provided in Section 2.04(b)(ii).
Section 2.02. Borrowings, Conversions and Continuations.
(a) Each Borrowing, each conversion of Loans from one Type to the other,
and each continuation of Eurocurrency Rate Loans shall be made upon the Borrower’s
irrevocable notice to the Administrative Agent by (A) telephone, or (B) a Loan Notice; provided
that any telephonic notice by the Borrower must be confirmed promptly by delivery to the
Administrative Agent of a Loan Notice; provided, further, that the notice in connection with any
Acquisition or other transaction permitted under this Agreement, may be conditioned on the
closing of such Acquisition or other transaction, as applicable. Each such notice must be
received by the Administrative Agent not later than noon, (A) with respect to Eurocurrency Rate
Loans or any conversion of Eurocurrency Rate Loans to Base Rate Loans, three Business Days
prior to the requested date thereof and (B) with respect to Base Rate Loans, on the requested date
of, any Borrowing, conversion or continuation.
(b) Each telephonic notice by the Borrower pursuant to this Section 2.02 must
be confirmed promptly by delivery to the Administrative Agent of a written Loan Notice,
appropriately completed and signed by a Responsible Officer of the Borrower. Except as
provided in Sections 2.03(c) and 2.04(b) each Borrowing, conversion or continuation shall be in
a principal amount of (x) with respect to Eurocurrency Rate Loans, $1,000,000 or a whole
multiple of $1,000,000 in excess thereof or (y) with respect to Base Rate Loans, $500,000 or a
whole multiple of $100,000 in excess thereof. Each Loan Notice (whether telephonic or written)
shall specify (i) whether such request is for a Term Borrowing, Revolving Credit Borrowing, a
conversion or a continuation, (ii) the requested date of such Borrowing, conversion or
continuation (which shall be a Business Day), (iii) the principal amount of Loans to be borrowed,
converted or continued, (iv) the Class and Type of Loans to be borrowed, converted or continued
and (v) if applicable, the duration of the Interest Period with respect thereto. If the Borrower
fails to specify a Type of Loan in a Loan Notice or if the Borrower fails to give a timely notice
requesting a conversion or continuation, then the applicable Loans shall be made as, or converted
to, Eurocurrency Rate Loans with an Interest Period of one month. If the Borrower requests a
Borrowing of, conversion to, or continuation of Eurocurrency Rate Loans in any Loan Notice,
but fails to specify an Interest Period, the Interest Period will be deemed to be one month.
(c) Following its receipt of a Loan Notice, the Administrative Agent shall
promptly notify each Appropriate Lender of the amount of its pro rata share of the applicable
Loans. In the case of a Borrowing, each Appropriate Lender shall make the amount of its Loan
available to the Administrative Agent in immediately available funds at the Administrative
Agent’s Office not later than 2:00 p.m., on the Business Day specified in the applicable Loan
Notice. Upon satisfaction of the applicable conditions set forth in Section 5.02 (and, on the
Closing Date, Section 5.01), the Administrative Agent shall make all funds so received available
62
to the Borrower in like funds as received by the Administrative Agent either by (i) crediting the
account of the Borrower on the books of the Administrative Agent with the amount of such funds
or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and
reasonably acceptable to) the Administrative Agent by the Borrower; provided, however, that if,
on the date of any Revolving Credit Borrowing there are Swingline Loans or LC Borrowings
outstanding, then the proceeds of such Borrowing shall be applied, first, to the payment in full of
any such L/C Borrowing, second, to the payment in full of any such Swingline Loans, and third,
to the Borrower as provided above.
(d) Except as otherwise provided herein, without the consent of the applicable
Required Facility Lenders, (i) a Eurocurrency Rate Loan may be continued or converted only on
the last day of an Interest Period for such Eurocurrency Rate Loan and (ii) any conversion into,
or continuation as, a Eurocurrency Rate Loan may be made only if the conditions to Credit
Extensions in Section 5.02 have been satisfied. During the existence of a Default or Event of
Default, (x) no Loan may be requested as, converted to or continued as a Eurocurrency Rate
Loan and (y) at the request of the applicable Required Facility Lenders, any outstanding
Eurocurrency Rate Loan shall be converted to a Base Rate Loan on the last day of the Interest
Period with respect thereto.
(e) The Administrative Agent shall promptly notify the Borrower and the
Appropriate Lenders of the interest rate applicable to any Interest Period for Eurocurrency Rate
Loans upon determination of such interest rate. The determination of the Eurocurrency Rate by
the Administrative Agent shall be conclusive in the absence of manifest error. At any time that
Base Rate Loans are outstanding, the Administrative Agent shall notify the Borrower and the
Appropriate Lenders of any change in Bank of America’s prime rate used in determining the
Base Rate promptly following the public announcement of such change.
(f) After giving effect to all Borrowings, all conversions of Loans from one
Type to the other, and all continuations of Loans as the same Type, there shall not be more than
ten Interest Periods in effect with respect to the Facilities; provided that after the establishment
of any new Class of Loans pursuant to an Incremental Amendment, Refinancing Amendment or
Extension Amendment, the number of Interest Periods otherwise permitted by this
Section 2.02(f) shall increase by three (3) Interest Periods for each applicable Class so
established.
Section 2.03. Additional Provisions with Respect to Letters of Credit.
(a) Obligation to Issue or Amend.
(i) The L/C Issuer shall not issue any Letter of Credit if:
(A) except as otherwise provided in Section 2.03(b)(iii), the
expiry date would occur more than (I) in the case of a standby Letter of
Credit, one year from the date of issuance or (II) in the case of a
commercial Letter of Credit, 180 days from the date of issuance, in each
case unless the Required Revolving Credit Lenders and the L/C Issuer
shall have otherwise given their approval;
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(B) the expiry date of any such Letter of Credit would occur
after the L/C Expiration Date, unless the Revolving Credit Lenders and the
L/C Issuer shall have otherwise given their approval or the Outstanding
Amount of L/C Obligations in respect of such requested Letter of Credit
has been Cash Collateralized or back-stopped by a letter of credit
reasonably satisfactory to the applicable L/C Issuer; provided that once
such Letter of Credit is fully Cash Collateralized, the other Lenders are
released from liability as a Participant; or
(C) any such Letter of Credit is to be used for purposes other
than those permitted under Section 7.11, unless the Required Lenders shall
have otherwise given their approval.
(ii) The L/C Issuer shall not be under any obligation to issue any Letter
of Credit if:
(A) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin or restrain the
L/C Issuer from issuing such Letter of Credit, or any Law applicable to the
L/C Issuer or any request or directive (whether or not having the force of
law) from any Governmental Authority with jurisdiction over the L/C
Issuer shall prohibit, or request that the L/C Issuer refrain from, the
issuance of letters of credit generally or such Letter of Credit in particular
or shall impose upon the L/C Issuer with respect to such Letter of Credit
any restriction, reserve or capital requirement (for which the L/C Issuer is
not otherwise compensated hereunder) not in effect on the Closing Date,
or shall impose upon the L/C Issuer any unreimbursed loss, cost or
expense that was not applicable on the Closing Date and that the L/C
Issuer in good faith deems material to it;
(B) the issuance of such Letter of Credit would violate any Law
or one or more policies of the L/C Issuer;
(C) except as otherwise agreed by the L/C Issuer and the
Administrative Agent, such Letter of Credit is in an initial stated amount
less than $100,000, in the case of a commercial Letter of Credit, or
$200,000, in the case of a standby Letter of Credit;
(D) such Letter of Credit is to be denominated in a currency
other than Dollars or an Alternative Currency;
(E) such Letter of Credit contains provisions for automatic
reinstatement of the stated amount after any drawing thereunder;
(F) any Revolving Credit Lender is at such time a Defaulting
Lender, unless Cash Collateral or other Adequate Assurance shall have
been provided, including arrangements to eliminate the L/C Issuer’s actual
or potential Fronting Exposure (after giving effect to Section 2.17(a)(vii))
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with respect to the Defaulting Lender arising from either the Letter of
Credit then proposed to be issued or that Letter of Credit and all other L/C
Obligations as to which the L/C Issuer has actual or potential Fronting
Exposure, as it may elect in its sole discretion; or
(G) except with respect to any Letter of Credit to be issued in
Dollars, the L/C Issuer does not as of the issuance date of the requested
Letter of Credit issue Letters of Credit in the requested currency.
(iii) The L/C Issuer shall not amend any Letter of Credit if the L/C
Issuer would not be permitted at such time to issue such Letter of Credit in its
amended form under the terms hereof.
(iv) The L/C Issuer shall not be under any obligation to amend any
Letter of Credit if:
(A) the L/C Issuer would have no obligation at such time to
issue such Letter of Credit in its amended form under the terms hereof; or
(B) the beneficiary of such Letter of Credit does not accept the
proposed amendment to such Letter of Credit.
(v) The L/C Issuer shall act on behalf of the Revolving Credit Lenders
with respect to any Letter of Credit issued by it and the documents associated
therewith. The L/C Issuer shall have all of the benefits and immunities (A)
provided to the Administrative Agent in Article 10 with respect to any acts taken
or omissions suffered by the L/C Issuer in connection with Letters of Credit
issued by them or proposed to be issued by it and Issuer Documents pertaining to
such Letters of Credit as fully as if the term “Administrative Agent” as used in
Article 10 included the L/C Issuer with respect to such acts or omissions, and (B)
as additionally provided herein with respect to the L/C Issuer.
(b) Procedures for Issuance and Amendment; Auto-Extension Letters of
Credit.
(i) Each Letter of Credit shall be issued or amended, as the case may
be, upon the request of the Borrower delivered to the L/C Issuer (with a copy to
the Administrative Agent) in the form of an L/C Application appropriately
completed and signed by a Responsible Officer of the Borrower. L/C
Applications must be received by the L/C Issuer and the Administrative Agent not
later than 12:00 p.m. at least two Business Days (or, in the case of a Letter of
Credit denominated in an Alternative Currency, three Business Days) prior to the
proposed issuance date or date of amendment, as the case may be, or such later
date and time as the L/C Issuer and the Administrative Agent may agree in a
particular instance in their sole discretion. In the case of a request for an initial
issuance of a Letter of Credit, such L/C Application shall specify in form and
detail reasonable satisfactory to the L/C Issuer: (A) the proposed issuance date of
the requested Letter of Credit (which shall be a Business Day); (B) the amount
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and currency thereof and in the absence of specification of currency shall be
deemed a request for a Letter of Credit denominated in Dollars; (C) the expiry
date thereof; (D) the name and address of the beneficiary thereof; (E) the
documents to be presented by such beneficiary in case of any drawing thereunder;
(F) the full text of any certificate to be presented by such beneficiary in case of
any drawing thereunder; and (G) such other matters as the L/C Issuer may
reasonably require. In the case of a request for an amendment of any outstanding
Letter of Credit, such L/C Application shall specify in form and detail reasonable
satisfactory to the L/C Issuer (I) the Letter of Credit to be amended; (II) the
proposed date of amendment thereof (which shall be a Business Day); (III) the
nature of the proposed amendment; and (IV) such other matters as the L/C Issuer
may reasonably require. Additionally, the Borrower shall furnish to the L/C
Issuer and the Administrative Agent such other documents and information
pertaining to such requested Letter of Credit issuance or amendment, including
any Issuer Documents, as the L/C Issuer or the Administrative Agent may
reasonably require.
(ii) Promptly after receipt of any L/C Application, the L/C Issuer will
confirm (by telephone or in writing) with the Administrative Agent that the
Administrative Agent has received a copy of such L/C Application from the
Borrower and, if not, the L/C Issuer will provide the Administrative Agent with a
copy thereof. Unless the L/C Issuer has received written notice from the
Administrative Agent, any Lender or any Credit Party, at least one Business Day
prior to the requested date of issuance or amendment of the applicable Letter of
Credit, that one or more applicable conditions contained in Article 5 shall not then
be satisfied, then, subject to the terms and conditions hereof, the L/C Issuer shall,
on the requested date, issue a Letter of Credit for the account of the Borrower (or
any of its Restricted Subsidiaries) or enter into the applicable amendment, as the
case may be, in each case in accordance with the L/C Issuer’s usual and
customary business practices. Immediately upon the issuance of each Letter of
Credit, each Revolving Credit Lender shall be deemed to, and hereby irrevocably
and unconditionally agrees to, purchase from the L/C Issuer a risk participation in
such Letter of Credit in an amount equal to such Revolving Credit Lender’s
Aggregate Commitment Percentage thereof.
(iii) If the Borrower so requests in an L/C Application, the L/C Issuer
shall agree to issue a standby Letter of Credit that has automatic extension
provisions (each, an “Auto-Extension Letter of Credit”); provided that any such
Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such
extension at least once in each twelve-month period (commencing with the date of
issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof
not later than a day (the “Non-Extension Notice Date”) in each such twelve-
month period to be agreed upon at the time such Letter of Credit is issued. Unless
otherwise directed by the L/C Issuer, the Borrower shall not be required to make a
specific request to the L/C Issuer for any such extension. Once an Auto-
Extension Letter of Credit has been issued, the Revolving Credit Lenders shall be
deemed to have authorized (but may not require) the L/C Issuer to permit the
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extension of such Letter of Credit at any time to an expiry date not later than the
L/C Expiration Date; provided, however, that the L/C Issuer shall not permit any
such extension if (1) the L/C Issuer has determined that it would not be permitted
or would have no obligation at such time to issue such Letter of Credit in its
revised form (as extended) under the terms hereof (by reason of the provisions of
Section 2.03(a) or otherwise), or (2) it has received notice (which may be by
telephone or in writing) on or before the day that is five Business Days before the
Non-Extension Notice Date (x) from the Administrative Agent that the Required
Revolving Credit Lenders have elected not to permit such extension or (y) from
the Administrative Agent, any Revolving Credit Lender or the Borrower that one
or more of the applicable conditions specified in Section 5.02 is not then satisfied,
and in each case directing the L/C Issuer not to permit such extension.
(iv) If the Borrower so requests in any L/C Application, the L/C Issuer
may, in its sole and absolute discretion, agree to issue a Letter of Credit that
permits the automatic reinstatement of all or a portion of the stated amount
thereof after any drawing thereunder (each, an “Auto-Reinstatement Letter of
Credit”). Unless otherwise directed by the L/C Issuer, the Borrower shall not be
required to make a specific request to the L/C Issuer to permit such reinstatement.
Once an Auto-Reinstatement Letter of Credit has been issued, except as provided
in the following sentence, the Revolving Credit Lenders shall be deemed to have
authorized (but may not require) the L/C Issuer to reinstate all or a portion of the
stated amount thereof in accordance with the provisions of such Letter of Credit.
Notwithstanding the foregoing, if such Auto-Reinstatement Letter of Credit
permits the L/C Issuer to decline to reinstate all or any portion of the stated
amount thereof after a drawing thereunder by giving notice of such non-
reinstatement within a specified number of days after such drawing (the “Non-
Reinstatement Deadline”), the L/C Issuer shall not permit such reinstatement if
it has received a notice (which may be by telephone or in writing) on or before the
day that is five Business Days before the Non-Reinstatement Deadline (A) from
the Administrative Agent that the Required Facility Lenders have elected not to
permit such reinstatement or (B) from the Administrative Agent, any Revolving
Credit Lender or the Borrower that one or more of the applicable conditions
specified in Section 5.02 is not then satisfied (treating such reinstatement as an
L/C Credit Extension for purposes of this clause) and, in each case, directing the
L/C Issuer not to permit such reinstatement.
(v) Promptly after its delivery of any Letter of Credit or any
amendment to a Letter of Credit to an advising bank with respect thereto or to the
beneficiary thereof, the L/C Issuer will also deliver to the Borrower and the
Administrative Agent a true and complete copy of such Letter of Credit or
amendment.
(vi) The L/C Issuer will provide to the Administrative Agent, at least
quarterly and more frequently upon request of the Administrative Agent, a
summary report on the Letters of Credit it has issued, including, among other
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things, on whose account each Letter of Credit is issued and each Letter of
Credit’s beneficiary, face amount and expiry date.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon any drawing under any Letter of Credit, the L/C Issuer shall
notify the Borrower and the Administrative Agent thereof. In the case of a Letter
of Credit denominated in an Alternative Currency, the Borrower shall reimburse
the L/C Issuer in such Alternative Currency, unless (A) the L/C Issuer (at its
option) shall have specified in such notice that it will require reimbursement in
Dollars, or (B) in the absence of any such requirement for reimbursement in
Dollars, the Borrower shall have notified the L/C Issuer promptly following
receipt of the notice of drawing that the Borrower will reimburse the L/C Issuer in
Dollars. In the case of any such reimbursement in Dollars of a drawing under a
Letter of Credit denominated in an Alternative Currency, the L/C Issuer shall
notify the Borrower of the Dollar Equivalent of the amount of the drawing
promptly following the determination thereof. Not later than 12:00 p.m. on the
Business Day following any payment by the L/C Issuer under a Letter of Credit to
be reimbursed in Dollars, or the Applicable Time on the date of any payment by
the L/C Issuer under a Letter of Credit to be reimbursed in an Alternative
Currency (such date, an “L/C Honor Date”), the Borrower shall reimburse the
L/C Issuer in Dollars in an amount equal to the amount of such drawing and in the
applicable currency. In the event that (A) a drawing denominated in an
Alternative Currency is to be reimbursed in Dollars pursuant to the second
sentence in this Section 2.03(c)(i) and (B) the Dollar amount paid by the
Borrower, whether on or after the Honor Date, shall not be adequate on the date
of that payment to purchase in accordance with normal banking procedures a sum
denominated in the Alternative Currency equal to the drawing, the Borrower
agrees, as a separate and independent obligation, to indemnify the L/C Issuer for
the loss resulting from its inability on that date to purchase the Alternative
Currency in the full amount of the drawing. The L/C Issuer shall notify the
Administrative Agent of any failure of the Borrower to reimburse a drawn Letter
of Credit. If the Borrower fails to so reimburse the L/C Issuer by such time, the
Administrative Agent shall promptly notify each Revolving Credit Lender of the
L/C Honor Date, the amount of the unreimbursed drawing (expressed in Dollars
in the amount of the Dollar Equivalent thereof in the case of a Letter of Credit
denominated in an Alternative Currency) (the “L/C Unreimbursed Amount”),
and the amount of such Revolving Credit Lender’s Aggregate Commitment
Percentage thereof. In such event, the Borrower shall be deemed to have
requested a Revolving Credit Borrowing of Base Rate Loans to be disbursed on
the L/C Honor Date in an amount equal to the L/C Unreimbursed Amount,
without regard to the minimum and multiples specified in Section 2.02(b) for the
principal amount of Base Rate Loans, the amount of the unutilized portion of the
Aggregate Revolving Credit Committed Amount or the conditions set forth in
Section 5.02. Any notice given by the L/C Issuer or the Administrative Agent
pursuant to this Section 2.03(c)(i) may be given by telephone if immediately
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confirmed in writing; provided that the lack of such an immediate confirmation
shall not affect the conclusiveness or binding effect of such notice.
(ii) Each Revolving Credit Lender shall upon any notice pursuant to
Section 2.03(c)(i) make funds available to the Administrative Agent (and the
Administrative Agent shall apply Cash Collateral provided for this purpose) for
the account of the L/C Issuer, in Dollars, at the Administrative Agent’s Office for
Dollar-denominated payments in an amount equal to its Aggregate Commitment
Percentage of the L/C Unreimbursed Amount not later than 1:00 p.m. on the
Business Day specified in such notice by the Administrative Agent, whereupon,
subject to the provisions of Section 2.03(c)(iii), each Revolving Credit Lender
that so makes funds available shall be deemed to have made a Revolving Credit
Loan that is a Base Rate Loan to the Borrower in such amount. The
Administrative Agent shall remit the funds so received to the L/C Issuer in
Dollars.
(iii) With respect to any L/C Unreimbursed Amount that is not fully
refinanced by a Revolving Credit Borrowing of Base Rate Loans for any reason,
the Borrower shall be deemed to have incurred from the L/C Issuer an L/C
Borrowing in the amount of the L/C Unreimbursed Amount that is not so
refinanced, which L/C Borrowing shall be due and payable on demand (together
with interest) and shall bear interest at the Default Rate. In such event, each
Revolving Credit Lender’s payment to the Administrative Agent for the account
of the L/C Issuer pursuant to Section 2.03(c)(ii) shall be deemed payment in
respect of its participation in such L/C Borrowing and shall constitute an L/C
Advance from such Revolving Credit Lender in satisfaction of its participation
obligation under this Section 2.03(c)(ii).
(iv) Until each Revolving Credit Lender funds its Revolving Credit
Loan or L/C Advance pursuant to this Section 2.03(c) to reimburse the L/C Issuer
for any amount drawn under any Letter of Credit, interest in respect of such
Revolving Credit Lender’s Aggregate Commitment Percentage of such amount
shall be solely for the account of the L/C Issuer.
(v) Each Revolving Credit Lender’s obligation to make Revolving
Credit Loans or L/C Advances, to reimburse the L/C Issuer for amounts drawn
under Letters of Credit, as contemplated by this Section 2.03(c), shall be absolute
and unconditional and shall not be affected by any circumstance, including (A)
any setoff, counterclaim, recoupment, defense or other right that such Revolving
Credit Lender may have against the L/C Issuer, the Borrower or any other Person
for any reason whatsoever, (B) the occurrence or continuance of a Default or
Event of Default, (C) non-compliance with the conditions set forth in Section
5.02, or (D) any other occurrence, event or condition, whether or not similar to
any of the foregoing; provided that the L/C Issuer shall have complied with the
applicable provisions of Section 2.03(b)(ii). No such making of an L/C Advance
shall relieve or otherwise impair the obligation of the Borrower to reimburse the
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L/C Issuer for the amount of any payment made by the L/C Issuer under any
Letter of Credit, together with interest as provided herein.
(vi) If any Revolving Credit Lender fails to make available to the
Administrative Agent for the account of the L/C Issuer any amount required to be
paid by such Revolving Credit Lender pursuant to the foregoing provisions of this
Section 2.03(c) by the time specified in Section 2.03(c)(ii), the L/C Issuer shall be
entitled to recover from such Revolving Credit Lender (acting through the
Administrative Agent), on demand, such amount with interest thereon for the
period from the date such payment is required to the date on which such payment
is immediately available to the L/C Issuer at a rate per annum equal to the
applicable Overnight Rate from time to time in effect. A certificate of the L/C
Issuer submitted to any Revolving Credit Lender (through the Administrative
Agent) with respect to any amounts owing under this clause (vi) shall be
conclusive absent manifest error.
(d) Repayment of Participations.
(i) At any time after the L/C Issuer has made a payment under any
Letter of Credit and has received from any Revolving Credit Lender such
Revolving Credit Lender’s L/C Advance in respect of such payment in
accordance with Section 2.03(c), if the Administrative Agent receives for the
account of the L/C Issuer any payment in respect of the related L/C Unreimbursed
Amount or interest thereon (whether directly from the Borrower or otherwise,
including proceeds of Cash Collateral applied thereto by the Administrative
Agent), the Administrative Agent will distribute to such Revolving Credit Lender
its Aggregate Commitment Percentage thereof (appropriately adjusted, in the case
of interest payments, to reflect the period of time during which such Revolving
Credit Lender’s L/C Advance was outstanding) in Dollars or in the same currency
as those received by the Administrative Agent.
(ii) If any payment received by the Administrative Agent for the
account of the L/C Issuer pursuant to Section 2.03(c)(ii) is required to be returned
under any of the circumstances described in Section 11.05 (including pursuant to
any settlement entered into by the L/C Issuer in its discretion), each Revolving
Credit Lender shall pay to the Administrative Agent for the account of the L/C
Issuer its pro rata share thereof on demand of the Administrative Agent, plus
interest thereon from the date of such demand to the date such amount is returned
by such Revolving Credit Lender, at a rate per annum equal to the applicable
Overnight Rate from time to time in effect. The obligations of the Lenders under
this clause shall survive the payment in full of the Obligations and the termination
of this Credit Agreement.
(e) Obligations Absolute. The obligation of the Borrower to reimburse the
L/C Issuer for each drawing under each Letter of Credit and to repay each L/C Borrowing shall
be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms
of this Credit Agreement under all circumstances, including the following:
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(i) any lack of validity or enforceability of such Letter of Credit, this
Credit Agreement or any other Credit Document;
(ii) the existence of any claim, counterclaim, setoff, defense or other
right that the Borrower or any of its Subsidiaries may have at any time against any
beneficiary or any transferee of such Letter of Credit (or any Person for whom
any such beneficiary or any such transferee may be acting), the L/C Issuer or any
other Person, whether in connection with this Credit Agreement, the transactions
contemplated hereby or by such Letter of Credit or any agreement or instrument
relating thereto, or any unrelated transaction;
(iii) any draft, demand, certificate or other document presented under
such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in
any respect or any statement therein being untrue or inaccurate in any respect; or
any loss or delay in the transmission or otherwise of any document required in
order to make a drawing under such Letter of Credit;
(iv) any payment by the L/C Issuer under such Letter of Credit against
presentation of a draft or certificate that does not strictly comply with the terms of
such Letter of Credit; or any payment made by the L/C Issuer under such Letter of
Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-
possession, assignee for the benefit of creditors, liquidator, receiver or other
representative of or successor to any beneficiary or any transferee of such Letter
of Credit, including any arising in connection with any proceeding under any
Debtor Relief Law;
(v) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including any other circumstance that might
otherwise constitute a defense available to, or a discharge of, the Borrower or any
Guarantor; or
(vi) any adverse change in the relevant exchange rates or in the
availability of the relevant Alternative Currency to the Borrower or any
Subsidiary or in the relevant currency markets generally.
The Borrower shall promptly examine a copy of each Letter of Credit and each
amendment thereto that is delivered to the Borrower and, in the event of any claim of non-
compliance with the Borrower’s instructions or other irregularity, the Borrower will immediately
notify the L/C Issuer. The Borrower shall be conclusively deemed to have waived any such
claim against the L/C Issuer and its correspondents unless such notice is given as aforesaid.
(f) Role of the L/C Issuer in such Capacity. Each Lender and the Borrower
agrees that, in paying any drawing under a Letter of Credit, the L/C Issuer shall not have any
responsibility to obtain any document (other than any sight draft, certificates and documents
expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy
of any such document or the authority of the Person executing or delivering any such document.
None of the L/C Issuer, the Administrative Agent, any of their respective Related Parties nor any
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correspondent, participant or assignee of the L/C Issuer shall be liable to any Lender for (i) any
action taken or omitted in connection herewith at the request or with the approval of the
Revolving Credit Lenders or the Required Revolving Credit Lenders, as applicable; (ii) any
action taken or omitted in the absence of gross negligence, bad faith or willful misconduct; or
(iii) the due execution, effectiveness, validity or enforceability of any document or instrument
related to any Letter of Credit or Issuer Document. The Borrower hereby assumes all risks of the
acts or omissions of any beneficiary or transferee with respect to the Borrower’s use of any
Letter of Credit; provided, however, that this assumption is not intended to, and shall not,
preclude the Borrower’s pursuing such rights and remedies as the Borrower may have against the
beneficiary or transferee at law or under any other agreement. None of the L/C Issuer, the
Administrative Agent, any of their respective Related Parties nor any correspondent, participant
or assignee of the L/C Issuer, shall be liable or responsible for any of the matters described in
clauses (i) through (v) of Section 2.03(e); provided, however, that anything in such clauses to the
contrary notwithstanding, the L/C Issuer shall be liable to the Borrower, to the extent, but only to
the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the
Borrower that the Borrower proves were caused by the L/C Issuer’s willful misconduct, bad faith
or gross negligence as determined by a court of competent jurisdiction by a final and non-
appealable judgment or the L/C Issuer’s willful failure to pay under any Letter of Credit after the
presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the
terms and conditions of a Letter of Credit. In furtherance and not in limitation of the foregoing,
the L/C Issuer may accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or information to the contrary,
and the L/C Issuer shall not be responsible for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or
ineffective for any reason. The L/C Issuer may send a Letter of Credit or conduct any
communication to or from the beneficiary via the Society for Worldwide Interbank Financial
Telecommunication (“SWIFT”) message or overnight courier, or any other commercially
reasonable means of communicating with a beneficiary.
(g) Applicability of ISP and UCP. Unless otherwise expressly agreed by the
L/C Issuer and the Borrower when a Letter of Credit is issued (including any such agreement
applicable to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby
Letter of Credit, and (ii) the rules of the Uniform Customs and Practice for Documentary Credits,
as most recently published by the International Chamber of Commerce at the time of issuance,
shall apply to each commercial Letter of Credit.
(h) Letters of Credit Issued for Restricted Subsidiaries. Notwithstanding that
a Letter of Credit issued or outstanding hereunder is in support of any obligations of, or is for the
account of, any other Restricted Subsidiary, the Borrower shall be obligated to reimburse the L/C
Issuer for any and all drawings under such Letter of Credit. The Borrower hereby acknowledges
that the issuance of Letters of Credit for the account of any other Restricted Subsidiary inures to
the benefit of the Borrower, and that the Borrower’s business derives substantial benefits from
the businesses of such other Restricted Subsidiaries.
(i) Letter of Credit Fees. The Borrower shall pay Letter of Credit fees as set
forth in Section 2.09(b).
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(j) Conflict with Issuer Documents. In the event of any conflict between the
terms hereof and the terms of any Issuer Document, the terms hereof shall control.
Section 2.04. Additional Provisions with Respect to Swingline Loans.
(a) Borrowing Procedures.
(i) Swingline Loans. Each Swingline Borrowing shall be made upon
the Borrower’s irrevocable notice to the Swingline Lender and the Administrative
Agent (A) telephone, or (B) a Loan Notice; provided that any telephonic notice by
the Borrower must be confirmed promptly by delivery to the Administrative
Agent of a Loan Notice. Each such notice must be received by the Swingline
Lender and the Administrative Agent not later than 2:00 p.m. on the requested
borrowing date, and shall specify (a) the amount to be borrowed, which shall be a
minimum of $100,000, and (b) the requested borrowing date, which shall be a
Business Day. Each such telephonic notice must be confirmed promptly by
delivery to the Swingline Lender and the Administrative Agent of a written Loan
Notice, appropriately completed and signed by a Responsible Officer of the
Borrower. Promptly after receipt by the Swingline Lender of any telephonic Loan
Notice, the Swingline Lender will confirm with the Administrative Agent (by
telephone or in writing) that the Administrative Agent has also received such
Loan Notice and, if not, the Swingline Lender will notify the Administrative
Agent (by telephone or in writing) of the contents thereof. Unless the Swingline
Lender has received notice (by telephone or in writing) from the Administrative
Agent (including at the request of any Lender) prior to 3:00 p.m. on the date of
the proposed Swingline Borrowing (i) directing the Swingline Lender not to make
such Swingline Loan as a result of the limitations set forth in this Article 2, or (ii)
that one or more of the applicable conditions specified in Article 5 is not then
satisfied, then, subject to the terms and conditions hereof, the Swingline Lender
will, not later than 3:00 p.m. on the borrowing date specified in such Loan Notice,
make the amount of its Swingline Loan available to the Borrower at its office by
crediting the account of the Borrower on the books of the Swingline Lender in
immediately available funds. Notwithstanding anything to the contrary contained
in this Section 2.04 or elsewhere in this Agreement, the Swingline Lender shall
not be obligated to make any Swingline Loan at a time when a Revolving Credit
Lender is a Defaulting Lender unless the Swingline Lender has entered into
arrangements reasonably satisfactory to it and the Borrower to eliminate the
Swingline Lender’s Fronting Exposure (after giving effect to Section 2.17(a)(vii))
with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in
such Swingline Loans, including by providing Cash Collateral or other Adequate
Assurance to support such Defaulting Lender’s or Defaulting Lenders’ Aggregate
Commitment Percentage of the outstanding Swingline Loans or other applicable
share provided for under this Agreement. The Borrower shall repay to the
Swingline Lender each Defaulting Lender’s portion (after giving effect to Section
2.17(a)(vii)) of each Swingline Loan promptly following demand by the
Swingline Lender.
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(b) Refinancing.
(i) The Swingline Lender at any time in its sole and absolute
discretion may request, on behalf of the Borrower (which hereby irrevocably
authorizes the Swingline Lender to so request on its behalf), that each Revolving
Credit Lender make a Revolving Credit Loan that is a Base Rate Loan in an
amount equal to such Revolving Credit Lender’s Aggregate Commitment
Percentage of Swingline Loans then outstanding. Such request shall be made in
writing (which written request shall be deemed to be a Loan Notice for purposes
hereof) and in accordance with the requirements of Section 2.02(a), without
regard to the minimum and multiples specified in Section 2.02(b) for the principal
amount of Revolving Credit Loans, the unutilized portion of the Aggregate
Revolving Credit Commitments or the conditions set forth in Section 5.02. The
Swingline Lender shall furnish the Borrower with a copy of the applicable Loan
Notice promptly after delivering such notice to the Administrative Agent. Each
Revolving Credit Lender shall make an amount equal to its pro rata share of the
amount specified in such Loan Notice available to the Administrative Agent in
immediately available funds (and the Administrative Agent may apply Cash
Collateral available with respect to the applicable Swingline Loan) for the account
of the Swingline Lender at the Administrative Agent’s Office not later than 1:00
p.m. on the day specified in such Loan Notice, whereupon, subject to Section
2.04(b)(ii), each Revolving Credit Lender that so makes funds available shall be
deemed to have made a Revolving Credit Loan that is a Base Rate Loan to the
Borrower in such amount. In such case, the Administrative Agent shall remit the
funds so received to the Swingline Lender.
(ii) If for any reason any Swingline Loan cannot be refinanced by such
a Borrowing of Revolving Credit Loans in accordance with Section 2.04(b)(i), the
request for Revolving Credit Loans submitted by the Swingline Lender as set
forth herein shall be deemed to be a request by the Swingline Lender that each of
the Revolving Credit Lenders fund its risk participation in the relevant Swingline
Loan and each Revolving Credit Lender’s payment to the Administrative Agent
for the account of the Swingline Lender pursuant to Section 2.04(b)(i) shall be
deemed payment in respect of such participation.
(iii) If any Revolving Credit Lender fails to make available to the
Administrative Agent for the account of the Swingline Lender any amount
required to be paid by such Revolving Credit Lender pursuant to the foregoing
provisions of this Section 2.04(b) by the applicable time specified in Section
2.04(b)(i) the Swingline Lender shall be entitled to recover from such Revolving
Credit Lender (acting through the Administrative Agent), on demand, such
amount with interest thereon for the period from the date such payment is
required to the date on which such payment is immediately available to the
Swingline Lender at a rate per annum equal to the applicable Overnight Rate from
time to time in effect. A certificate of the Swingline Lender submitted to any
Revolving Credit Lender (through the Administrative Agent) with respect to any
amounts owing under this clause (iii) shall be conclusive absent manifest error.
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(iv) Each Revolving Credit Lender’s obligation to make Revolving
Credit Loans or to purchase and fund risk participations in Swingline Loans
pursuant to this Section 2.04(b) shall be absolute and unconditional and shall not
be affected by any circumstance, including (A) any setoff, counterclaim,
recoupment, defense or other right that such Lender may have against the
Swingline Lender, the Borrower or any other Person for any reason whatsoever,
(B) the occurrence or continuance of a Default or Event of Default, (C) non-
compliance with the conditions set forth in Section 5.02, or (D) any other
occurrence, event or condition, whether or not similar to any of the foregoing;
provided that the Swingline Lender has complied with the provisions of Section
2.04(a). No such purchase or funding of risk participations shall relieve or
otherwise impair the obligation of the Borrower to repay Swingline Loans,
together with interest as provided herein.
(c) Repayment of Participations.
(i) At any time after any Revolving Credit Lender has purchased and
funded a risk participation in a Swingline Loan, if the Swingline Lender receives
any payment on account of such Swingline Loan, the Swingline Lender will
distribute to such Revolving Credit Lender its Aggregate Commitment Percentage
of such payment (appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Revolving Credit Lender’s risk
participation was funded) in the same funds as those received by the Swingline
Lender.
(ii) If any payment received by the Swingline Lender in respect of
principal or interest on any Swingline Loan is required to be returned by the
Swingline Lender under any of the circumstances described in Section 11.05
(including pursuant to any settlement entered into by the Swingline Lender in its
discretion), each Revolving Credit Lender shall pay to the Swingline Lender its
Aggregate Commitment Percentage thereof on demand of the Administrative
Agent, plus interest thereon from the date of such demand to the date such amount
is returned, at a rate per annum equal to the applicable Overnight Rate. The
Administrative Agent will make such demand upon the request of the Swingline
Lender. The obligations of the Revolving Credit Lenders under this clause shall
survive the payment in full of the Obligations and the termination of this Credit
Agreement.
(d) Interest for Account of the Swingline Lender. The Swingline Lender shall
be responsible for invoicing the Borrower for interest on the Swingline Loans. Until each
Revolving Credit Lender funds its Revolving Credit Loan or risk participation pursuant to this
Section 2.04 to refinance such Revolving Credit Lender’s Aggregate Commitment Percentage of
any Swingline Loan, interest in respect thereof shall be solely for the account of the Swingline
Lender.
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(e) Payments Directly to Swingline Lender. The Borrower shall make all
payments of principal and interest in respect of the Swingline Loans, directly to the Swingline
Lender.
Section 2.05. Repayment of Loans.
(a) [Reserved].
(b) Revolving Credit Loans. The Outstanding Amount of Revolving Credit
Loans shall be repaid in full on the Revolving Termination Date.
(c) Swingline Loans. The Outstanding Amount of the Swingline Loans shall
be repaid in full on the earlier to occur of (i) the date five (5) Business Days after such Loan is
made and (ii) the Revolving Termination Date.
Section 2.06. Prepayments.
(a) Voluntary Prepayments. The Loans may be repaid in whole or in part
without premium or penalty (except, (x) in the case of Loans other than Base Rate Loans,
amounts payable pursuant to Section 3.05) and (y) as set forth in Section 2.06(d)); provided that:
(i) in the case of Loans other than Swingline Loans, notice thereof
must be received by 12:00 p.m. by the Administrative Agent (A) at least three
Business Days prior to the date of prepayment, in the case of Eurocurrency Rate
Loans and (B) on the date of prepayment, in the case of Base Rate Loans, and in
each case, any such prepayment shall be a minimum principal amount of
$1,000,000 and integral multiples of $1,000,000 in excess thereof, in the case of
Eurocurrency Rate Loans and $500,000 and integral multiples of $100,000 in
excess thereof, in the case of Base Rate Loans, or, in each case, the entire
remaining principal amount thereof, if less;
(ii) in the case of Swingline Loans, (A) notice thereof must be received
by the Swingline Lender by 1:00 p.m. on the date of prepayment (with a copy to
the Administrative Agent), and (B) any such prepayment shall be in the same
minimum principal amounts as for advances thereof (or any lesser amount that
may be acceptable to the Swingline Lender).
Each such notice of voluntary prepayment hereunder shall be irrevocable (provided that
the notice may be conditional upon any refinancing or other conditional event and may be
rescinded by the Borrower if such refinancing or other conditional event shall not be
consummated or is otherwise delayed) and shall specify the date and amount of prepayment and
the Class and Type(s) of Loans that are being prepaid and, if Eurocurrency Rate Loans are to be
prepaid, the Interest Period(s) of such Loans. The Administrative Agent will give prompt notice
to the Appropriate Lenders of any prepayment on the Loans and the Appropriate Lender’s
interest therein. If such notice is given by the Borrower, the Borrower shall make such
prepayment and the payment amount specified in such notice shall be due and payable on the
date specified therein. Prepayments of Eurocurrency Rate Loans hereunder shall be
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accompanied by accrued interest on the amount prepaid and breakage or other amounts due, if
any, under Section 3.05.
(b) Mandatory Prepayments.
(i) Revolving Credit Commitments. If at any time (A) the
Outstanding Amount of Revolving Credit Obligations shall exceed the Aggregate
Revolving Credit Committed Amount, (B) the Outstanding Amount of L/C
Obligations shall exceed the L/C Sublimit or (C) the Outstanding Amount of
Swingline Loans shall exceed the Swingline Sublimit, the Borrower will
immediately prepay the Revolving Credit Obligations in an amount equal to such
excess; provided, however, that L/C Obligations will not be required to be Cash
Collateralized hereunder until the Revolving Credit Loans and Swingline Loans
have been paid in full.
(ii) (A) Dispositions and Involuntary Dispositions. Subject to Section
2.06(b)(ii)(D) and the terms set forth in any applicable Incremental Amendment,
Extension Amendment, Refinancing Amendment or Replacement Amendment,
the Borrower will prepay the Term Loans (if any) on the fifth Business Day
following receipt of Net Cash Proceeds in an amount equal to 100% of the Net
Cash Proceeds received from any Disposition pursuant Section 8.05(b) or any
Involuntary Disposition by the Borrower or any Restricted Subsidiary; provided
that if (x) the Borrower delivers, no later than the last day of such five Business
Day period following receipt, a certificate of a Responsible Officer to the
Administrative Agent setting forth the Borrower’s intent to reinvest such proceeds
in assets useful in the business of the Borrower or any Restricted Subsidiary and
(y) no Default or Event of Default shall have occurred and be continuing at the
time of such certificate or at the proposed time of the application of such
proceeds, and such proceeds shall not be required to be applied to prepay the
Term Loans except to the extent such proceeds are not so reinvested within (A)
twelve (12) months following receipt of such Net Cash Proceeds or (B) if the
Borrower or any Restricted Subsidiary enters into a legally binding commitment
to reinvest such Net Cash Proceeds within twelve (12) months following receipt
thereof, the later of (I) twelve (12) months following receipt thereof and (II) one
hundred eighty (180) days after the end of such 12-month period.
(B) Incurrence of Indebtedness. The Borrower will prepay the
Term Loans (if any) on or prior to the fifth Business Day following receipt
of Net Cash Proceeds in an amount equal to 100% of the Net Cash
Proceeds received from any incurrence or issuance of Indebtedness by the
Borrower or any Restricted Subsidiary, other than Indebtedness permitted
to be incurred or issued pursuant to Section 8.03.
(C) Refinancing Loans and Refinancing Equivalent Debt. If
the Borrower incurs or issues any Refinancing Term Loans (or
Refinancing Equivalent Debt) resulting in Net Cash Proceeds (as opposed
to such Refinancing Term Loans or Refinancing Equivalent Debt arising
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out of an exchange of existing Term Loans for such Refinancing Term
Loans or Refinancing Equivalent Debt), the Borrower shall cause to be
prepaid an aggregate principal amount of Term Loans in an amount equal
to 100% of all Net Cash Proceeds received therefrom on or prior to the
fifth Business Day following receipt of such Net Cash Proceeds.
(D) Foreign Dispositions and Foreign Involuntary
Dispositions. Notwithstanding anything to the contrary contained in this
Section 2.06(b), mandatory prepayments arising from the receipt of Net
Cash Proceeds from any Disposition or Involuntary Disposition by any
Foreign Subsidiary pursuant to Section 2.06(b)(ii)(A) (each, a “Foreign
Disposition”) shall not be required (1) to the extent the making of any
such mandatory prepayment from the Net Cash Proceeds of such Foreign
Disposition (or the repatriation of funds to effect such payment) would
give rise to a material adverse tax consequence (as reasonably determined
in good faith by the Borrower), (2) without duplication (including with
respect to any reduction set forth in the definitions of Net Cash Proceeds),
to the extent such amounts have been applied to prepay any Indebtedness
of any Foreign Subsidiary or to the extent such Foreign Subsidiary has
reinvested such amounts in assets useful in its business or the business of
the Borrower or its Restricted Subsidiaries, provided that no such
reinvestments shall be permitted at the time an Event of Default shall then
be continuing or (3) so long as the applicable local Law will not permit
repatriation thereof to the United States (the Borrower hereby agreeing to
use commercially reasonable efforts to cause the applicable Foreign
Subsidiary to promptly file any required forms, obtain any necessary
consents and take all similar actions reasonably required by the applicable
local Law to permit such repatriation); provided that if such repatriation of
any such affected Net Cash Proceeds is later permitted under applicable
Law, unless such amounts have previously been applied to prepayments or
reinvestments to the extent permitted by clause (2) above, such
repatriation will, subject to clause (1) above, be effected as promptly as
practicable and such repatriated Net Cash Proceeds will be promptly after
such repatriation applied pursuant to Section 2.06(b)(ii)(A), deeming such
Net Cash Proceeds as having been received for purposes of such Section
on the date of such repatriation. All mandatory prepayments required to
be made from the Net Cash Proceeds of any Foreign Dispositions shall not
be required until a date which is 65 Business Days following the receipt of
such Net Cash Proceeds.
(E) The Borrower shall deliver to the Administrative Agent, in
connection with each prepayment required under this Section 2.06(b)(ii),
(i) a certificate signed by a Responsible Officer of the Borrower setting
forth in reasonable detail the calculation of the amount of such
prepayment and (ii) at least three (3) Business Days’ prior written notice
of such prepayment. Each notice of prepayment shall specify the
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prepayment date and the principal amount of each Loan (or portion
thereof) to be prepaid.
(F) Each Term Lender may reject all (but not less than all) of
its applicable share of any mandatory prepayment required to be made by
the Borrower pursuant to clauses (A), (B) and (D) (such declined amounts,
the “Mandatory Prepayment Declined Proceeds”) of Term Loans
required to be made pursuant to this Section 2.06(b)(ii) by providing
written notice (each, a “Mandatory Prepayment Rejection Notice”) to
the Administrative Agent and the Borrower not later than 5:00 p.m., New
York City time, one Business Day after the date of such Term Lender’s
receipt of notice from the Administrative Agent regarding such
prepayment. If a Term Lender fails to deliver a Mandatory Prepayment
Rejection Notice to the Administrative Agent within the time frame
specified above such failure will be deemed an acceptance of the total
amount of such mandatory prepayment of Term Loans. Any Mandatory
Prepayment Declined Proceeds shall be shall be offered to the Term
Lenders not so declining such prepayment on a pro rata basis in
accordance with the amounts of the Term Loans of such Lender (with such
non-declining Term Lenders having the right to decline any prepayment
with Mandatory Prepayment Declined Proceeds at the time and in the
manner specified by the Administrative Agent). To the extent such non-
declining Term Lenders elect to decline their pro rata share of such
Mandatory Prepayment Declined Proceeds, any Mandatory Prepayment
Declined Proceeds remaining thereafter shall be retained by the Borrower.
(c) Application. Within each Class, prepayments will be applied first to Base
Rate Loans, then to Eurocurrency Rate Loans in direct order of Interest Period maturities. In
addition:
(i) Voluntary Prepayments. Voluntary prepayments shall be applied
as specified by the Borrower. In the absence of a designation by the Borrower,
any voluntary prepayment of the Term Loans shall be applied within each Class
of Term Loans to reduce the principal repayment installments of such Class of
Term Loans in direct order of maturity. Voluntary prepayments on the Loan
Obligations will be paid by the Administrative Agent to the Lenders ratably in
accordance with their respective Aggregate Commitment Percentage.
(ii) Mandatory Prepayments.
(A) Mandatory prepayments in respect of the Revolving Credit
Facility under Section 2.06(b)(i) above shall be applied first, to the
Swingline Loans until paid in full, second, to the Revolving Credit Loans
until paid in full, and, third, to Cash Collateralize outstanding Letters of
Credit.
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(B) Mandatory prepayments in respect of Term Loans under
Section 2.06(b)(ii) above shall be applied to scheduled installments of
principal as specified by the Borrower. In the absence of a designation by
the Borrower, any mandatory prepayment of the Term Loans shall be
applied to reduce the principal repayment installments of such Term Loan
Facility in direct order of maturity.
All prepayments under Section 2.06(b) shall be subject to Section 3.05, but otherwise
without premium or penalty, and shall be accompanied by interest on the principal amount
prepaid through the date of prepayment.
Section 2.07. Termination or Reduction of Commitments.
(a) Voluntary Reductions of Revolving Credit Commitments. The Aggregate
Revolving Credit Commitments hereunder may be permanently reduced in whole or in part by
notice from the Borrower to the Administrative Agent; provided that (i) any such notice thereof
must be received by 12:00 p.m. at least three Business Days prior to the date of reduction or
termination and any such prepayment shall be in a minimum principal amount of $5,000,000 and
integral multiples of $1,000,000 in excess thereof; (ii) none of the Aggregate Revolving Credit
Commitments may be reduced to an amount less than the Revolving Credit Obligations then
outstanding thereunder and (iii) if, after giving effect to any reduction of any of the Aggregate
Revolving Credit Commitments, the L/C Sublimit or the Swingline Sublimit exceeds the amount
of applicable Aggregate Revolving Credit Commitments, such sublimit shall be automatically
reduced by the amount of such excess. The Administrative Agent will give prompt notice to the
Revolving Credit Lenders of any such reduction in the Aggregate Revolving Credit
Commitments. Notwithstanding the foregoing, the Borrower may rescind or postpone any notice
of termination of any Revolving Credit Commitments if such termination would have resulted
from a refinancing of all of the applicable Class of Revolving Credit Commitments or other
conditional event, which refinancing or other conditional event shall not be consummated or
shall otherwise be delayed.
(b) Mandatory Reductions of Revolving Credit Commitments. The Aggregate
Revolving Credit Committed Amount shall not be permanently reduced upon application of any
mandatory prepayments to the Revolving Credit Obligations.
(c) [Reserved].
(d) Payment of Fees. All Commitment Fees or other fees accrued with
respect to such portion of the Aggregate Revolving Credit Commitments terminated or reduced
pursuant to Section 2.07 through the effective date of such termination or reduction shall be paid
on the effective date of such termination or reduction.
Section 2.08. Interest.
(a) Subject to the provisions of subsection (b) below, (i) each Eurocurrency
Rate Loan shall bear interest on the outstanding principal amount thereof for each Interest Period
at a rate per annum equal to the Eurocurrency Rate for such Interest Period plus the Applicable
Percentage; (ii) each Loan that is a Base Rate Loan shall bear interest on the outstanding
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principal amount thereof from the applicable borrowing date at a rate per annum equal to the
Base Rate plus the Applicable Percentage and (iii) each Swingline Loan shall bear interest on the
outstanding principal amount thereof from the applicable borrowing date at a rate per annum
equal to the Base Rate plus the Applicable Percentage.
(b) (i) If any amount of principal of any Loan is not paid when due (after
giving effect to any applicable grace periods), whether at stated maturity, by acceleration or
otherwise, such overdue amount shall thereafter bear interest at a fluctuating interest rate per
annum at all times equal to the Default Rate to the fullest extent permitted by applicable Law.
(ii) If any amount (other than principal of any Loan) payable under
any Credit Document is not paid when due (after giving effect to any applicable
grace periods), whether at stated maturity, by acceleration or otherwise, such
overdue amount shall thereafter bear interest at a fluctuating interest rate per
annum at all times equal to the Default Rate to the fullest extent permitted by
applicable Law.
(iii) Upon the occurrence and during the continuation of an Event of
Default under Section 9.01(f), the principal amount of all outstanding Obligations
hereunder shall bear interest at a fluctuating interest rate per annum at all times
equal to the Default Rate to the fullest extent permitted by applicable Law.
(iv) Accrued and unpaid interest on past due amounts (including
interest on past due amounts) shall be due and payable upon demand.
(c) Interest on each Loan shall be due and payable in arrears on each Interest
Payment Date applicable thereto and at such other times as may be specified herein. Interest
hereunder shall be due and payable in accordance with the terms hereof before and after
judgment, and before and after the commencement of any proceeding under any Debtor Relief
Law.
Section 2.09. Fees
(a) Commitment Fees.
(i) Revolving Credit Commitment. The Borrower shall pay to the
Administrative Agent for the account of each Revolving Credit Lender (other than
a Defaulting Lender which shall be dealt with as provided in Section 2.17) in
accordance with its Aggregate Commitment Percentage, a commitment fee in
Dollars (the “Commitment Fee”), at a rate per annum equal to the product of (A)
the Applicable Percentage times (B) the actual daily amount by which the
Aggregate Revolving Credit Commitments exceed the sum of (x) the Outstanding
Amount of Revolving Credit Loans and (y) the Outstanding Amount of L/C
Obligations, subject to adjustment as provided in Section 2.17.
(ii) Payments. The Commitment Fee shall accrue at all times during
the Commitment Period, including at any time during which one or more of the
conditions in Article 5 is not met, and shall be due and payable quarterly in
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arrears on the last Business Day of each March, June, September and December,
commencing with the first such date to occur after the Closing Date, on the
Revolving Termination Date (and, if applicable, thereafter on demand). The
Commitment Fee shall be calculated quarterly in arrears, and if there is any
change in the Applicable Percentage during any quarter, the actual daily amount
shall be computed and multiplied by the Applicable Percentage separately for
each period during such quarter that such Applicable Percentage was in effect.
For purposes of clarification, Swingline Loans shall not be considered outstanding
for purposes of determining the unused portion of the Aggregate Revolving Credit
Commitments.
(b) Commercial and Standby Letter of Credit Fees.
(i) Letter of Credit Fees. The Borrower shall pay to the
Administrative Agent for the account of each Revolving Credit Lender in
accordance with its Aggregate Commitment Percentage a Letter of Credit fee in
Dollars for each Letter of Credit equal to the Applicable Percentage multiplied by
the Dollar Equivalent of the actual daily maximum amount available to be drawn
under such Letter of Credit (whether or not such maximum amount is then in
effect under such Letter of Credit if such maximum amount increases periodically
pursuant to the terms of such Letter of Credit) (the “Letter of Credit Fees”);
provided, however, any Letter of Credit Fees otherwise payable for the account of
a Defaulting Lender with respect to any Letter of Credit as to which such
Defaulting Lender has not provided Cash Collateral or other Adequate Assurance
reasonable satisfactory to the L/C Issuer pursuant to Section 2.03(a)(ii) and
Section 2.17 shall be payable into the Defaulting Lender Account or, to the
maximum extent permitted by applicable Law, to the other Revolving Credit
Lenders in accordance with the upward adjustments in their respective Aggregate
Commitment Percentages allocable to such Letter of Credit pursuant to Section
2.17(a)(vii), with the balance of such fee, if any, payable to the L/C Issuer for its
own account. The Letter of Credit Fees shall be computed on a quarterly basis in
arrears, and shall be due and payable on the last Business Day of each March,
June, September and December, commencing with the first such date to occur
after the issuance of such Letter of Credit, on the L/C Expiration Date, and on the
Revolving Termination Date. If there is any change in the Applicable Percentage
during any quarter, the Dollar Equivalent of the daily maximum amount of each
standby Letter of Credit shall be computed and multiplied by the Applicable
Percentage separately for each period during such quarter that such Applicable
Percentage was in effect. Notwithstanding anything to the contrary contained
herein, upon the request of the Required Revolving Credit Lenders, while any
Event of Default exists, all Letter of Credit Fees shall accrue at the Default Rate.
(ii) Fronting Fee and Documentary and Processing Charges Payable
to the L/C Issuer. The Borrower shall pay directly to the L/C Issuer for its own
account a fronting fee in Dollars equal to 0.125% per annum of the Dollar
Equivalent of the actual daily maximum amount available to be drawn under such
Letter of Credit. In addition, the Borrower shall pay directly to the L/C Issuer for
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its own account the customary issuance, presentation, amendment and other
processing fees, and other standard costs and charges, of the L/C Issuer relating to
letters of credit as from time to time in effect. Such customary fees and standard
costs and charges are due and payable on demand and are nonrefundable.
(c) Other Fees. The Borrower shall pay to the Agents such fees as shall have
been separately agreed upon in writing in the amounts and at the times so specified. Such fees
shall be fully earned when paid and shall not be refundable for any reason whatsoever (except as
expressly agreed between the Borrower and the applicable Agent).
(d) Closing Fees. The Borrower agrees to pay on the Amendment No. 1
Effective Date to each Lender party to Amendment No. 1 on the Amendment No. 1 Effective
Date, as fee compensation for the funding of such Lender’s Revolving Credit Commitment as in
effect on the Amendment No. 1 Effective Date, a closing fee (the “Closing Fee”) in an amount
provided in Section 2(e) of Amendment No. 1. Such Closing Fee will be in all respects fully
earned, due and payable on the Amendment No. 1 Effective Date and non-refundable and non-
creditable thereafter and, the Closing Fee shall be netted against Revolving Credit Commitments
of such Lender on the Amendment No. 1 Effective Date.
Section 2.10. Computation of Interest and Fees; Retroactive Adjustments to Applicable
Percentage.
(a) All computations of interest for Base Rate Loans (including Base Rate
Loans determined by reference to the Eurocurrency Rate) shall be made on the basis of a year of
365 or 366 days, as the case may be, and actual days elapsed. All other computations of fees and
interest shall be made on the basis of a 360-day year and actual days elapsed. Interest shall
accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or
any portion thereof, for the day on which the Loan or such portion is paid; provided that any
Loan that is repaid on the same day on which it is made shall, subject to Section 2.11(a), bear
interest for one day. Each determination by the Administrative Agent of an interest rate or fee
hereunder shall be conclusive and binding for all purposes, absent manifest error.
(b) If at any time prior to the termination of the Commitments of all of the
Lenders and the repayment of all other Obligations hereunder (other than (i) contingent
indemnification obligations as to which no claim has been asserted, (ii) Obligations described in
clauses (b) and (c) of the definition thereof and (iii) any Letter of Credit that has been Cash
Collateralized or back-stopped by a letter of credit reasonably satisfactory to the L/C Issuer or
such Letter of Credit has been deemed reissued under another agreement reasonably acceptable
to the L/C Issuer), as a result of any restatement of or other adjustment to the financial statements
of the Borrower or for any other reason, the Borrower or the Lenders determine that (1) the
Consolidated Total Net Leverage Ratio as calculated by the Borrower in any Compliance
Certificate delivered to the Administrative Agent was inaccurate and (2) a proper calculation of
the Consolidated Total Net Leverage Ratio would have resulted in a higher Applicable
Percentage for such period, then the Borrower shall be obligated to pay as immediately due and
payable to the Administrative Agent for the account of the applicable Lenders or the L/C Issuer,
as the case may be, within three (3) Business Days after notice by the Administrative Agent to
the Borrower (or, after the occurrence of an actual or deemed entry of an order for relief with
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respect to the Borrower under the Bankruptcy Code of the United States, automatically and
without further action by the Administrative Agent, any Lender or the L/C Issuer), an amount
equal to the excess of the amount of interest and fees that should have been paid for such period
over the amount of interest and fees actually paid for such period. During such three Business
Day period and thereafter, if the preceding sentence is complied with, the failure to previously
pay such shortfall in interest and fees and the delivery of such inaccurate certificate shall not in
and of themselves constitute a Default or Event of Default and no amounts shall be payable at
the Default Rate in respect of any such interest or fees. This paragraph shall not limit the rights
of the Administrative Agent, any Lender or the L/C Issuer, as the case may be, under Section
2.03(c)(iii), 2.03(i) or 2.08(b) or under Article 9.
Section 2.11. Payments Generally; Administrative Agent’s Clawback.
(a) General. All payments to be made by any Credit Party shall be made
without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as
otherwise expressly provided herein, all payments by any Credit Party hereunder shall be made
to the Administrative Agent, for the account of the respective Lenders to which such payment is
owed, at the Administrative Agent’s Office in Dollars and in immediately available funds not
later than 2:00 p.m. on the date specified herein. If, for any reason, any Borrower is prohibited
by any Law from making any required payment hereunder in an Alternative Currency, such
Borrower shall make such payment in Dollars in the Dollar Equivalent of the Alternative
Currency payment amount. The Administrative Agent will promptly distribute to each Lender its
pro rata share of such payment in like funds as received by wire transfer to such Lender’s
Lending Office. All payments received by the Administrative Agent (i) after 2:00 p.m., in the
case of payments in Dollars, or (ii) after the Applicable Time related to payments in an
Alternative Currency, shall in each case, be deemed received on the next succeeding Business
Day and any applicable interest or fee shall continue to accrue. Subject to the definition of
“Interest Period,” if any payment to be made by any Credit Party shall come due on a day other
than a Business Day, payment shall be made on the next following Business Day, and such
extension of time shall be reflected in computing interest or fees, as the case may be.
(b) Funding by Lenders; Presumption by Administrative Agent. Unless the
Administrative Agent shall have received notice from a Lender prior to the proposed date of any
Borrowing of Eurocurrency Rate Loans (or, in the case of any Borrowing of Base Rate Loans,
prior to 12:00 noon on the date of such Borrowing) that such Lender will not make available to
the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may
assume that such Lender has made such share available on such date in accordance with Section
2.02 (or, in the case of a Borrowing of Base Rate Loans, that such Lender has made such share
available in accordance with and at the time required by Section 2.02) and may, in reliance upon
such assumption, make available to the Borrower a corresponding amount. In such event, if a
Lender has not in fact made its share of the applicable Borrowing available to the Administrative
Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount in immediately available funds with
interest thereon, for each day from and including the date such amount is made available to the
Borrower to but excluding the date of payment to the Administrative Agent, at (x) in the case of
a payment to be made by such Lender, the Overnight Rate plus any administrative, processing or
similar fees customarily charged by the Administrative Agent in connection with the foregoing
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and (y) in the case of a payment to be made by the Borrower, the interest rate applicable to Base
Rate Loans under the Facility in which such Loan was made. If the Borrower and such Lender
shall pay such interest to the Administrative Agent for the same or an overlapping period, the
Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by
the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the
Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in
such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the
Borrower may have against a Lender that shall have failed to make such payment to the
Administrative Agent.
(c) Payments by the Borrower; Presumptions by Administrative Agent.
Unless the Administrative Agent shall have received notice from the Borrower prior to the date
on which any payment is due to the Administrative Agent for the account of the Lenders or the
L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent
may assume that the Borrower has made such payment on such date in accordance herewith and
may, in reliance upon such assumption, distribute to the Lenders or the L/C Issuer, as the case
may be, the amount due. In such event, if the Borrower has not in fact made such payment, then
each of the Lenders or the L/C Issuer, as the case may be, severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to such Lender or L/C
Issuer, in immediately available funds with interest thereon, for each day from and including the
date such amount is distributed to it to but excluding the date of payment to the Administrative
Agent, at the Overnight Rate. A notice of the Administrative Agent to any Lender or the
Borrower with respect to any amount owing under this subsection (b) shall be conclusive, absent
manifest error.
(d) Failure to Satisfy Conditions Precedent. If any Lender makes available to
the Administrative Agent funds for any Loan to be made by such Lender as provided in the
foregoing provisions of this Article 2, and such funds are not made available to the Borrower by
the Administrative Agent because the conditions to the applicable Credit Extension set forth in
Article 5 are not satisfied or waived in accordance with the terms hereof, the Administrative
Agent shall return such funds (in like funds as received from such Lender) to such Lender,
without interest.
(e) Obligation of the Lenders Several. The obligations of the Lenders
hereunder to make Loans, to fund participations in Letters of Credit and Swingline Loans and to
make payments pursuant to Section 11.04(c) are several and not joint. The failure of any Lender
to make any Loan, to fund any such participation or to make any payment under Section 11.04(c)
on any date required hereunder shall not relieve any other Lender of its corresponding obligation
to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so
make its Loan, to purchase its participation or to make its payment under Section 11.04(c).
(f) Funding Source. Subject to Section 3.06, nothing herein shall be deemed
to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to
constitute a representation by any Lender that it has obtained or will obtain the funds for any
Loan in any particular place or manner.
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(g) Allocation of Funds. If at any time insufficient funds are received by or
are available to the Administrative Agent to pay fully all amounts of principal, L/C Borrowings,
interest and fees then due hereunder, such funds shall be applied (i) first, toward costs and
expenses (including all reasonable and documented out-of-pocket fees, expenses and
disbursements of any law firm or other counsel and amounts payable under Article 3) incurred
by the Administrative Agent and each Lender, (ii) second, toward repayment of interest and fees
then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of
interest and fees then due to such parties, and (iii) third, toward repayment of principal and L/C
Borrowings then due hereunder, ratably among the parties entitled thereto in accordance with the
amounts of principal and L/C Borrowings then due to such parties.
Section 2.12. Sharing of Payments by Lenders. If any Lender shall, by exercising any
right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of the Loans made by it, or the participations in L/C Obligations or in Swingline
Loans held by it resulting in such Lender’s receiving payment of a proportion of the aggregate
amount of such Loans or participations and accrued interest thereon greater than its pro rata
share of the applicable Class of Loans thereof as provided herein, then the Lender receiving such
greater proportion shall notify the Administrative Agent of such fact, and purchase (for cash at
face value) participations in the Loans and subparticipations in L/C Obligations and Swingline
Loans of the other Appropriate Lenders, or make such other adjustments among the group of
Appropriate Lenders as shall be equitable, so that the benefit of all such payments shall be shared
by the Appropriate Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Loans and other amounts owing them; provided that:
(A) if any such participations or subparticipations are
purchased and all or any portion of the payment giving rise thereto is
recovered, such participations or subparticipations shall be rescinded and
the purchase price restored to the extent of such recovery, without interest;
and
(B) the provisions of this Section shall not be construed to
apply to (x) any payment made by the Borrower pursuant to and in
accordance with the express terms of this Credit Agreement, including
Sections 2.18, 2.19 and 2.20 and the application of funds arising from the
existence of a Defaulting Lender, (y) any amounts applied to L/C
Obligations by the L/C Issuer or Swingline Loans by the Swingline
Lender, as appropriate, from Cash Collateral or other Adequate Assurance
provided under Section 2.16 or (z) any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of its
Loans or subparticipations in L/C Obligations or Swingline Loans to any
assignee or participant, other than to the Borrower or any of its Restricted
Subsidiaries (as to which the provisions of this Section shall apply) unless
such assignment occurs in accordance with Section 11.06(i).
Each Credit Party consents to the foregoing and agrees, to the extent it may effectively do
so under applicable Law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against such Credit Party rights of setoff and counterclaim with
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respect to such participation as fully as if such Lender were a direct creditor of such Credit Party
in the amount of such participation.
Section 2.13. Evidence of Debt.
(a) The Credit Extensions made by each Lender shall be evidenced by one or
more accounts or records maintained by such Lender and by the Administrative Agent in the
ordinary course of business. The accounts or records maintained by the Administrative Agent
and each Lender shall be conclusive absent manifest error of the amount of the Credit Extensions
made by the Lenders to the Borrower and the interest and payments thereon. Any failure to so
record or any error in doing so shall not, however, limit or otherwise affect the obligation of the
Borrower hereunder to pay any amount owing with respect to the Obligations. In the event of
any conflict between the accounts and records maintained by any Lender and the accounts and
records of the Administrative Agent in respect of such matters, the accounts and records of the
Administrative Agent shall control in the absence of manifest error. Upon the request of any
Lender made through the Administrative Agent, the Borrower shall execute and deliver to the
Administrative Agent a Note for such Lender, which shall evidence such Lender’s Loans in
addition to such accounts or records. Each Lender may attach schedules to its Note and endorse
thereon the date, Type (if applicable), amount and maturity of its Loans and payments with
respect thereto.
(b) In addition to the accounts and records referred to in subsection (a), each
Revolving Credit Lender and the Administrative Agent shall maintain in accordance with its
usual practice accounts or records evidencing the purchases and sales by such Revolving Credit
Lender of participations in Letters of Credit and Swingline Loans. In the event of any conflict
between the accounts and records maintained by the Administrative Agent and the accounts and
records of any Revolving Credit Lender in respect of such matters, the accounts and records of
the Administrative Agent shall control in the absence of manifest error.
Section 2.14. [Reserved].
Section 2.15. [Reserved].
Section 2.16. Cash Collateral.
(a) Certain Credit Support Events. Upon the request of the Administrative
Agent or the L/C Issuer if the L/C Issuer has honored any full or partial drawing request under
any Letter of Credit and such drawing has resulted in an L/C Borrowing or if, as of the L/C
Expiration Date, any L/C Obligation for any reason remains outstanding, the Borrower shall
immediately Cash Collateralize the then Outstanding Amount of the L/C Obligations. If the
Administrative Agent notifies the Borrower at any time that the Outstanding Amount of all L/C
Obligations at such time exceeds 103% of the L/C Sublimit, then, within two Business Days
after receipt of such notice, the Borrower shall Cash Collateralize the L/C Obligations in an
amount equal to the amount by which the Outstanding Amount of all L/C Obligations exceeds
the L/C Sublimit. At any time that there shall exist a Defaulting Lender, immediately upon the
request of the Administrative Agent, the L/C Issuer or the Swingline Lender, the Borrower shall
deliver to the Administrative Agent Cash Collateral in an amount sufficient to cover all Fronting
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Exposure (after giving effect to Section 2.17(a)(vii) and any Cash Collateral provided by the
Defaulting Lender). At any time that there shall exist a Defaulting Lender, promptly upon the
request of the Administrative Agent, the L/C Issuer or the Swingline Lender, the Borrower shall
deliver to the Administrative Agent Cash Collateral in an amount sufficient to cover all Fronting
Exposure or other Adequate Assurance (after giving effect to Section 2.17(a)(vii) and any Cash
Collateral or other Adequate Assurance provided by the Defaulting Lender). Additionally, if the
Administrative Agent notifies the Borrower at any time that the Outstanding Amount of all L/C
Obligations at such time exceeds 103% of the L/C Sublimit then in effect, then within two (2)
Business Days after receipt of such notice, the Borrower shall provide Cash Collateral for the
Outstanding Amount of the L/C Obligations in an amount not less than the amount by which the
Outstanding Amount of all L/C Obligations exceeds the L/C Sublimit.
(b) Grant of Security Interest. All Cash Collateral (other than credit support
not constituting funds subject to deposit) shall be maintained in blocked, non-interest bearing
deposit accounts with the Administrative Agent. The Borrower, and to the extent provided by
any Defaulting Lender, such Defaulting Lender, hereby grants to (and subjects to the control of)
the Administrative Agent, for the benefit of the Administrative Agent, the L/C Issuer and the
Revolving Credit Lenders (including the Swingline Lender), and agrees to maintain, a first
priority security interest in all such cash, deposit accounts and all balances therein, and all other
property so provided as collateral pursuant hereto, and in all proceeds of the foregoing, all as
security for the obligations to which such Cash Collateral may be applied pursuant to Section
2.16(c). If at any time the Administrative Agent determines that Cash Collateral is subject to any
right or claim of any Person other than the Administrative Agent as herein provided, or that the
total amount of such Cash Collateral is less than the applicable Fronting Exposure and other
obligations secured thereby, the Borrower or the relevant Defaulting Lender 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.
(c) Application. Notwithstanding anything to the contrary contained in this
Credit Agreement, Cash Collateral provided under any of this Section 2.16 or Sections 2.03,
2.04, 2.06, 2.17 or 9.02 in respect of Letters of Credit or Swingline Loans shall be held and
applied to the satisfaction of the specific L/C Obligations, Swingline Loans, obligations to fund
participations therein (including, as to Cash Collateral provided by a Defaulting Lender, any
interest accrued on such obligation) and other obligations for which the Cash Collateral was so
provided, prior to any other application of such property as may be provided for herein.
(d) Release. Cash Collateral (or the appropriate portion thereof) provided to
reduce Fronting Exposure or other obligations shall be released promptly following (i) the
elimination of the applicable Fronting Exposure or other obligations giving rise thereto
(including by the termination of Defaulting Lender status of the applicable Lender (or, as
appropriate, its assignee following compliance with Section 11.06(b)(vi))) or (ii) the
Administrative Agent’s good faith determination that there exists excess Cash Collateral;
provided, however, (x) that Cash Collateral furnished by or on behalf of a Credit Party shall not
be released during the continuance of an Event of Default (and following application as provided
in this Section 2.16 shall be applied in accordance with Section 9.03), and (y) the Person
providing Cash Collateral and the L/C Issuer or the Swingline Lender, as applicable, may agree
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that Cash Collateral shall not be released but instead held to support future anticipated Fronting
Exposure or other obligations.
Section 2.17. Defaulting Lenders.
(a) Adjustments. Notwithstanding anything to the contrary contained in this
Credit Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such
Lender is no longer a Defaulting Lender, to the extent permitted by applicable Law:
(i) [reserved];
(ii) [reserved];
(iii) the Defaulting Lender shall not be entitled to vote, or participate in
amendments, waivers or consents hereunder or in respect of the other Credit
Documents, except as may be expressly provided herein;
(iv) the Defaulting Lender may be replaced and its interests assigned as
provided in Section 11.13; all payments of principal, interest and other amounts
owing to a Defaulting Lender will be paid into an account or subaccount with the
Administrative Agent (collectively, the “Defaulting Lender Account”) to secure
the Defaulting Lender’s obligations under this Credit Agreement;
(v) amounts held in the Defaulting Lender Account shall be applied at
such time or times as may be determined by the Administrative Agent as follows:
first, to the payment of any amounts owing by that Defaulting Lender to the
Administrative Agent hereunder; second, to the payment on a pro rata basis of any
amounts owing by that Defaulting Lender to the L/C Issuer or the Swingline
Lender hereunder; third, if so determined by the Administrative Agent or
requested by the L/C Issuer or the Swingline Lender, to be held as Cash Collateral
for future funding obligations of that Defaulting Lender of any participation in
any Swingline Loan or Letter of Credit; fourth, as the Borrower may request (so
long as no Default or Event of Default exists), to the funding of any Loan in
respect of which that Defaulting Lender has failed to fund its portion thereof as
required by this Credit Agreement, as determined by the Administrative Agent;
fifth, if so determined by the Administrative Agent and the Borrower, to be held in
a non-interest bearing deposit account and released pro rata in order to satisfy
obligations of that Defaulting Lender to fund Loans under this Credit Agreement;
sixth, to the payment of any amounts owing to the Lenders, the L/C Issuer or the
Swingline Lender as a result of any judgment of a court of competent jurisdiction
obtained by any Lender, the L/C Issuer or the Swingline Lender against that
Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations
under this Credit Agreement; seventh, so long as no Default or Event of Default
exists, to the payment of any amounts owing to the Borrower as a result of any
judgment of a court of competent jurisdiction obtained by the Borrower against
that Defaulting Lender as a result of that Defaulting Lender’s breach of its
obligations under this Credit Agreement; and eighth, to that Defaulting Lender or
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as otherwise directed by a court of competent jurisdiction; provided that if (x)
such payment is a payment of the principal amount of any Loans or L/C
Borrowings in respect of which that Defaulting Lender has not fully funded its
appropriate share and (y) such Loans or L/C Borrowings were made at a time
when the conditions set forth in Section 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, that Defaulting Lender
until such time as all Loans and funded and unfunded participations in L/C
Obligations and Swingline Loans are held by the Lenders in accordance with their
respective Aggregate Commitment Percentage under the applicable Facility
without giving effect to Section 2.17(a)(vii). Any payments, prepayments or
other amounts paid or payable to a Defaulting Lender that are applied (or held) to
pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to
this Section 2.17(a)(v) shall be deemed paid to and redirected by that Defaulting
Lender, and each Lender irrevocably consents hereto;
(vi) the Defaulting Lenders shall not be entitled to receive any
Commitment Fee, facility fee, letter of credit fee or other fees hereunder (which
fees may be retained by the Borrower rather than paid into the Defaulting Lender
Account); and
(vii) during any period in which there is a Defaulting Lender, for
purposes of computing the amount of the obligation of each non-Defaulting
Lender to acquire, refinance or fund participations in Letters of Credit or
Swingline Loans pursuant to Sections 2.03 and 2.04, the “Aggregate Commitment
Percentage” of each non-Defaulting Lender shall be computed without giving
effect to the Revolving Credit Commitment of that Defaulting Lender; provided
that (A) each such reallocation shall be given effect only if, at the date the
applicable Lender becomes a Defaulting Lender, no Event of Default exists; and
(B) the aggregate obligation of each non-Defaulting Lender to acquire, refinance
or fund participations in Letters of Credit and Swingline Loans shall not exceed
the positive difference, if any, of (1) the Revolving Credit Commitment of that
non-Defaulting Lender minus (2) the aggregate Outstanding Amount of the
Revolving Credit Obligations of that Lender.
(b) Defaulting Lender Cure. If the Borrower, the Administrative Agent, the
Swingline Lender and the L/C Issuer agree in writing in their sole discretion that a Defaulting
Lender should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so
notify the parties hereto, whereupon as of the effective date specified in such notice and subject
to any conditions set forth therein (which may include arrangements with respect to any Cash
Collateral), that Lender will, to the extent applicable, purchase 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 Revolving Credit Loans and funded and unfunded participations in
Letters of Credit and Swingline Loans to be held on a pro rata basis by the Revolving Credit
Lenders in accordance with their Aggregate Commitment Percentages (without giving effect to
Section 2.17(a)(vii)), whereupon that Lender will cease to be a Defaulting Lender; provided that
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no adjustments will be made retroactively with respect to fees accrued or payments made by or
on behalf of the Borrower while that Lender was a Defaulting Lender; and provided, further, that
except to the extent otherwise expressly agreed by the affected parties, no change hereunder
from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party
hereunder arising from that Lender’s having been a Defaulting Lender.
Section 2.18. Incremental Facilities.
(a) Incremental Commitments. The Borrower (or in the case of Escrow
Incremental Term Loans, the Escrow Borrower) may, by written notice to the Administrative
Agent from time to time, request Incremental Commitments, which may be a new Class of term
loans (an “Incremental Term Loan”) or an increase in loans under any then-existing Class of
Term Loans (an “Incremental Term Loan Increase”) and/or one or more increases in the
amount of the Revolving Credit Commitments (a “Revolving Commitment Increase”) or the
establishment of one or more new revolving credit commitments. Such notice shall set forth: (i)
the amount of the Incremental Commitments being requested (which shall be in a minimum
amount of $5,000,000; provided that such amount may be less than $5,000,000 if such amount
represents all remaining availability under the limit set forth in Section 2.18(c)(ii)), (ii) the date
on which such Incremental Commitments are requested to become effective, (iii) whether such
Incremental Commitments are Incremental Revolving Commitments or Incremental Term
Commitments and (iv) whether such Incremental Commitments will constitute Escrow
Incremental Term Loans. The Borrower may in its sole discretion seek Incremental
Commitments from existing Lenders (each of which shall be entitled to agree or decline to
participate in its sole discretion) or any Additional Lender.
(b) Incremental Loans. On the applicable date (each, an “Incremental
Facility Closing Date”) specified in any Incremental Amendment, subject to the satisfaction of
the terms and conditions in this Section 2.18 and in the applicable Incremental Amendment, (i)
(A) each Incremental Term Lender of such Class shall make an Incremental Term Loan to the
Borrower in an amount equal to its Incremental Term Commitment of such Class and (B) each
Incremental Term Lender of such Class shall become a Lender hereunder with respect to the
Incremental Term Commitment of such Class and the Incremental Term Loans of such Class
made pursuant thereto and (ii) (A) each Incremental Revolving Lender of such Class shall make
its Commitment available to the Borrower in an amount equal to its Incremental Revolving
Commitment of such Class and (B) each Incremental Revolving Lender of such Class shall
become a Lender hereunder with respect to the Incremental Revolving Commitment of such
Class and the Incremental Revolving Loans of such Class made pursuant thereto.
(c) Effectiveness of Incremental Amendment. The effectiveness of any
Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the
satisfaction on the applicable date (which shall be no earlier than the date of such Incremental
Amendment) specified therein (the “Incremental Amendment Date”) of each of the following
conditions, together with any other conditions set forth in the Incremental Amendment:
(i) after giving effect to such Incremental Commitments, the
conditions of Section 5.02 shall be satisfied (it being understood that all
references to “the date of such Credit Extension” or similar language in such
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Section 5.02 shall be deemed to refer to the Incremental Amendment Date);
provided that in connection with any Incremental Commitment, the primary
purpose of which is to finance a Limited Condition Transaction, if agreed by the
Incremental Lenders providing such Incremental Commitments, the conditions set
forth in clauses (a) and (b) (other than with respect to any Event of Default under
Section 9.01(a) or (f)) of Section 5.02 may be agreed not to apply and excluded in
the relevant Incremental Amendment and the condition set forth in clause (c) of
Section 5.02 may be satisfied by the delivery of a Request for Credit Extension
within such lesser time period as agreed by such Incremental Lenders, the
Administrative Agent and the Borrower;
(ii) (A) after giving Pro Forma Effect to both (x) the making of
Incremental Term Loans or establishment of Incremental Revolving
Commitments (assuming a borrowing of the maximum amount of Loans available
thereunder) under such Incremental Amendment and (y) any Specified
Transactions consummated in connection therewith, the Consolidated Total Net
Leverage Ratio does not exceed 2.75:1.00; or (B) together with the Incremental
Term Loans made and Incremental Revolving Commitments established under
such Incremental Amendment, the aggregate principal amount of Incremental
Term Loans made, Incremental Equivalent Debt deemed incurred and Incremental
Revolving Commitments established under this clause (B) does not exceed
$150,000,000; provided that it is understood that (1) Incremental Term Loans and
Incremental Revolving Commitments may be incurred under either clause (A) or
clause (B) as selected by the Borrower in its sole discretion, including by
designating any portion of Incremental Commitments in excess of an amount
permitted to be incurred under clause (A) at the time of such incurrence as
incurred under clause (B); and
(iii) to the extent reasonably requested by the Administrative Agent,
receipt by the Administrative Agent of (A) customary legal opinions, board
resolutions and officers’ certificates (including a solvency certificate) consistent
with those delivered on the Closing Date (conformed as appropriate) other than
changes to such legal opinions resulting from a Change in Law, change in fact or
change to counsel’s form of opinion reasonably satisfactory to the Administrative
Agent and (B) reaffirmation agreements and/or such amendments to the Collateral
Documents as may be reasonably requested by the Administrative Agent in order
to ensure that such Incremental Commitments and extensions of credit thereunder
are provided with the benefit of the applicable Credit Documents.
(d) Required Terms. The terms, provisions and documentation of the
Incremental Term Loans and Incremental Term Commitments or the Incremental Revolving
Loans and Incremental Revolving Commitments, as the case may be, of any Class shall be as
agreed between the Borrower and the applicable Incremental Lenders providing such
Incremental Commitments, and except as otherwise set forth herein, to the extent not identical to
any Class of then-existing Term Loans or Revolving Credit Commitments, as applicable, each
existing on the Incremental Facility Closing Date, shall be consistent with clauses (i) and (ii)
below, as applicable, and otherwise (a) conformed (or added) in the Credit Documents pursuant
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to the related Incremental Amendment for the benefit of all Lenders, (b) applicable only to
periods after the Latest Maturity Date as of the Incremental Amendment Date or (c) reasonably
satisfactory to the Administrative Agent; provided that in the case of an Incremental Term Loan
Increase or a Revolving Commitment Increase, the terms, provisions and documentation (other
than the Incremental Amendment evidencing such increase) of such Incremental Term Loan
Increase or Revolving Commitment Increase shall be identical (other than with respect to upfront
fees, OID or similar fees) to the applicable Class of then-existing Term Loans or Revolving
Credit Commitments being increased, in each case, as existing on the Incremental Facility
Closing Date (after giving effect to Section 2.18(e)). In any event:
(i) the Incremental Term Loans:
(A) (I) shall rank pari passu in right of payment with the
Obligations, (II) shall be secured by the Collateral and shall rank pari
passu in right of security with the Obligations and (III) shall be guaranteed
by the Guarantors;
(B) as of the Incremental Amendment Date, shall not have a
final scheduled maturity date earlier than the Revolving Termination Date;
(C) (I) as of the Incremental Amendment Date, shall have a
Weighted Average Life to Maturity not shorter than any then-existing
Class of Term Loans and (II) subject to the foregoing, shall have an
amortization schedule as determined by the Borrower and the applicable
Incremental Term Loan arranger(s);
(D) shall have an all-in-yield (whether in the form of interest
rate margin, OID or otherwise) determined by the Borrower and the
applicable Incremental Term Lenders; provided that the Applicable
Percentage and amortization for an Incremental Term Loan Increase shall
be (I) the Applicable Percentage and amortization for the Class being
increased or (II) higher than the Applicable Percentage for the Class being
increased as long as the Applicable Percentage for the Class being
increased shall be automatically increased as and to the extent necessary to
eliminate such deficiency;
(E) shall have fees determined by the Borrower and the
applicable Incremental Term Loan arranger(s); and
(F) may participate on (I) a pro rata basis, less than pro rata
basis or greater than pro rata basis in any voluntary prepayments of any
then-existing Class of Term Loans and (II) a pro rata basis or less than pro
rata basis (but not on a greater than pro rata basis (except for prepayments
of any Class or Classes of Term Loans with a Maturity Date preceding the
Maturity Date of the remaining Classes of Term Loans then outstanding or
made with the proceeds of Refinancing Facilities)) in any mandatory
prepayments of any existing Class of Term Loans hereunder;
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(ii) the Incremental Revolving Commitments and Incremental
Revolving Loans:
(A) (I) shall rank pari passu in right of payment with the
Obligations, (II) shall be secured by the Collateral and shall rank pari
passu in right of security with the Obligations and (III) shall be guaranteed
by the Guarantors;
(B) (I) shall not have a final scheduled maturity date or
commitment reduction date earlier than the Revolving Termination Date
with respect to the Initial Revolving Credit Commitments and (II) shall
not have any scheduled amortization or mandatory commitment reduction
prior to the Revolving Termination Date with respect to the Initial
Revolving Credit Commitments;
(C) shall have an all-in-yield (whether in the form of interest
rate margin, OID or otherwise) determined by the Borrower and the
applicable Incremental Revolving Lenders; provided that the Applicable
Percentage for a Revolving Commitment Increase shall be (I) the
Applicable Percentage for the Class being increased or (II) higher than the
Applicable Percentage for the Class being increased as long as the
Applicable Percentage for the Class being increased shall be automatically
increased as and to the extent necessary to eliminate such deficiency;
(D) shall have fees determined by the Borrower and the
applicable Incremental Revolving Commitment arranger(s);
(E) shall provide that the borrowing and repayment (except for
(1) payments of interest and fees at different rates on Incremental
Revolving Commitments (and related outstandings), (2) repayments
required upon the Maturity Date of the Incremental Revolving
Commitments and (3) repayment made in connection with a permanent
repayment and termination of commitments (in accordance with clause (F)
below)) of Loans with respect to Incremental Revolving Commitments
after the associated Incremental Facility Closing Date shall be made on a
pro rata basis or less than a pro rata basis (but not more than a pro rata
basis) with all other Revolving Credit Commitments then existing on the
Incremental Facility Closing Date; and
(F) may provide that the permanent repayment of Revolving
Credit Loans with respect to, and termination or reduction of, Incremental
Revolving Commitments after the associated Incremental Facility Closing
Date be made on a pro rata basis or less than pro rata basis (but not on a
greater than pro rata basis other than with respect to any termination of
undrawn Revolving Credit Commitments or a permanent repayment of
any Class of Revolving Credit Commitments (1) with the proceeds of a
Refinancing Facility or (2) that mature earlier than other outstanding
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Classes of Revolving Credit Commitments) with all other Revolving
Credit Commitments.
(e) Incremental Amendment. Commitments in respect of Incremental Term
Loans and Incremental Revolving Commitments shall become additional Commitments pursuant
to an amendment (an “Incremental Amendment”) to this Credit Agreement and, as appropriate,
the other Credit Documents, executed by the Borrower, each Incremental Lender providing such
Commitments, the Administrative Agent and, for purposes of any election and/or increase to the
Swingline Sublimit or L/C Sublimit, the Swingline Lender and each L/C Issuer. The Incremental
Amendment may, without the consent of any other Credit Party, the Administrative Agent or
Lender, effect such amendments to this Credit Agreement and the other Credit Documents as
may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the
Borrower, to effect the provisions of this Section 2.18, including any amendments necessary to
establish the Incremental Loans and/or Incremental Commitments as a new Class of Loans, to
provide to the Lenders of any Class of Loans or Commitments hereunder the benefit of any term
or provision that is added under any Incremental Amendment for the benefit of the Lenders of an
Incremental Facility (including to the extent necessary or advisable to allow any Incremental
Facility to be an Incremental Increase) and such other technical amendments as may be
necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower
in connection with the establishment of such new Class or tranche, in each case on terms
consistent with this Section 2.18. The Borrower will use the proceeds of the Incremental Term
Loans and Incremental Revolving Commitments for any purpose not prohibited by this
Agreement.
(f) Reallocation of Revolving Credit Exposure. Upon any Incremental
Facility Closing Date on which Incremental Revolving Commitments are effected through
Refinancing Amendment pursuant to this Section 2.18, (a) each of the Revolving Credit Lenders
shall assign to each of the Incremental Revolving Lenders, and each of the Incremental
Revolving Lenders shall purchase from each of the Revolving Credit Lenders, at the principal
amount thereof, such interests in the Incremental Revolving Loans outstanding on such
Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all
such assignments and purchases, such Revolving Credit Loans will be held by existing
Revolving Credit Lenders and Incremental Revolving Lenders ratably in accordance with their
Revolving Credit Commitments after giving effect to the addition of such Incremental Revolving
Commitments to the Revolving Credit Commitments, (b) each Incremental Revolving
Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan
made thereunder shall be deemed, for all purposes, a Revolving Credit Loan and (c) each
Incremental Revolving Lender shall become a Lender with respect to the Incremental Revolving
Commitments and all matters relating thereto. The Administrative Agent and the Lenders hereby
agree that the minimum borrowing and prepayment requirements in Section 2.02(a) and
2.06(a)(i) of this Agreement shall not apply to the transactions effected pursuant to the
immediately preceding sentence.
(g) The Incremental Term Loans made under each Incremental Term Loan
Increase shall be made by the applicable Lenders participating therein pursuant to the procedures
set forth in Section 2.01 and 2.02 and on the date of the making of such Incremental Term Loans,
and notwithstanding anything to the contrary set forth in Section 2.01 and 2.02, such Incremental
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Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans
under the applicable Class of Term Loans on a pro rata basis (based on the relative sizes of the
various outstanding Borrowings), so that each Lender under such Class will participate
proportionately in each then outstanding Borrowing of Term Loans of such Class; provided that
Escrow Incremental Term Loans shall not be deemed to be outstanding under this Agreement or
any other Credit Document for any purposes hereof (including, without limitation, for purposes
of any financial calculation, the definition of “Obligations,” the definition of “Required Lenders”
or Section 9 or Section 11.01 hereof) and the obligations with respect thereto shall not be
recourse to any Credit Party, in each case, unless and until the Escrow Assumption with respect
thereto has occurred and the Escrow Assumption shall only be permitted if the conditions set
forth in section 2.18(c) are satisfied as of the date of such Escrow Assumption
(h) This Section 2.18 shall supersede any provisions in Section 2.12 or 11.01
to the contrary.
Section 2.19. Amend and Extend Transactions.
(a) The Borrower may, by written notice to the Administrative Agent from
time to time, request an extension (each, an “Extension”) of the maturity or termination date of
any Class of Revolving Credit Commitments and/or Term Loans to the extended maturity or
termination date specified in such notice. Such notice shall set forth (i) the amount of the
applicable Class of Revolving Credit Commitments and/or Term Loans to be extended (which
shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000), (ii) the
date on which such Extensions are requested to become effective (which shall be not less than
five (5) Business Days nor more than 60 days after the date of such Extension request (or such
longer or shorter periods as the Administrative Agent shall reasonably agree)) and (iii)
identifying the relevant Class of Revolving Credit Commitments and/or Term Loans to which
the Extension request relates. Each Lender of the applicable Class shall be offered (an
“Extension Offer”) an opportunity to participate in such Extension on a pro rata basis and on the
same terms and conditions as each other Lender of such Class pursuant to procedures established
by, or reasonably acceptable to, the Administrative Agent. If the aggregate principal amount of
Term Loans (calculated on the face amount thereof) or Revolving Credit Commitments in
respect of which Lenders shall have accepted the relevant Extension Offer shall exceed the
maximum aggregate principal amount of Term Loans or Revolving Credit Commitments, as
applicable, offered to be extended by the Borrower pursuant to such Extension Offer, then the
Term Loans or Revolving Credit Commitments, as applicable, of Lenders of the applicable Class
shall be extended ratably up to such maximum amount based on the respective principal amounts
(but not to exceed actual holdings of record) with respect to which such Lenders have accepted
such Extension Offer.
(b) It shall be a condition precedent to the effectiveness of any Extension that
(i) no Default or Event of Default shall have occurred and be continuing immediately prior to
and immediately after giving effect to such Extension, (ii) the representations and warranties set
forth in Article 6 and in each other Credit Document shall be true and correct in all material
respects on and as of the date of such Extension, (iii) the L/C Issuer and the Swingline Lender
shall have consented to any Extension of the Revolving Credit Commitments, to the extent that
such extension provides for the issuance of Letters of Credit or making of Swingline Loans at
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any time during the extended period and (iv) the terms of such Extended Revolving
Commitments and Extended Term Loans shall comply with Section 2.19(c).
(c) The terms of each Extension shall be determined by the Borrower and the
applicable extending Lender and set forth in an Extension Amendment; provided that (i) the final
maturity date of any Extended Term Loan or Extended Revolving Commitment shall be no
earlier than the maturity or termination date of the Class of Term Loans or Revolving Credit
Commitments being extended, (ii) (A) there shall be no scheduled amortization or mandatory
commitment reduction of the Extended Revolving Commitments and (B) the Weighted Average
Life to Maturity of the Extended Term Loans shall be no shorter than the remaining Weighted
Average Life to Maturity of the Class of Term Loans being extended, (iii) the Extended
Revolving Loans and the Extended Term Loans will rank pari passu in right of payment and
with respect to security with the Revolving Credit Loans and the Term Loans and shall be
guaranteed by the Guarantors, (iv) the interest rate margin, rate floors, fees, original issue
discounts and premiums applicable to any Extended Term Loans or Extended Revolving
Commitments (and the Extended Revolving Loans thereunder) shall be determined by the
Borrower and the lenders providing such Extended Term Loans or Extended Revolving
Commitments, as applicable, (v) none of the obligors or guarantors with respect to such
Extended Term Loans or Extended Revolving Commitments shall be a Person that is not a Credit
Party and (vi) to the extent the terms of the Extended Term Loans or the Extended Revolving
Commitments are inconsistent with the terms set forth herein (except as set forth in clause (i)
through (v) above), such terms shall be reasonably satisfactory to the Administrative Agent.
(d) In connection with any Extension, the Borrower, the Administrative Agent
and each applicable extending Lender shall execute and deliver to the Administrative Agent an
amendment (an “Extension Amendment”) and such other documentation as the Administrative
Agent shall reasonably specify to evidence the Extension. The Administrative Agent shall
promptly notify each Lender as to the effectiveness of each Extension. Any Extension
Amendment may, without the consent of any other Lender, effect such amendments to this
Agreement and the other Credit Documents as may be necessary or appropriate, in the
reasonable opinion of the Administrative Agent and the Borrower, to implement the terms of any
such Extension, including any amendments necessary to establish Extended Term Loans or
Extended Revolving Commitments as a new Class or tranche of Term Loans or Revolving Credit
Commitments, as applicable, and such other technical amendments as may be necessary or
appropriate in the reasonable opinion of the Administrative Agent and the Borrower in
connection with the establishment of such new Class or tranche (including to preserve the pro
rata treatment of the extended and non-extended Classes and to provide for the reallocation of
participation in Letters of Credit or Swingline Loans upon the expiration or termination of the
commitments under any Class), in each case on terms not inconsistent with this Section 2.19).
Section 2.20. Refinancing Facilities.
(a) The Borrower may, by written notice to the Administrative Agent from
time to time, request (x) Refinancing Revolving Commitments to replace all or a portion of any
existing Class of Revolving Credit Commitments and (y) Refinancing Term Loans to refinance
all or a portion of any existing Class of Term Loans (with respect to a particular Refinancing
Commitment or Refinancing Loan, such existing Revolving Credit Commitments or Loans,
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“Refinanced Debt”). Such notice shall set forth (i) the amount of the applicable Refinancing
Facility (which shall be in minimum increments of $1,000,000 and a minimum amount of
$5,000,000), (ii) the date on which the applicable Refinancing Facility is to become effective and
(iii) whether such Refinancing Facilities are Refinancing Revolving Commitments or
Refinancing Term Loans. The Borrower may in its sole discretion seek Refinancing Facilities
from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole
discretion) or any Additional Lender.
(b) Refinancing Loans. On any Refinancing Facility Closing Date on which
any Refinancing Term Commitments of any Class are effected, subject to the satisfaction of the
terms and conditions in this Section 2.20, (i) each Refinancing Term Lender of such Class shall
make a Loan to the Borrower (a “Refinancing Term Loan”) in an amount equal to its
Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such
Class shall become a Lender hereunder with respect to the Refinancing Term Commitment of
such Class and the Refinancing Term Loans of such Class made pursuant thereto. On any
Refinancing Facility Closing Date on which any Refinancing Revolving Commitments of any
Class are effected, subject to the satisfaction of the terms and conditions in this Section 2.20, (i)
each Refinancing Revolving Lender of such Class shall make its Commitment available to the
Borrower (when borrowed, a “Refinancing Revolving Loan” and collectively with any
Refinancing Term Loan, a “Refinancing Loan”) in an amount equal to its Refinancing
Revolving Commitment of such Class and (ii) each Refinancing Revolving Lender of such Class
shall become a Lender hereunder with respect to the Refinancing Revolving Commitment of
such Class and the Refinancing Revolving Loans of such Class made pursuant thereto.
(c) Effectiveness of Refinancing Amendment. The effectiveness of any
Refinancing Amendment, and the Refinancing Commitments thereunder, shall be subject to the
satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following
conditions, together with any other conditions set forth in the Refinancing Amendment:
(i) after giving effect to such Refinancing Commitments, the
conditions of Sections 5.02(a) and (b) shall be satisfied (it being understood that
all references to “the date of such Credit Extension” or similar language in such
Section 5.02 shall be deemed to refer to the effective date of such Refinancing
Amendment);
(ii) each Refinancing Commitment shall be in an aggregate principal
amount that is not less than $5,000,000 and shall be in an increment of $1,000,000
(provided that such amount may be less than $5,000,000 and not in an increment
of $1,000,000 if such amount is equal to (x) the entire outstanding principal
amount of the Refinanced Debt that is in the form of Term Loans or (y) the entire
principal amount of Refinanced Debt that is in the form of Revolving Credit
Commitments); and
(iii) to the extent reasonably requested by the Administrative Agent,
receipt by the Administrative Agent of (i) customary legal opinions, board
resolutions and officers’ certificates consistent with those delivered on the
Closing Date (conformed as appropriate) other than changes to such legal
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opinions resulting from a Change in Law, change in fact or change to counsel’s
form of opinion reasonably satisfactory to the Administrative Agent and (ii)
reaffirmation agreements and/or such amendments to the Collateral Documents as
may be reasonably requested by the Administrative Agent in order to ensure that
such Refinancing Lenders are provided with the benefit of the applicable Credit
Documents.
(d) Required Terms. The terms, provisions and documentation of the
Refinancing Term Loans and Refinancing Term Commitments or the Refinancing Revolving
Loans and Refinancing Revolving Commitments, as the case may be, of any Class shall be as
agreed between the Borrower and the applicable Refinancing Lenders providing such
Refinancing Commitments, and except as otherwise set forth herein, to the extent not identical to
any Class of Term Loans or Revolving Credit Commitments, as applicable, each existing on the
Refinancing Facility Closing Date, shall be consistent with clauses (i) and (ii) below, as
applicable, and otherwise reasonably satisfactory to the Administrative Agent. In any event:
(i) the Refinancing Term Loans:
(A) (I) shall rank pari passu in right of payment with the
Obligations, (II) shall be secured by the Collateral and shall rank pari
passu in right of security with the Obligations and (III) shall be guaranteed
by the Guarantors;
(B) as of the Refinancing Facility Closing Date, shall not have
a final scheduled maturity date earlier than the Maturity Date of the
Refinanced Debt;
(C) (I) as of the Refinancing Facility Closing Date, shall not
have a Weighted Average Life to Maturity shorter than the remaining
Weighted Average Life to Maturity of the Refinanced Debt and (II) shall
have an amortization schedule as determined by the Borrower and the
applicable Refinancing Lenders;
(D) shall have an all-in-yield (whether in the form of interest
rate margin, OID or otherwise) determined by the Borrower and the
applicable Refinancing Term Lenders;
(E) shall have fees determined by the Borrower and the
applicable Refinancing Term Loan arranger(s);
(F) may participate on (I) a pro rata basis, less than pro rata
basis or greater than pro rata basis in any voluntary prepayments of Term
Loans hereunder and (II) a pro rata basis or less than pro rata basis (but
not on a greater than pro rata basis (except for prepayments of any Class
or Classes of Term Loans with a Maturity Date preceding the Maturity
Date of the remaining Classes of Term Loans then outstanding or made
with the proceeds of Refinancing Facilities)) in any mandatory
prepayments of Term Loans hereunder; and
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(G) shall not have a greater principal amount than the principal
amount of the Refinanced Debt plus accrued interest, fees, premiums (if
any) and penalties payable by the terms of such tranche of Incremental
Term Loans and reasonable fees, expenses, OID and upfront fees
associated with the incurrence of such Refinancing Term Loans; and
(ii) the Refinancing Revolving Commitments and Refinancing
Revolving Loans:
(A) (I) shall rank pari passu in right of payment with the
Obligations, (II) shall be secured by the Collateral and shall rank pari
passu in right of security with the Obligations and (III) shall be guaranteed
by the Guarantors;
(B) shall not have a final scheduled maturity date or
commitment reduction date earlier than the Maturity Date or commitment
reduction date, respectively, with respect to the Refinanced Debt;
(C) shall have an all-in-yield (whether in the form of interest
rate margin, OID or otherwise) determined by the Borrower and the
applicable Refinancing Revolving Lenders;
(D) shall have fees determined by the Borrower and the
applicable Refinancing Revolving Commitments arranger(s);
(E) shall provide that the borrowing and repayment (except for
(1) payments of interest and fees at different rates on Refinancing
Revolving Commitments (and related outstandings), (2) repayments
required upon the Maturity Date of the Refinancing Revolving
Commitments and (3) repayment made in connection with a permanent
repayment and termination of commitments (in accordance with clause (F)
below)) of Loans with respect to Refinancing Revolving Commitments
after the associated Refinancing Facility Closing Date shall be made on a
pro rata basis or less than a pro rata basis (but not more than a pro rata
basis) with all other Revolving Credit Commitments then existing on the
Refinancing Facility Closing Date,
(F) may provide that the permanent repayment of Revolving
Credit Loans with respect to, and termination or reduction of, Refinancing
Revolving Commitments after the associated Refinancing Facility Closing
Date be made on a pro rata basis or less than pro rata basis (but not on a
greater than pro rata basis other than with respect to any termination of
undrawn Revolving Credit Commitments or a permanent repayment of
any Class of Revolving Credit Commitments (1) with the proceeds of a
Refinancing Facility or (2) that mature earlier than other outstanding
Classes of Revolving Credit Commitments) with all other Revolving
Credit Commitments, and
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(G) shall not have a greater principal amount than the principal
amount of the Refinanced Debt plus accrued interest, fees, premiums (if
any) and penalties payable by the terms of such tranche of Revolving
Credit Loans and reasonable fees, expenses, OID and upfront fees
associated with the incurrence of such Refinancing Revolving
Commitments;
(e) Refinancing Amendment. Commitments in respect of Refinancing Term
Loans and Refinancing Revolving Commitments shall become additional Commitments pursuant
to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the
other Credit Documents, executed by the Borrower, each Refinancing Lender providing such
Commitments and the Administrative Agent. The Refinancing Amendment may, without the
consent of any other Credit Party, Administrative Agent or Lender, effect such amendments to
this Agreement and the other Credit Documents as may be necessary or appropriate, in the
reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this
Section 2.20, including any amendments necessary to establish the Refinancing Loans and/or
Refinancing Commitments as a new Class or tranche of Loans and such other technical
amendments as may be necessary or appropriate in the reasonable opinion of the Administrative
Agent and the Borrower in connection with the establishment of such new Class or tranche
(including to preserve the pro rata treatment of the refinanced and non-refinanced Classes or
tranches and to provide for the reallocation of participation in Letters of Credit or Swingline
Loans upon the expiration or termination of the commitments under any Class or tranche), in
each case on terms consistent with this Section 2.20. The Borrower will use the proceeds of the
Refinancing Term Loans and Refinancing Revolving Commitments to extend, renew, replace,
repurchase, retire or refinance, substantially concurrently, the applicable Refinanced Debt.
(f) Reallocation of Revolving Credit Exposure. Upon any Refinancing
Facility Closing Date on which Refinancing Revolving Commitments are effected pursuant to
this Section 2.20, (a) each of the Revolving Credit Lenders shall assign to each of the
Refinancing Revolving Lenders, and each of the Refinancing Revolving Lenders shall purchase
from each of the Revolving Credit Lenders, at the principal amount thereof, such interests in the
Refinancing Revolving Loans outstanding on such Refinancing Facility Closing Date as shall be
necessary in order that, after giving effect to all such assignments and purchases, such Revolving
Credit Loans will be held by existing Revolving Credit Lenders and Refinancing Revolving
Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to
the addition of such Refinancing Revolving Commitments to the Revolving Credit
Commitments, (b) each Refinancing Revolving Commitment shall be deemed for all purposes a
Revolving Credit Commitment and each Loan made thereunder shall be deemed, for all
purposes, a Revolving Credit Loan and (c) each Refinancing Revolving Lender shall become a
Lender with respect to the Incremental Revolving Commitments and all matters relating thereto.
The Administrative Agent and the Lenders hereby agree that the minimum borrowing and
prepayment requirements in Section 2.02(a) and 2.06(a)(i) of this Agreement shall not apply to
the transactions effected pursuant to the immediately preceding sentence.
(g) This Section 2.20 shall supersede any provisions in Section 2.12 or 11.01
to the contrary.
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ARTICLE 3
TAXES, YIELD PROTECTION AND ILLEGALITY
Section 3.01. Taxes.
(a) Payments Free of Taxes; Obligation to Withhold; Payments on Account of
Taxes.
(i) Any and all payments by or on account of any obligation of the
Credit Parties hereunder or under any other Credit Document shall to the extent
permitted by applicable Laws be made free and clear of and without reduction or
withholding for any Taxes. If, however, applicable Laws require any Credit Party
or the Administrative Agent to withhold or deduct any Tax, such Tax shall be
withheld or deducted in accordance with such Laws as determined by such Credit
Party or the Administrative Agent, as the case may be, upon the basis of the
information and documentation to be delivered pursuant to subsection (e) below.
(ii) If the Credit Parties or the Administrative Agent shall be required
by the Internal Revenue Code to withhold or deduct any Taxes, including both
United States federal backup withholding and withholding taxes, from any
payment, then (A) the Administrative Agent shall withhold or make such
deductions as are determined by the Administrative Agent to be required based
upon the information and documentation it has received pursuant to subsection (e)
below, (B) the Administrative Agent shall timely pay the full amount withheld or
deducted to the relevant Governmental Authority in accordance with the Internal
Revenue Code, and (C) to the extent that the withholding or deduction is made on
account of Indemnified Taxes or Other Taxes, the sum payable by the Credit
Parties shall be increased as necessary so that after any required withholding or
the making of all required deductions (including any withholding or deductions
applicable to additional sums payable under this Section) the Administrative
Agent, any Lender or the L/C Issuer, as the case may be, receives an amount
equal to the sum it would have received had no such withholding or deduction
been made.
(iii) If any Credit Party or the Administrative Agent shall be required
by any applicable Laws other than the Internal Revenue Code to withhold or
deduct any Taxes from any payment, then such Credit Party or the Administrative
Agent, as required by such Laws, shall withhold or make such deductions as are
determined by it to be required based upon the information and documentation it
has received pursuant to subsection (e) below, such Credit Party or the
Administrative Agent, to the extent required by such Laws, shall timely pay the
full amount so withheld or deducted by it to the relevant Governmental Authority
in accordance with such Laws, and to the extent that the withholding or deduction
is made on account of Indemnified Taxes or Other Taxes, the sum payable by
such Credit Party shall be increased as necessary so that after any required
withholding or the making of all required deductions (including any withholding
or deductions applicable to additional sums payable under this Section) the
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Administrative Agent, Lender or L/C Issuer, as the case may be, receives an
amount equal to the sum it would have received had no such withholding or
deduction been made.
(b) Payment of Other Taxes by the Credit Parties. Without duplication of
other amounts payable by the Borrower under this Section 3.01, the Credit Parties shall timely
pay any Other Taxes to the relevant Governmental Authority, or at the option of the
Administrative Agent timely reimburse it for the payment of any Other Taxes, in accordance
with applicable Laws.
(c) Tax Indemnification.
(i) Without limiting the provisions of subsection (a) or (b) above, the
Credit Parties shall, and do hereby, indemnify the Administrative Agent, each
Lender and the L/C Issuer, and shall make payment in respect thereof within 10
days after demand therefor, for the full amount of any Indemnified Taxes or Other
Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) paid or payable by the Credit
Parties or the Administrative Agent or paid by the Administrative Agent, such
Lender or the L/C Issuer, as the case may be, whether or not such Indemnified
Taxes or Other Taxes were correctly or legally imposed or asserted by the
relevant Governmental Authority. A certificate as to the amount of any such
payment or liability delivered to the Borrower by a Lender or the L/C Issuer (with
a copy to the Administrative Agent), or by the Administrative Agent on its own
behalf or on behalf of a Lender or the L/C Issuer, shall be conclusive absent
manifest error.
(ii) Without limiting the provisions of subsection (a) or (b) above, each
Lender and the L/C Issuer shall, and does hereby, indemnify each Credit Party
and the Administrative Agent, and shall make payment in respect thereof within
10 days after demand therefor, against (i) any and all Taxes and any and all
related losses, claims, liabilities, penalties, interest and expenses (including the
reasonable and documented out-of-pocket fees, charges and disbursements of any
counsel for each Credit Party and the Administrative Agent) incurred by or
asserted against such Credit Party or the Administrative Agent by any
Governmental Authority as a result of the failure by such Lender or the L/C
Issuer, as the case may be, to deliver, or as a result of the inaccuracy, inadequacy
or deficiency of, any documentation required to be delivered by such Lender or
the L/C Issuer, as the case may be, to such Credit Party or the Administrative
Agent pursuant to subsection (e) and (ii) any Excluded Taxes attributable to such
Lender, in each case, that are payable or paid by the Administrative Agent in
connection with this Credit Agreement or any other Credit Document, and any
reasonable expenses arising therefrom or with respect thereto, whether or not such
Taxes were correctly or legally imposed or asserted by the relevant Government
Authority. Each Lender and the L/C Issuer hereby authorizes the Administrative
Agent to set off and apply any and all amounts at any time owing to such Lender
or the L/C Issuer, as the case may be, under this Credit Agreement or any other
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Credit Document against any amount due to the Administrative Agent under this
clause (ii). The agreements in this clause (ii) shall survive the resignation and/or
replacement of the Administrative Agent, any assignment of rights by, or the
replacement of, a Lender or the L/C Issuer, the termination of the Commitments
and the repayment, satisfaction or discharge of all other Obligations.
(d) Evidence of Payments. As soon as practicable, after any payment of Taxes
by any Credit Party to a Governmental Authority as provided in this Section 3.01, the Credit
Party shall deliver (or cause to be delivered) to the Administrative Agent the original or a
certified copy of a receipt issued by such Governmental Authority evidencing such payment, a
copy of any return required by Law to report such payment or other evidence of such payment
reasonably satisfactory to the Administrative Agent.
(e) Status of Lenders; Tax Documentation.
(i) Each Lender shall deliver to the Borrower and to the
Administrative Agent, at the time or times prescribed by applicable Laws or when
reasonably requested by the Borrower or the Administrative Agent, such properly
completed and executed documentation prescribed by applicable Laws or by the
taxing authorities of any jurisdiction and such other reasonably requested
information as will permit the Borrower or the Administrative Agent, as the case
may be, to determine whether or not payments made hereunder or under any other
Credit Document are subject to Taxes, if applicable, the required rate of
withholding or deduction, such Lender’s entitlement to any available exemption
from, or reduction of, applicable Taxes in respect of all payments to be made to
such Lender by the Borrower pursuant to this Credit Agreement or otherwise to
establish such Lender’s status for withholding tax purposes in the applicable
jurisdiction and (D) whether or not payments made hereunder or under any other
Credit Document are subject to backup withholding taxes or information reporting
requirement. Notwithstanding anything to the contrary in this Section 3.01(e)(i),
the completion, execution and submission of such documentation (other than such
documentation set forth in Section 3.01(e)(ii)(A), (ii)(B) and (ii)(C) below) shall
not be required if in the Lender’s reasonable judgment such completion, execution
or submission would subject such Lender to any material unreimbursed cost or
expense or would materially prejudice the legal or commercial position of such
Lender.
(ii) Without limiting the generality of the foregoing, if the Borrower is
a resident for tax purposes in the United States:
(A) Any Lender that is a “United States person” within the
meaning of Section 7701(a)(30) of the Internal Revenue Code shall deliver
to the Borrower and the Administrative Agent on or prior to the date on
which such Lender becomes a Lender under this Credit Agreement (and
from time to time thereafter upon the request of such Borrower and the
Administrative Agent) executed originals of Internal Revenue Service
Form W-9 or such other documentation or information prescribed by
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applicable Laws or reasonably requested by the Borrower or the
Administrative Agent as will enable the Borrower or the Administrative
Agent, as the case may be, to determine whether or not such Lender is
subject to backup withholding or information reporting requirements.
(B) Each Foreign Lender to the extent that it is legally entitled
to do so shall deliver to the Borrower and the Administrative Agent (in
such number of copies as shall be requested by the recipient) on or prior to
the date on which such Foreign Lender becomes a Lender under this
Credit Agreement (and from time to time thereafter upon the request of the
Borrower or the Administrative Agent, but only if such Foreign Lender is
legally entitled to do so), whichever of the following is applicable:
(1) executed originals of Internal Revenue Service
Form W-8 BEN or W-8 BEN-E, as applicable, claiming eligibility
for benefits of an income tax treaty to which the United States is a
party, with respect to (x) payments of interest under any Credit
Document pursuant to the “interest” article of such tax treaty, and
(y) any other applicable payments under any Credit Document
pursuant to the “business profits” or “other income” article of such
tax treaty,
(2) executed originals of Internal Revenue Service
Form W-8 ECI,
(3) to the extent a Foreign Lender is not the beneficial
owner, executed originals of Internal Revenue Service Form W-8
IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or
W-8BEN-E, a certificate as required under Section
3.01(e)(ii)(B)(4), IRS Form W-8, and/or other certification
documents from each beneficial owner, as applicable; provided
that if the Foreign Lender is a partnership and one or more direct
or indirect partners of such Foreign Lender are claiming the
portfolio interest exemption, such Foreign Lender may provide a
certificate as required under Section 3.01(e)(ii)(B)(4) on behalf of
each such direct and indirect partner,
(4) in the case of a Foreign Lender claiming the
benefits of the exemption for portfolio interest under section
881(c) of the Internal Revenue Code, (x) a certificate to the effect
that such Foreign Lender is not (A) a “bank” within the meaning of
section 881(c)(3)(A) of the Internal Revenue Code, (B) a “10
percent shareholder” of the Borrower within the meaning of
section 881(c)(3)(B) of the Internal Revenue Code, or (C) a
“controlled foreign corporation” described in section 881(c)(3)(C)
of the Internal Revenue Code and (y) executed originals of Internal
Revenue Service Form W-8 BEN or W-8 BEN-E, as applicable, or
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(5) executed originals of any other form prescribed by
applicable Laws as a basis for claiming exemption from or a
reduction in United States federal withholding tax together with
such supplementary documentation as may be prescribed by
applicable Laws to permit the Borrower or the Administrative
Agent to determine the withholding or deduction required to be
made.
(C) If a payment made to a Lender under any Credit Document
would be subject to United States 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 Internal Revenue Code, as applicable), such
Lender shall deliver to the Administrative Agent and the Borrower at the
time or times prescribed by Law and at such time or times reasonably
requested by the Borrower or the Administrative Agent such
documentation prescribed by applicable Law (including as prescribed by
Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such
additional documentation reasonably requested by the Borrower or the
Administrative Agent as may be necessary for the Borrower and the
Administrative Agent to comply with their obligations under FATCA and
to determine that such Lender has complied with such Lender’s
obligations under FATCA or to determine the amount to deduct and
withhold from such payment. Solely for purposes of this clause (C),
“FATCA” shall include any amendments made to FATCA after the
Closing Date.
(iii) On or before the date the Administrative Agent becomes a party to
this Agreement, the Administrative Agent shall provide to the Borrower, two
duly-signed, properly completed copies of the IRS Form W-9 or any successor
thereto. At any time thereafter, the Administrative Agent shall provide updated
documentation previously provided or a successor form thereto) when any
documentation previously delivered has expired or become obsolete or invalid or
otherwise upon the reasonable request of the Borrower.
(iv) 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, provide such successor form, or promptly notify the
Borrower and the Administrative Agent in writing of its legal inability to do so
(v) Each Lender shall promptly notify the Borrower and the
Administrative Agent of any change in circumstances that would modify or
render invalid any claimed exemption or reduction, and take such steps as shall
not be materially disadvantageous to it, in the reasonable judgment of such
Lender, and as may be reasonably necessary (including the re-designation of its
Lending Office) to avoid any requirement of applicable Laws of any jurisdiction
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that the Borrower or the Administrative Agent make any withholding or
deduction for taxes from amounts payable to such Lender.
(vi) Each of the Credit Parties shall promptly deliver to the
Administrative Agent or any Lender, as the Administrative Agent or such Lender
shall reasonably request, on or prior to the Closing Date (or such later date on
which it first becomes a Credit Party), and in a timely fashion thereafter, such
documents and forms required by any relevant taxing authorities under the Laws
of any jurisdiction, duly executed and completed by such Credit Party, as are
required to be furnished by such Lender or the Administrative Agent under such
Laws in connection with any payment by the Administrative Agent or any Lender
of Taxes or Other Taxes, or otherwise in connection with the Credit Documents,
with respect to such jurisdiction.
(f) Treatment of Certain Refunds. If the Administrative Agent, any Lender or
the L/C Issuer determines, in its sole discretion, that it has received a refund of any Taxes or
Other Taxes as to which it has been indemnified by any Credit Party or with respect to which any
Credit Party has paid additional amounts pursuant to this Section, it shall pay to such Credit
Party an amount equal to such refund (but only to the extent of indemnity payments made, or
additional amounts paid, by such Credit Party under this Section with respect to the Taxes or
Other Taxes giving rise to such refund), net of all out-of-pocket expenses and net of any loss or
gain realized in the conversion of such funds from or to another currency incurred by the
Administrative Agent, such Lender or the L/C Issuer, as the case may be, and without interest
(other than any interest paid by the relevant Governmental Authority with respect to such
refund); provided that each Credit Party, upon the request of the Administrative Agent, such
Lender or the L/C Issuer, agrees to repay the amount paid over to such Credit Party (plus any
penalties, interest or other charges imposed by the relevant Governmental Authority) to the
Administrative Agent, such Lender or the L/C Issuer in the event the Administrative Agent, such
Lender or the L/C Issuer is required to repay such refund to such Governmental Authority. This
subsection shall not be construed to require the Administrative Agent, any Lender or the L/C
Issuer to make available its tax returns (or any other information relating to its taxes that it deems
confidential) to the Credit Parties, any of their Subsidiaries or any other Person.
(g) Survival. Each party’s obligation under Section 3.01 shall survive the
resignation or replacement of the Administrative Agent or any assignment of rights by, or the
replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or
discharge of all obligations under any Credit Document.
Section 3.02. Illegality. If any Lender reasonably determines that any Law has made it
unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or
its applicable Lending Office to make, maintain or fund Loans whose interest is determined by
reference to the Eurocurrency Rate, or to determine or charge interest rates based upon the
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 in the London
interbank market, then, on notice thereof by such Lender to the Borrower through the
Administrative Agent, any obligation of such Lender to make or continue Eurocurrency Rate
Loans or to convert Base Rate Loans to Eurocurrency Rate Loans shall be suspended and if such
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notice asserts the illegality of such Lender making or maintaining Base Rate Loans the interest
rate on which is determined by reference to the Eurocurrency Rate component of the Base Rate,
the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such
illegality, be determined by the Administrative Agent without reference to the Eurocurrency Rate
component of the Base Rate, in each case until such Lender notifies the Administrative Agent
and the Borrower that the circumstances giving rise to such determination no longer exist. Upon
the Borrower’s receipt of such notice, (x) the Borrower shall, upon demand from such Lender
(with a copy to the Administrative Agent), prepay or, if applicable, convert all of such Lender’s
Eurocurrency Rate Loans to Base Rate Loans (the interest rate on which Base Rate Loans of
such Lender shall, if necessary to avoid such illegality, be determined by the Administrative
Agent without reference to the Eurocurrency Rate component of the Base Rate), either on the last
day of the Interest Period therefor, if such Lender may lawfully continue to maintain such
Eurocurrency Rate Loans to such day, or immediately, if such Lender may not lawfully continue
to maintain such Eurocurrency Rate Loans and (y) if such notice asserts the illegality of such
Lender determining or charging interest rates based upon the Eurocurrency Rate component of
the Base Rate with respect to any Base Rate Loans, the Administrative Agent shall during the
period of such suspension compute the Base Rate applicable to such Lender without reference to
the Eurocurrency Rate component thereof until the Administrative Agent is advised in writing by
such Lender that it is no longer illegal for such Lender to determine or charge interest rates based
upon the Eurocurrency Rate. Upon any such prepayment or conversion, the Borrower shall also
pay accrued interest on the amount so prepaid or converted.
Section 3.03. Inability to Determine Rates. If (x) the Administrative Agent reasonably
determines that for any reason in connection with any request for a Eurocurrency Rate Loan or a
conversion to or continuation thereof that Dollar deposits are not being offered to banks in the
London interbank market, the applicable amount or the applicable Interest Period for such
Eurocurrency Rate Loan, adequate and reasonable means do not exist for determining the
Eurocurrency Rate for any requested Interest Period with respect to a proposed Eurocurrency
Rate Loan, or (y) the Required Lenders notify the Administrative Agent that the Eurocurrency
Rate for any requested Interest Period with respect to a proposed Eurocurrency Rate Loan, or in
connection with an existing or proposed Base Rate Loan which is based on the Eurocurrency
Rate, does not adequately and fairly reflect the cost to such Lenders of funding such Loan, the
Administrative Agent will promptly notify the Borrower and Lenders. Thereafter, (x) the
obligation of the Lenders to make or maintain such Eurocurrency Rate Loans shall be suspended
and (y) in the event of a determination described in the preceding sentence with respect to the
Eurocurrency Rate component of the Base Rate, the utilization of the Eurocurrency Rate
component in determining the Base Rate shall be suspended, in each case until the
Administrative Agent (upon the instruction of the Required Lenders in the case of clause (y) of
the previous sentence) revokes such notice. Upon receipt of such notice, the Borrower may
revoke any pending request for a Borrowing of, conversion to or continuation of Eurocurrency
Rate Loans or, failing that, will be deemed to have converted such request into a request for a
Borrowing of Base Rate Loans or conforming Eurocurrency Rate Loans, as appropriate, in the
amount specified therein.
Section 3.04. Increased Cost; Capital Adequacy.
(a) Increased Costs Generally. If any Change in Law shall:
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(i) impose, modify or deem applicable any reserve, special deposit,
compulsory loan, insurance charge or similar requirement against assets of,
deposits with or for the account of, or credit extended or participated in by, any
Lender (except any reserve requirement reflected in the Eurocurrency Rate or
contemplated by Section 3.04(e) hereof) or the L/C Issuer;
(ii) subject any Lender or the L/C Issuer to any tax of any kind
whatsoever with respect to this Credit Agreement, any Letter of Credit, any
participation in a Letter of Credit or any Eurocurrency Rate Loan made by it, or
change the basis of taxation of payments to such Lender or the L/C Issuer in
respect thereof (except for (A) Indemnified Taxes or Other Taxes covered by
Section 3.01(a) and Section 3.01(b), (B) the imposition of, or any change in the
rate of, any Taxes described in clauses (c) through (f) of the definition of
Excluded Tax and (C) Connection Income Taxes) payable by such Lender or the
L/C Issuer; or
(iii) impose on any Lender or the L/C Issuer or the London interbank
market any other condition, cost or expense affecting this Credit Agreement or
Eurocurrency Rate Loans made by such Lender or any Letter of Credit or
participation therein;
and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurocurrency Rate Loan, the interest on which is determined by reference to the
Eurocurrency Rate (or of maintaining its obligation to make any such Loan), or to increase the
cost to such Lender or the L/C Issuer of participating in, issuing or maintaining any Letter of
Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to
reduce the amount of any sum received or receivable by such Lender or the L/C Issuer hereunder
(whether of principal, interest or any other amount) then, upon request of such Lender or the L/C
Issuer, the Borrower will pay, or cause to be paid, to such Lender or the L/C Issuer, as the case
may be, such additional amount or amounts as will compensate such Lender or the L/C Issuer, as
the case may be, for such additional costs incurred or reduction suffered.
(b) Capital Requirements. If any Lender or the L/C Issuer reasonably
determines that any Change in Law affecting such Lender or the L/C Issuer or any Lending
Office of such Lender or such Lender’s or the L/C Issuer’s holding company, if any, regarding
capital or liquidity requirements has or would have the effect of reducing the rate of return on
such Lender’s or the L/C Issuer’s capital or on the capital of such Lender’s or the L/C Issuer’s
holding company, if any, as a consequence of this Credit Agreement, the Commitments of such
Lender or the Loans made by, or participations in Letters of Credit held by, such Lender, or the
Letters of Credit issued by the L/C Issuer, to a level below that which such Lender or the L/C
Issuer or such Lender’s or the L/C Issuer’s holding company could have achieved but for such
Change in Law (taking into consideration such Lender’s or the L/C Issuer’s policies and the
policies of such Lender’s or the L/C Issuer’s holding company with respect to capital adequacy
and liquidity), then from time to time the Borrower will pay to such Lender or the L/C Issuer, as
the case may be, such additional amount or amounts as will compensate such Lender or L/C
Issuer or such Lender’s or the L/C Issuer’s holding company for any such reduction suffered.
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(c) Certificates for Reimbursement. A certificate of a Lender or the L/C
Issuer setting forth in reasonable detail the amount or amounts necessary to compensate such
Lender or the L/C Issuer or its holding company, as the case may be, as specified in subsection
(a) or (b) of this Section and delivered to the Borrower shall be conclusive absent manifest error.
The Borrower shall pay such Lender or the L/C Issuer, as the case may be, the amount shown as
due on any such certificate within 10 days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any Lender or the L/C
Issuer to demand compensation pursuant to the foregoing provisions of this Section shall not
constitute a waiver of such Lender’s or the L/C Issuer’s right to demand such compensation;
provided that the Borrower shall not be required to compensate a Lender or the L/C Issuer
pursuant to the foregoing provisions of this Section for any increased costs incurred or reductions
suffered more than six months prior to the date that such Lender or the L/C Issuer, as the case
may be, notifies the Borrower of the Change in Law giving rise to such increased costs or
reductions and of such Lender’s or the L/C Issuer’s intention to claim compensation therefor
(except that, if the Change in Law giving rise to such increased costs or reductions is retroactive,
then the six-month period referred to above shall be extended to include the period of retroactive
effect thereof).
(e) Reserves on Eurocurrency Rate Loans. Without duplication of amounts
paid pursuant to the definition of “Eurocurrency Rate,” the Borrower shall pay, or cause to be
paid, to each Lender, as long as such Lender shall be required to comply with any reserve ratio
requirement or analogous requirement of any central banking or financial regulatory authority
imposed in respect of the maintenance of the Commitments or the funding of the Eurocurrency
Rate Loans, such additional costs (expressed as a percentage per annum and rounded upwards, if
necessary, to the nearest five decimal places) equal to the actual costs allocated to such
Commitment or Loan by such Lender (as determined by such Lender in good faith, which
determination shall be conclusive absent manifest error), which shall be due and payable on each
date on which interest is payable on such Loan; provided the Borrower shall have received at
least 10 days’ prior notice (with a copy to the Administrative Agent) of such additional interest
or costs from such Lender. If a Lender fails to give notice 10 days prior to the relevant Interest
Payment Date, such additional interest or costs shall be due and payable 10 days from receipt of
such notice.
Section 3.05. Compensation for Losses. Upon written demand of any Lender (with a
copy to the Administrative Agent) from time to time, which demand shall set forth in reasonable
detail the basis for requesting such compensation, the Borrower shall promptly compensate, or
cause to be compensated, 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
Eurocurrency Rate Loan on a day other than the last day of the Interest Period for such Loan
(whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise);
(b) any failure by the Borrower (for a reason other than the failure of such
Lender to make a Loan) to prepay, borrow, continue or convert any Eurocurrency Rate Loan on
the date or in the amount notified by the Borrower; or
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(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 the Borrower pursuant to Section
11.13;
including any loss or expense (excluding loss of anticipated profits, any foreign exchange losses
or margin) arising from the liquidation or redeployment of funds obtained by it to maintain such
Loan or from fees payable to terminate the deposits from which such funds were obtained or
from the performance of any foreign exchange contract. The Borrower shall also pay, or cause
to be paid, any customary administrative fees charged by such Lender in connection with the
foregoing. A certificate of a Lender setting forth in reasonable detail the amount or amounts
necessary to compensate such Lender as specified in this Section and delivered to the Borrower
shall be conclusive absent manifest error.
Section 3.06. Mitigation Obligations; Replacement of Lenders.
(a) Designation of a Different Lending Office. If any Lender requests
compensation under Section 3.04, or the Borrower is required to pay any additional amount to
any Lender (including the L/C Issuer) or any Governmental Authority for the account of any
Lender pursuant to Section 3.01, or if any Lender (including the L/C Issuer) gives a notice
pursuant to Section 3.02, then such Lender shall use reasonable efforts to designate a different
Lending Office for funding or booking its Loans hereunder or issuing or participating in Letters
of Credit hereunder or to assign its rights and obligations hereunder to another of its offices,
branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i)
would eliminate or reduce amounts payable pursuant to Section 3.01 or 3.04, as the case may be,
in the future, or eliminate the need for the notice pursuant to Section 3.02, as applicable, and (ii)
in each case, would not subject such Lender to any material unreimbursed cost or expense and
would not otherwise be materially disadvantageous to such Lender in any material economic,
legal or regulatory respect; provided that nothing in this Section 3.06(a) shall affect or postpone
any Obligations of the Borrower or the rights of the Lenders under this Article 3. The Borrower
hereby agrees to pay, or cause to be paid, all reasonable costs and expenses incurred by any
Lender in connection with any such designation or assignment.
(b) If any Lender requests compensation by the Borrower under Section 3.04,
the Borrower may, by notice to such Lender (with a copy to the Administrative Agent), suspend
the obligation of such Lender to make or continue Eurocurrency Rate Loans from one Interest
Period to another Interest Period, or to convert Base Rate Loans into Eurocurrency Rate Loans,
until the event or condition giving rise to such request ceases to be in effect (in which case the
provisions of Section 3.06(d) shall be applicable); provided that such suspension shall not affect
the right of such Lender to receive the compensation so requested.
(c) If the obligation of any Lender to make or continue any Eurocurrency Rate
Loan or to convert Base Rate Loans into Eurocurrency Rate Loans shall be suspended pursuant
to Section 3.06(b) hereof, such Lender’s applicable Eurocurrency Rate Loans shall be
automatically converted into Base Rate Loans on the last day(s) of the then current Interest
Period(s) for such Eurocurrency Rate Loans (or, in the case of any immediate conversion
required by Section 3.02, on such earlier date as required by Law) and, unless and until such
Lender gives notice as provided below that the circumstances specified in Section 3.02, 3.03 or
3.04 hereof that gave rise to such conversion no longer exist:
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(i) to the extent that such Lender’s Eurocurrency Rate Loans have
been so converted, all payments and prepayments of principal that would
otherwise be applied to such Lender’s applicable Eurocurrency Rate Loans shall
be applied instead to its Base Rate Loans; and
(ii) all Loans that would otherwise be made or continued from one
Interest Period to another by such Lender as Eurocurrency Rate Loans shall be
made or continued instead as Base Rate Loans (if possible), and all Base Rate
Loans of such Lender that would otherwise be converted into Eurocurrency Rate
Loans shall remain as Base Rate Loans.
(d) If any Lender gives notice to a Borrower (with a copy to the
Administrative Agent) that the circumstances specified in Section 3.01, Section 3.02,
Section 3.03 or Section 3.04 hereof that gave rise to the conversion of such Lender’s
Eurocurrency Rate Loans pursuant to this Section 3.06 no long exist (which such Lender agrees
to do promptly upon such circumstances ceasing to exist) at a time when Eurocurrency Rate
Loans made by other Lenders are outstanding, such Lender’s Base Rate Loans shall be
automatically converted irrespective of whether such conversion results in greater than ten
Interest Periods (as adjusted pursuant to Section 2.02(f)) being outstanding under this
Agreement, on the first day(s) of the next succeeding Interest Period(s) for such outstanding
Eurocurrency Rate Loans, to the extent necessary so that, after giving effect thereto, all Loans
held by the Lenders holding Eurocurrency Rate Loans and by such Lender are held pro rata (as
to principal amounts, interest rate basis, and Interest Periods) in accordance with their respective
Commitments.
(e) Replacement of Lenders. If any Lender requests compensation under
Section 3.04, or if the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01, or if any Lender
gives notice pursuant to Section 3.02, or if any Lender is then a Defaulting Lender, the Borrower
may replace such Lender in accordance with Section 11.13.
Section 3.07. Survival Losses. All of the Borrower’s obligations under this Article 3
shall survive termination of the Commitments hereunder and repayment of the Obligations.
ARTICLE 4
GUARANTY
Section 4.01. The Guaranty.
(a) Each of the Guarantors hereby jointly and severally guarantees to the
Administrative Agent and each of the holders of the Obligations 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
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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 Credit Documents or Swap Contracts, the obligations of each Guarantor (in its
capacity as such) under this Credit Agreement and the other Credit Documents and Swap
Contracts shall be limited to an aggregate amount equal to the largest amount that would not
render such obligations subject to avoidance under the Debtor Relief Laws or any comparable
provisions of any applicable Law.
Section 4.02. Obligations Unconditional.
(a) The obligations of the Guarantors under Section 4.01 are joint and several,
absolute and unconditional, irrespective of the value, genuineness, validity, regularity or
enforceability of any of the Credit Documents or other documents relating to the Obligations, or
any substitution, compromise, 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 that might otherwise constitute a legal or
equitable discharge or defense of a surety or guarantor (other than payment or performance), it
being the intent of this Section 4.02 that the obligations of the Guarantors hereunder shall be
absolute and unconditional under any and all circumstances. Each Guarantor agrees that such
Guarantor shall have no right of subrogation, indemnity, reimbursement or contribution against
any other Guarantor for amounts paid under this Article 4 until such time as the Obligations have
been paid in full and the commitments relating thereto have expired or terminated.
(b) 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; or
(ii) any of the acts mentioned in any of the provisions of any of the
Credit Documents, or other documents relating to the obligations or any other
agreement or instrument referred to therein shall be done or omitted.
(c) With respect to its obligations hereunder, each Guarantor hereby expressly
waives diligence, presentment, demand of payment, protest, notice of acceptance of the guaranty
given hereby and of extensions of credit that may constitute obligations guaranteed hereby,
notices of amendments, waivers, consents and supplements to the Credit Documents and other
documents relating to the Obligations, or the compromise, release or exchange of collateral or
security, and all other notices whatsoever, and any requirement that the Administrative Agent or
any holder of the Obligations exhaust any right, power or remedy or proceed against any Person
under any of the Credit Documents or any other documents relating to the Obligations or any
other agreement or instrument referred to therein, or against any other Person under any other
guarantee of, or security for, any of the Obligations.
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Section 4.03. Reinstatement. Neither the Guarantors’ obligations hereunder nor any
remedy for the enforcement thereof shall be impaired, modified, changed or released in any
manner whatsoever by an impairment, modification, change, release or limitation of the liability
of the Borrower, by reason of the Borrower’s bankruptcy or insolvency or by reason of the
invalidity or unenforceability of all or any portion of the Obligations. In addition, the obligations
of each Guarantor under this Article 4 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 Debtor Relief Law or otherwise, and each Guarantor agrees that it will indemnify
the Administrative Agent and each holder of the Obligations on demand for all reasonable and
documented costs and expenses (including reasonable and documented attorneys’ fees and
disbursements) incurred by the Administrative Agent or such holder of the Obligations in
connection with such rescission or restoration, including any such costs and expenses incurred in
defending against any claim alleging that such payment constituted a preference, fraudulent
transfer or similar payment under any Debtor Relief Law.
Section 4.04. Certain Waivers. Each Guarantor acknowledges and agrees that the
guaranty given hereby may be enforced without the necessity of resorting to or otherwise
exhausting remedies in respect of any other security or collateral interests, and without the
necessity at any time of having to take recourse against the Borrower or any other Person or
against any collateral securing the Obligations or otherwise, and it will not assert any right to
require that action first be taken against the Borrower or any other Person (including any co-
guarantor) or pursuit of any other remedy or enforcement of any other right, and nothing
contained herein shall prevent or limit action being taken against the Borrower hereunder, under
the other Credit Documents or the other documents and agreements relating to the Obligations or
from foreclosing on any security or collateral interests relating hereto or thereto, or from
exercising any other rights or remedies available in respect thereof, if the Guarantors shall not
timely perform their obligations, and the exercise of any such rights and completion of any such
foreclosure proceedings shall not constitute a discharge of the Guarantors’ obligations hereunder
unless as a result thereof, the Obligations shall have been paid in full and the commitments
relating thereto shall have expired or terminated, it being the purpose and intent that the
Guarantors’ obligations hereunder be absolute, irrevocable, independent and unconditional.
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(a) and
through the exercise of rights of contribution pursuant to Section 4.06.
Section 4.05. Remedies. The Guarantors agree that, to the fullest extent permitted by
Law, as between the Guarantors, on the one hand, and holders of the Obligations, 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
specified in Section 9.02)) for purposes of Section 4.01. 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. The Guarantors acknowledge
and agree that their obligations hereunder are secured in accordance with the terms of the
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Collateral Documents and that the holders of the Obligations may exercise their remedies
thereunder in accordance with the terms thereof.
Section 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 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 irrevocably paid in full and the commitments relating thereto shall
have expired or been terminated, and none of the Guarantors shall exercise any such contribution
rights until the Obligations have been irrevocably paid in full and the commitments relating
thereto shall have expired or been terminated.
Section 4.07. Guaranty of Payment; Continuing Guarantee. The guarantee given by the
Guarantors in this Article 4 is a guaranty of payment and not of collection, is a continuing
guaranty, and shall apply to all Obligations whenever arising.
Section 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 Guarantor to honor all of its obligations under
the guaranty given hereby in respect of the 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 the guaranty given hereby, 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 4.08 shall remain in full force and effect until
the termination of the Commitments and the repayment, satisfaction or discharge of all other
Obligations (other than (i) contingent indemnification obligations as to which no claim has been
asserted, (ii) Obligations described in clauses (b) and (c) of the definition thereof and (iii) any
Letter of Credit that has been Cash Collateralized or back-stopped by a letter of credit reasonably
satisfactory to the L/C Issuer or such Letter of Credit has been deemed reissued under another
agreement reasonably acceptable to the L/C Issuer). 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 Guarantor for all purposes of Section
1a(18)(A)(v)(II) of the Commodity Exchange Act.
Section 4.09. Release of Guarantors. If, in compliance with the terms and provisions of
the Credit Documents, any Guarantor ceases to be a Restricted Subsidiary or becomes an
Excluded Subsidiary as a result of a transaction or designation permitted hereunder (any such
Guarantor, a “Transferred Guarantor”), such Transferred Guarantor shall be automatically
released from its obligations under this Agreement (including under Section 11.04 hereof) and its
obligations to pledge and grant any Collateral owned by it pursuant to any Collateral Document
and, so long as the Borrower shall have provided the Administrative Agent and Collateral Agent
such certifications or documents as any such Agent shall reasonably request, the Administrative
Agent and Collateral Agent shall take such actions as are necessary to effect each release
described in this Section 4.09 in accordance with the relevant provisions of the Collateral
Documents; provided, however, that the release of any Subsidiary Guarantor from its obligations
under this Agreement if such Subsidiary Guarantor becomes an Excluded Subsidiary shall only
be permitted if at the time such Subsidiary Guarantor becomes an Excluded Subsidiary of such
type (1) after giving pro forma effect to such release and the consummation of the transaction
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that causes such Person to be an Excluded Subsidiary of such type, the Borrower is deemed to
have made a new Investment in such Person (as if such Person were then newly acquired) and
such Investment is permitted at such time and (2) a Responsible Officer of the Borrower certifies
to the Administrative Agent compliance with the preceding clause (1); provided, further, that no
such release shall occur if such Subsidiary Guarantor continues to be a guarantor in respect of
any Incremental Equivalent Debt, any Refinancing Equivalent Debt or any Permitted
Refinancing in respect of any of the foregoing.
ARTICLE 5
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
Section 5.01. Conditions to the Closing Date. The obligation of the L/C Issuer and each
Lender to make the initial Credit Extensions on the Closing Date shall, in each case, be subject to
satisfaction (or waiver in accordance with Section 11.01) of the following conditions:
(a) Credit Documents. Receipt by the Administrative Agent of executed
counterparts of the following documents, in each case, executed by the Credit Parties party
thereto:
1. this Credit Agreement;
2. the Security Agreement;
3. the Perfection Certificate;
4. the Intellectual Property Security Agreements for filing in the United
States Patent and Trademark Office and the United States Copyright Office;
5. Notes, if requested by a Lender at least three (3) Business Days in advance
of the Closing Date; and
6. a Loan Notice.
(b) Opinions of Counsel. Receipt by the Administrative Agent, on behalf of
itself and the Lenders, of customary opinions of legal counsel from (i) Ropes & Gray LLP, New
York Counsel to the Credit Parties and (ii) Knightlinger & Gray, LLP, Indiana counsel to
Microsemi Corp. – Memory and Storage Solutions.
(c) Organization Documents, Resolutions, Etc. Receipt by the Administrative
Agent of the following:
(i) with respect to each Credit Party, copies of the Organization
Documents of such Credit Party certified to be true and complete as of a recent
date by the appropriate Governmental Authority of the state or other jurisdiction
of its incorporation or organization, where applicable, and certified by a
Responsible Officer of such Credit Party to be true and correct as of the Closing
Date;
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(ii) with respect to each Credit Party, such certificates of resolutions or
other action, incumbency certificates and/or other certificates of Responsible
Officers of such Credit Party 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 Credit
Agreement and the other Credit Documents to which such Credit Party is a party;
and
(iii) good standing certificates for each Credit Party as of recent date in
its state of organization or formation.
(d) Personal Property Collateral. Receipt by the Administrative Agent of (i)
all certificates evidencing any certificated Capital Stock or equity interests of the Borrower’s
direct or indirect Subsidiaries pledged pursuant to the Security Agreement, together with undated
stock powers duly executed in blank attached thereto, and (ii) evidence that all other actions,
recordings and filings required by the Collateral Documents that the Administrative Agent may
deem reasonably necessary to satisfy the Collateral and Guarantee Requirement shall have been
taken, completed or otherwise provided for in a manner reasonably satisfactory to the
Administrative Agent; provided, however, that, to the extent any of the requirements set forth in
clauses (i) and (ii) of this clause (d), including the delivery of documents and instruments
necessary to satisfy the Collateral and Guarantee Requirement, cannot be provided or perfected
after the Borrower’s use of commercially reasonable efforts to do so without undue burden or
expense (except for the execution and delivery of the Security Agreement and perfection of
security interests created thereunder to the extent that a Lien on the Collateral may be perfected
(x) by the filing of a financing statement under the Uniform Commercial Code or (y) by the
delivery of stock certificates of the Borrower and the Material Domestic Subsidiaries that are
Wholly-Owned with respect to which a Lien may be perfected upon closing by the delivery of a
stock certificate), then such requirement shall not constitute conditions precedent to any Credit
Extension on the Closing Date but the Borrower agrees to deliver, or cause to be delivered, such
documents and instruments, or take or cause to be taken such other actions as may be required to
perfect such security interests within the time periods set forth on Schedule 7.15 (subject, in
either case, to extensions approved by the Administrative Agent in its reasonable discretion).
(e) Closing Certificate. Receipt by the Administrative Agent of a certificate
signed by a Responsible Officer of the Borrower as of the Closing Date certifying that the
conditions specified in subsections (g), (h) and (i) of this Section 5.01 have been satisfied as of
the Closing Date.
(f) Fees. Payment of all fees and expenses required to be paid on the Closing
Date (including fees pursuant to the Fee Letter), including the reasonable and documented out-
of-pocket fees and expenses of counsel for the Administrative Agent and the Arrangers that, in
the case of such expenses, have been invoiced at least three Business Days prior to the Closing
Date (except as otherwise reasonably agreed by the Borrower).
(g) Consummation of Microsemi Acquisition. The Microsemi Acquisition
shall have been, or shall substantially concurrently with such initial Credit Extension on the
Closing Date be, consummated in accordance with the terms of the Acquisition Agreement. The
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Acquisition Agreement shall not have been amended or waived, and no consents shall have been
given with respect thereto, in each case, in any material respect by the Borrower and its
Subsidiaries in a manner materially adverse to the Lenders or the Arrangers (in each case, in
their capacity as such) without the consent of the Arrangers provided that (a) any amendment,
waiver or consent that results in a change in the amount of consideration required to consummate
the Microsemi Acquisition shall be deemed not to be materially adverse to the Lenders or the
Arrangers so long as (i) subject to clause (d) below, any reduction shall be applied to reduce the
Term Loan Facility, the use of cash from the Borrower’s balance sheet and the proceeds from
any common equity issuance (if any) on a pro rata basis and (ii) any increase is funded by cash
on the Borrower’s balance sheet or the proceeds of common equity of the Borrower, (b) the
granting of any consent under the Acquisition Agreement that is not materially adverse to the
interests of the Lenders or the Arrangers shall not otherwise constitute an amendment or waiver,
(c) any change to the definition of “Material Adverse Effect” in the Acquisition Agreement shall
be deemed materially adverse to the Lenders and the Arrangers and (d) any reduction in the
purchase price of the Acquisition in excess of 10% shall be deemed materially adverse to the
Lenders and the Arrangers.
(h) Accuracy of Representations and Warranties.
(i) The Specified Representations shall be true and correct in all
material respects (except for representations and warranties that are already
qualified by materiality, which representations and warranties shall be true and
correct after giving effect to such materiality qualifier); and
(ii) the Acquisition Agreement Representations shall be true and
correct in all material respects but only to the extent that the Borrower has the
right (taking into account any applicable cure provisions), pursuant to the
Acquisition Agreement, to terminate its obligations under the Acquisition
Agreement to consummate the Microsemi Acquisition (or the right not to
consummate the Microsemi Acquisition pursuant to the Acquisition Agreement)
as a result of a breach of such representations and warranties.
(i) No Target Material Adverse Effect. Since March 23, 2016, except as set
forth in the disclosure schedules to the Acquisition Agreement, there shall not have been a Target
Material Adverse Effect or the occurrence of any change, effect, event, occurrence, state of facts
or development, which would, individually or in the aggregate, be reasonably likely to have a
Target Material Adverse Effect.
(j) Solvency Certificate. Receipt by the Administrative Agent of the
Solvency Certificate.
(k) Financial Statements. Receipt by the Administrative Agent of (i) the
Historical Financial Statements and (ii) the Pro Forma Financial Statements.
(l) Refinancing. Receipt by the Administrative Agent of reasonably
satisfactory evidence that (A) all indebtedness under that certain Credit Agreement, dated as of
October 12, 2012, by and among the Borrower, KeyBank National Association, as administrative
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agent, and the lenders and other parties thereto (as amended, restated, supplemented or otherwise
modified through the Closing Date) has been paid in full, and all commitments and guaranties in
connection therewith have been terminated and released and (B) the guarantees of the Target
and/or its Subsidiaries, and any security interests granted in the Target, its Subsidiaries and their
assets have been terminated and released under (I) that certain Guarantee and Collateral
Agreement, dated as of January 15, 2016, by and among Microsemi Corporation, the other
Grantors (as defined therein) party thereto and Morgan Stanley Senior Funding, Inc. and (II) that
certain Indenture, dated as of January 15, 2016, by and among Microsemi Corporation, the
guarantors named therein and U.S. Bank National Association (collectively, the “Refinancing”).
(m) Patriot Act. Receipt by the Administrative Agent, at least three (3)
Business Days prior to the Closing Date, of all documentation and other information relating to
the Borrower and the other Credit Parties that are required by regulatory authorities under
applicable “know-your-customer” rules and regulations, including the Act, to the extent
requested by the Administrative Agent in writing from the Borrower at least ten (10) Business
Days prior to the Closing Date.
Without limiting the generality of the provisions of Section 10.04, for purposes of
determining compliance with the conditions specified in this Section 5.01, each Lender that has
signed this Credit 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 reasonable acceptable or satisfactory to a Lender unless the Administrative Agent
shall have received notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.
Section 5.02. Conditions to all Credit Extensions after the Closing Date. The obligation
of each Lender to honor any Request for Credit Extension after the Closing Date is subject to the
satisfaction (or waiver in accordance with Section 11.01) of the following conditions precedent:
(a) The representations and warranties of the Borrower and each other Credit
Party contained in Article 6 or any other Credit 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, however, 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, and except that for purposes of this Section 5.02, the
representations and warranties contained in subsections (a) and (b) of Section 6.05 shall be
deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b),
respectively, of Section 7.01.
(b) Other than in connection with the initial Credit Extensions on the Closing
Date, no Default or Event of Default shall exist immediately before or immediately after giving
effect to such Credit Extension.
(c) The Administrative Agent, the L/C Issuer and/or the Swingline Lender
shall have received a Request for Credit Extension in accordance with the requirements hereof.
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Each Request for Credit Extension (other than a Loan Notice requesting only a
conversion of Loans to other Types of Loans, or a continuation of Eurocurrency Rate Loans)
submitted by the Borrower shall be deemed to be a representation and warranty by the Borrower
that the conditions specified in Section 5.02(a) and (b) have been satisfied (to the extent such
conditions are required to be satisfied with respect to such Credit Extension) on and as of the
date of the applicable Credit Extension.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES
Each of the Credit Parties represent and warrant to the Administrative Agent and the
Lenders, as of the Closing Date, the Amendment No. 1 Effective Date and each other date on
which such representations and warranties are required to be true and correct pursuant to Section
5.02 or otherwise, that:
Section 6.01. Existence, Qualification and Power. Each Credit Party (a) is duly
organized or formed, validly existing and in good standing 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 and (ii) execute, deliver and perform its obligations under the Credit
Documents to which it is a party; and (c) is duly qualified and is licensed and in good standing
(to the extent such concept exists in such jurisdiction) under the Laws of each jurisdiction where
its ownership, lease or operation of properties or the conduct of its business requires such
qualification or license; except, in each case referred to in clause (a) (other than with respect to
the Borrower), (b)(i) or (c), to the extent that failure to do so could not reasonably be expected to
have a Material Adverse Effect.
Section 6.02. Authorization; No Contravention. The execution, delivery and
performance by each Credit Party of each Credit Document to which it is party, (a) have been
duly authorized by all necessary corporate or other organizational action, (b) do not and will not
contravene the terms of any of such Person’s Organization Documents; and (c) do not and will
not conflict with or result in any breach or contravention of, or the creation of any Lien under
(other than as permitted by Section 8.01), or require any payment to be made under any
Contractual Obligation to which such Person is a party or affecting such Person or the properties
of such Person or any of its Restricted Subsidiaries or any order, injunction, writ or decree of any
Governmental Authority or any arbitral award to which such Person or its property is subject; or
violate any Law applicable to such Person; except with respect to any contravention, conflict or
violation referred to in clause (c), to the extent that such contravention, conflict or violation
could not reasonably be expected to have a Material Adverse Effect.
Section 6.03. Governmental Authorization; Other Consents. No approval, consent,
exemption, authorization, or other action by, or notice to, or filing with, any Governmental
Authority or any other Person is necessary or required in connection with the execution, delivery
or performance by, or enforcement against, any Credit Party of this Credit Agreement or any
other Credit Document (other than as have already been obtained and are in full force and effect,
filings to perfect security interests granted pursuant to the Credit Documents (except to the extent
not required to be obtained, taken, given or made or in full force and effect pursuant to the
Collateral and Guarantee Requirement) and those approvals, consents, exemptions,
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authorizations or other actions, notices or filings, the failure of which to obtain or make could not
reasonably be expected to have a Material Adverse Effect).
Section 6.04. Binding Effect. This Credit Agreement has been, and each other Credit
Document, when delivered hereunder, will have been, duly executed and delivered by each
Credit Party that is party thereto. This Credit Agreement constitutes, and each other Credit
Document when so delivered will constitute, a legal, valid and binding obligation of such Credit
Party, enforceable against each Credit Party that is party thereto in accordance with its terms,
except (a) to the extent the enforceability thereof may be limited by applicable Debtor Relief
Laws affecting creditors’ rights generally and by equitable principles of law (regardless of
whether enforcement is sought in equity or at law) and (b) for any filing necessary to perfect
security interests granted pursuant to the Credit Documents.
Section 6.05. Financial Statements.
(a) The Annual Financial Statements fairly present in all material respects the
financial condition of the Borrower and its 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.
(b) The Quarterly Financial Statements fairly present in all material respects
the financial condition of the Borrower and its 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
subject to the absence of footnotes and to normal year-end audit adjustments.
Section 6.06. No Material Adverse Effect. Since the Closing Date, there has been no
event or circumstance, either individually or in the aggregate, that has had or could reasonably be
expected to have a Material Adverse Effect.
Section 6.07. Litigation. There are no actions, suits, investigations, criminal
prosecutions, civil investigative demands, imposition of criminal or civil fines or penalties,
proceedings, claims or disputes pending or, to the knowledge of the Borrower, overtly threatened
or contemplated, at law, in equity, in arbitration or before any Governmental Authority, by or
against the Borrower or any Restricted Subsidiary or against any of their properties or revenues
that either individually or in the aggregate could reasonably be expected to have a Material
Adverse Effect.
Section 6.08. Labor Matters. Except as, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect, there are no strikes or other labor
disputes against the Borrower or any of its Restricted Subsidiaries pending or, to the knowledge
of the Borrower, threatened.
Section 6.09. Ownership of Property; Liens. The Borrower and its Restricted
Subsidiaries have good record and marketable title in fee simple to, or valid leasehold interests
in, all real property necessary or used in the ordinary conduct of its business, except for such
defects in title as could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect. The property of the Borrower and its Restricted Subsidiaries is not
subject to Liens, other than Permitted Liens.
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Section 6.10. Environmental Matters. Except with respect to any matters that, either
individually or in the aggregate, could not reasonably be expected to result in a Material Adverse
Effect:
(a) Each Credit Party, and their respective operations and properties, are in
compliance with Environmental Laws, which includes obtaining and maintaining all permits,
licenses and other approvals as required under any Environmental Law to carry on the business
of the Credit Parties;
(b) neither the Borrower nor any of its Restricted Subsidiaries have received
or are subject to any claim under Environmental Laws;
(c) there has been no Release of Hazardous Materials on, at, under or from
any real property or facilities owned, operated or leased by any of the Credit Parties, or, to the
knowledge of the Borrower, real property formerly owned, operated or leased by any Credit
Party that, in any case, could reasonably be expected to require the Borrower to perform any
investigation, remedial activity or corrective action or cleanup under Environmental Laws or
could otherwise reasonably be expected to result in the Borrower incurring Environmental
Liability.
The Borrower and its Restricted Subsidiaries periodically conduct in the ordinary course
of business a review of the effect of existing Environmental Laws and claims alleging potential
liability or responsibility for violation of any Environmental Law and Environmental Liabilities
on their respective businesses, operations and properties, and such Environmental Laws, claims
and Environmental Liabilities would not, individually or in the aggregate, reasonably be
expected to result in a Material Adverse Effect.
Section 6.11. [Reserved].
Section 6.12. Taxes. The Borrower and its Restricted Subsidiaries have filed all U.S.
federal income and other material tax returns and reports required to be filed, and have paid all
taxes, assessments, fees and other governmental charges levied or imposed upon them or their
properties, income or assets otherwise due and payable, except those that are being contested in
good faith by appropriate proceedings and for which adequate reserves have been provided in
accordance with GAAP or that could not, individually or in the aggregate, reasonably be
expected to result in a Material Adverse Effect.
Section 6.13. ERISA Compliance.
(a) Except as could not reasonably be expected to result in a Material Adverse
Effect, each Plan is in compliance in all material respects with the applicable provisions of
ERISA, the Internal Revenue Code and other federal or state Laws and each Credit Party and
each ERISA Affiliate is in compliance with ERISA, the Internal Revenue Code and other
applicable United States federal or United States state Laws with respect to each Multiemployer
Plan. Except as could not reasonably be expected to result in a Material Adverse Effect, each
Plan that is intended to qualify under Section 401(a) of the Internal Revenue Code is covered by
a favorable determination letter from the IRS (or an application for such a letter is currently
pending before the IRS with respect thereto) or is maintained under a prototype document that
has received a favorable opinion letter from the IRS and, to the best knowledge of the Credit
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Parties, nothing has occurred that would prevent, or cause the loss of, such qualification. Except
as could not reasonably be expected to result in a Material Adverse Effect, each Credit Party and
each ERISA Affiliate have made all required contributions that are due and owing to each Plan
subject to Section 412 of the Internal Revenue Code or Section 303 of ERISA and to each
Multiemployer Plan under Section 412 of the Internal Revenue Code or Section 304 of ERISA,
and no application for a waiver of the minimum funding standard pursuant to Section 412 of the
Internal Revenue Code or Section 302 of ERISA has been made with respect to any Plan.
(b) There are no pending or, to the best knowledge of the Credit Parties,
threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to
any Plan that would reasonably be expected to have a Material Adverse Effect. There has been
no prohibited transaction or violation of the fiduciary responsibility rules with respect to any
Plan that would reasonably be expected to result in a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected to occur that
could reasonably be expected to result in a Material Adverse Effect; (ii) no Pension Plan has any
Unfunded Pension Liability in an aggregate amount which could reasonably be expected to result
in a Material Adverse Effect; (iii) neither any Credit Party nor any ERISA Affiliate has incurred,
or reasonably expects to incur, any liability in an aggregate amount which could reasonably be
expected to result in a Material Adverse Effect (and no event has occurred that, with the giving
of notice under Section 4219 of ERISA, would result in such liability) under Sections 4201 of
ERISA with respect to a Multiemployer Plan; and (iv) neither any Credit Party nor any ERISA
Affiliate has engaged in a transaction involving any Pension Plan or Multiemployer Plan that
would reasonably be expected to be subject to Sections 4069 or 4212(c) of ERISA.
Section 6.14. Subsidiaries. As of the Closing Date (after giving effect to the
Transactions), no Credit Party has any Subsidiaries other than those specifically disclosed in
Schedule 6.14. The outstanding Capital Stock of each Subsidiary that has been or is required to
be pledged to the Collateral Agent pursuant to the Collateral and Guarantee Requirement has
been validly issued, is owned free of Liens other than Permitted Liens, and with respect to any
outstanding shares of such Capital Stock of a corporation, such shares have been validly issued
and are fully paid and non-assessable. As of the Closing Date, the outstanding shares of Capital
Stock of each Subsidiary that have been or are required to be pledged to the Collateral Agent
pursuant to the Collateral and Guarantee Requirement are not subject to any buy-sell, voting trust
or other shareholder agreement except as identified on Schedule 6.14.
Section 6.15. Margin Regulations; Investment Company Act.
(a) The Credit Parties are not engaged and will not 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.
(b) Neither the Borrower nor any Credit Party is or is required to be registered
as an “investment company” under the Investment Company Act of 1940.
Section 6.16. Disclosure. No report, financial statement, certificate or other written
information furnished by or on behalf of any Credit Party (other than projected financial
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information and information of a general economic or industry nature) to the Administrative
Agent or any Lender in connection with the transactions contemplated hereby and the
negotiation of this Credit Agreement or delivered hereunder or under any other Credit Document
considered as a whole contain any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, not materially misleading in light of the
circumstances under which they were made (after giving effect to all supplements and updates
thereto); provided that, with respect to projected financial information, the Credit Parties
represent only that such information was prepared in good faith based upon assumptions
believed to be reasonable at the time furnished; it being understood that such projections may
vary from actual results and that such variances may be material.
Section 6.17. Compliance with Laws. The Borrower and its Restricted Subsidiaries are
in compliance with the requirements of all Laws and all orders, writs, injunctions, settlements or
other agreements with any Governmental Authority and decrees having the force of law
applicable to them or to their properties, except in such instances in which (i) such requirement
of Law or order, writ, injunction or decree is being contested in good faith by appropriate
proceedings diligently conducted or (ii) the failure to comply therewith, either individually or in
the aggregate, would not reasonably be expected to have a Material Adverse Effect.
Section 6.18. Collateral Documents. Each Collateral Document is effective to create in
favor of the Collateral Agent, for the benefit of the holders of the Obligations, a legal, valid and
enforceable security interest in the Collateral identified therein, except to the extent that the
enforceability thereof may be limited by applicable Debtor Relief Laws affecting creditors’
rights generally and by equitable principles of law (regardless of whether enforcement is sought
in equity or at law) and, together with such filings and other actions required to be taken hereby
or by the applicable Collateral Documents, the Collateral Documents shall create a fully
perfected first priority Lien on, and security interest in, all right, title and interest of the grantors
thereunder in such Collateral (to the extent that such Liens may be perfected by the filing of a
financing statement or other appropriate action), in each case subject to no other Lien (other than
Permitted Liens).
Notwithstanding anything herein (including this Section 6.18) or in any other Credit
Document to the contrary, neither the Borrower nor any other Credit Party makes any
representation or warranty as to (A) the effects of perfection or non-perfection, the priority or the
enforceability of any pledge of or security interest in any Capital Stock of any Foreign
Subsidiary, or as to the rights and remedies of the Collateral Agent or any Lender with respect
thereto, under foreign Law, (B) the pledge or creation of any security interest, or the effects of
perfection or non-perfection, the priority or the enforceability of any pledge of or security
interest to the extent such pledge, security interest, perfection or priority is not required pursuant
to the Collateral and Guarantee Requirement or (C) on the Closing Date and until required
pursuant to Section 7.12 or 5.01(d), the pledge or creation of any security interest, or the effects
of perfection or non-perfection, the priority or enforceability of any pledge or security interest to
the extent not required on the Closing Date pursuant to Section 5.01(d).
Section 6.19. Intellectual Property. The Borrower and its Restricted Subsidiaries own,
license or possess the right to use all of the trademarks, service marks, trade names, domain
names, copyrights, patents, patent rights, licenses, technology, software, know-how database
rights, design rights and other intellectual property rights (collectively, “IP Rights”) that are
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reasonably necessary for the operation of their respective businesses as currently conducted, and
such IP Rights do not conflict with the rights of any Person, except to the extent the absence of
such IP Rights and such conflicts, either individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect. The operation of the respective businesses of the
Borrower and its Restricted Subsidiaries as currently conducted does not infringe upon any rights
held by any Person except for such infringements, individually or in the aggregate, which would
not reasonably be expected to have a Material Adverse Effect. No claim or litigation regarding
any of the IP Rights is pending or, to the knowledge of the Borrower, threatened in writing
against any Credit Party or any of the Restricted Subsidiaries, which, either individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.
Section 6.20. Solvency. On the Amendment No. 1 Effective Date, after giving effect to
the transactions contemplated to occur on the Amendment No. 1 Effective Date, the Borrower
and its Restricted Subsidiaries are, on a consolidated basis, Solvent.
Section 6.21. Patriot Act; Sanctioned Persons.
(a) To the extent applicable, each Credit Party is in compliance, in all material
respects, with (i) the United States Trading with the Enemy Act, as amended, and each of the
foreign assets control regulations of the United States Treasury Department (31 C.F.R., Subtitle
B, Chapter V, as amended) and any other enabling legislation or executive order relating thereto,
(ii) the Act and (iii) the United States Foreign Corrupt Practices Act of 1977, as amended (the
“FCPA”), the UK Bribery Act or other applicable anti-corruption laws. No part of the proceeds
of the Loans will be used, directly or, to the Borrower’s knowledge, indirectly, for any payments
to any official or employee of a Governmental Authority, political party or official, or candidate
for political office in order to obtain, retain or direct business or obtain any improper advantage,
in each such case in violation of the FCPA, the UK Bribery Act or other applicable anti-
corruption laws.
(b) Neither the Borrower, nor any of its Subsidiaries, nor, to the knowledge of
the Borrower, any director, officer, employee, agent or controlled affiliate of the Borrower is an
individual or entity (for purposes of this Section 6.21(b), a “Person”) that is, or is owned or
controlled by Persons that are the subject of any sanctions (i) administered or enforced by the
United States, including the U.S. Department of the Treasury’s Office of Foreign Assets Control,
the United Nations Security Council, the European Union or Her Majesty’s Treasury or other
applicable sanctions authority, (ii) pursuant to the U.S. Iran Sanctions Act, as amended, or
Executive Order 13590 (collectively, “Sanctions”) or (iii) located, organized or resident in a
country or territory that is, or whose government is, the subject of a comprehensive trade
Sanctions program or embargo. The Borrower will not, directly or, to its knowledge, indirectly,
use the proceeds of the Loans, or lend, contribute or otherwise make available such proceeds to
any Person (x) to fund any activities or business of or with any Person, or in any country or
territory, that, at the time of such funding, is, or whose government is, the subject of Sanctions,
in each such case as would violate Sanctions, or (y) in any other manner that would result in a
violation of Sanctions by any Person (including any Person participating in the Loan, whether as
a lender, underwriter, advisor, investor or otherwise).
Section 6.22. EEA Financial Institutions. No Credit Party is an EEA Financial
Institution.
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ARTICLE 7
AFFIRMATIVE COVENANTS
From and after the Closing Date, until the Loan Obligations (other than (i) contingent
indemnification obligations as to which no claim has been asserted, (ii) Obligations described in
clauses (b) and (c) of the definition thereof and (iii) any Letter of Credit that has been Cash
Collateralized or back-stopped by a letter of credit reasonably satisfactory to the L/C Issuer or
such Letter of Credit has been deemed reissued under another agreement reasonably acceptable
to the L/C Issuer) shall have been paid in full or otherwise satisfied, and the Commitments
hereunder shall have expired or been terminated, the Borrower and its Restricted Subsidiaries
will:
Section 7.01. Financial Statements. Deliver to the Administrative Agent (and the
Administrative Agent will deliver to each Lender):
(a) within ninety (90) days after the end of each fiscal year of the Borrower, a
consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal year,
and the related consolidated statements of comprehensive income, 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, including a
customary management’s discussion and analysis narrative, audited and accompanied by a report
and opinion of KPMG LLP or any other independent registered public accounting firm of
nationally recognized standing, which report and opinion (i) shall be prepared in accordance with
generally accepted auditing standards and (ii) shall not be subject to any “going concern” or like
qualification or exception or any qualification or exception as to the scope of such audit (except
as may be required as a result of (x) a prospective Event of Default with respect to the Financial
Covenants or (y) the impending maturity of any Facility, any Incremental Equivalent Debt or any
Refinancing Equivalent Debt);
(b) within forty-five (45) days after the end of each of the first three (3) fiscal
quarters of each fiscal year of the Borrower, a consolidated balance sheet of the Borrower and its
Subsidiaries as at the end of such fiscal quarter and the related (i) consolidated statements of
comprehensive income for such fiscal quarter and for the portion of the fiscal year then ended,
(ii) consolidated statements of cash flows for the portion of the fiscal year then ended, setting
forth in each case in comparative form the figures for the corresponding portion of the previous
fiscal year and (iii) a customary management’s discussion and analysis narrative, all in
reasonable detail and certified by a Responsible Officer of the Borrower as fairly presenting in
all material respects the financial condition, results of operations and cash flows of the Borrower
and its Subsidiaries in accordance with GAAP, subject only to normal year-end audit
adjustments; and
(c) 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 unaudited consolidating
financial statements reflecting the adjustments necessary to eliminate the accounts of
Unrestricted Subsidiaries (if any) (which may be in footnote form only) from such consolidated
financial statements.
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Notwithstanding the foregoing, the obligations in paragraphs (a) and (b) of this
Section 7.01 may be satisfied with respect to financial information of the Borrower and the
Restricted Subsidiaries by furnishing (A) the applicable financial statements of the Borrower or
(B) the Borrower’s Form 10-K or 10-Q, as applicable, filed with the SEC; provided that, with
respect to clauses (A) and (B), to the extent such information is in lieu of information required to
be provided under Section 7.01(a), such materials are, to the extent applicable, accompanied by a
report and opinion of KPMG LLP or any other independent registered public accounting firm of
nationally recognized standing, which report and opinion shall be prepared in accordance with
generally accepted auditing standards and shall not be subject to any “going concern” or like
qualification or exception or any qualification or exception as to the scope of such audit (except
as may be required as a result of (x) a prospective Event of Default with respect to the Financial
Covenants or (y) the impending maturity of any Facility, any Incremental Equivalent Debt or any
Refinancing Equivalent Debt).
Section 7.02. Certificates; Other Information. Deliver to the Administrative Agent (and
the Administrative Agent will deliver to each Lender), in form and detail reasonable satisfactory
to the Administrative Agent:
(a) concurrently with the delivery of the financial statements referred to in
Sections 7.01(a) and (b) and (b) (beginning with the first full fiscal quarter ending after the
Closing Date), a duly completed Compliance Certificate signed by a Responsible Officer of the
Borrower;
(b) concurrently with the delivery of the financial statements referred to in
Sections 7.01(a) and (b), a reasonably detailed consolidated budget for the then-current fiscal
year on a quarterly basis (including a projected consolidated balance sheet of the Borrower and
its Subsidiaries as of the end of such fiscal year and the related consolidated statements of
projected cash flow and projected income for such fiscal year and a summary of the material
underlying assumptions applicable thereto) (collectively, the “Projections”), which Projections
shall in each case be accompanied by a certificate of a Responsible Officer stating that such
Projections have been prepared in good faith on the basis of the assumptions stated therein,
which assumptions were believed to be reasonable at the time of furnished, it being understood
that actual results may vary from such Projections and that such variations may be material;
(c) promptly after the same are available, copies of each annual report, proxy
or financial statement or other report or communication sent to the stockholders of the Borrower,
and copies of all annual, regular, periodic and special reports and registration statements that the
Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Exchange
Act, and not otherwise required to be delivered to the Administrative Agent pursuant hereto; and
(d) promptly, such additional information regarding the business, financial or
corporate affairs of any Credit Party or any Restricted Subsidiary of a Credit Party, or
compliance with the terms of the Credit Documents, as the Administrative Agent (including at
the direction of a Lender) may from time to time reasonably request.
Documents required to be delivered pursuant to Section 7.01 or Section 7.02(b) or (c) (to
the extent that any such documents are included in materials otherwise filed with the SEC) may
be delivered electronically and, if so delivered, shall be deemed to have been delivered on the
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date on which the Borrower posts such documents, or provide a link thereto on the Borrower’s
website on the Internet at the website address listed on Schedule 11.02 (as may be updated by the
Borrower from time to time); or on which such documents are posted on the Borrower’s behalf
on an Internet or intranet website, if any, to which each Lender and the Administrative Agent
have access (whether a commercial, third-party website or whether sponsored by the
Administrative Agent); provided that: (a) the Borrower shall deliver paper copies of such
documents to the Administrative Agent or any Lender that requests the Borrower to deliver such
paper copies and (b) the Borrower shall notify (which may be by facsimile or electronic mail) the
Administrative Agent of the posting of any such documents and provide to the Administrative
Agent by electronic mail electronic versions (i.e., soft copies) of such documents.
Notwithstanding anything contained herein, in every instance the Borrower shall be required to
provide paper copies of the Compliance Certificates required by Section 7.02(a) to the
Administrative Agent (which may be electronic copies delivered via electronic mail). The
Administrative Agent shall have no obligation to request the delivery or to maintain copies of the
documents referred to above, and in any event shall have no responsibility to monitor
compliance by the Borrower with any such request for delivery, and each Lender shall be solely
responsible for requesting delivery to it or maintaining its copies of such documents.
The Credit Parties hereby acknowledge that (a) the Administrative Agent and/or the
Arrangers will make available to the Lenders and the L/C Issuer materials and/or information
provided by or on behalf of the Credit Parties hereunder (collectively, “Credit Party Materials”)
by posting the Credit Party Materials on IntraLinks or another similar electronic system (the
“Platform”) and (b) certain of the Lenders (each a “Public Lender”) may have personnel who
do not wish to receive material non-public information with respect to the Borrower or its
Subsidiaries and Affiliates, or the respective securities of any of the foregoing, and who may be
engaged in investment and other market-related activities with respect to such Persons’ securities.
The Credit Parties hereby agree that so long as any of the Credit Parties is the issuer of any
outstanding debt or equity securities that are registered or issued pursuant to a private offering or
is actively contemplating issuing any such securities that (w) all Credit Party 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 Credit Party Materials “PUBLIC,” the Credit Parties shall be
deemed to have authorized the Administrative Agent, the Arrangers, the L/C Issuer and the
Lenders to treat such Credit Party Materials as not containing any material non-public
information (although such information may be sensitive and proprietary) with respect to the
Credit Parties or their securities for purposes of United States federal and state securities Laws
(provided that to the extent that such Credit Party Materials constitute Information, they shall be
treated as set forth in Section 11.07), (y) all Credit Party Materials marked “PUBLIC” are
permitted to be made available through a portion of the Platform designated as “Public Side
Information” and (z) the Administrative Agent and the Arrangers shall be entitled to treat any
Credit Party Materials that are not marked “PUBLIC” as being suitable only for posting on a
portion of the Platform not designated “Public Side Information.” Notwithstanding the
foregoing, the Credit Parties shall be under no obligation to mark any Credit Party Materials
“PUBLIC.”
Section 7.03. Notification. Promptly after a Responsible Officer of the Borrower or any
Guarantor has obtained actual knowledge thereof, notify the Administrative Agent:
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(a) of the occurrence of any Default;
(b) of the filing or commencement of, or any written threat or notice of
intention of any person to file or commence, any action, suit, litigation or proceeding (including
pursuant to any applicable Environmental Laws), whether at law or in equity by or before any
Governmental Authority against the Borrower or any of its Restricted Subsidiaries, that could in
each case reasonably be expected to result in a Material Adverse Effect; and
(c) of the occurrence of any ERISA Event which could reasonably be
expected to result in a Material Adverse Effect.
Each notice pursuant to this Section shall be accompanied by a statement of a
Responsible Officer of the Borrower setting forth details of the occurrence referred to therein and
stating what action the Borrower has taken and proposes to take with respect thereto. Each
notice pursuant to Section 7.03(a) shall describe with particularity any and all provisions of this
Credit Agreement and any other Credit Document that have been breached.
Section 7.04. Payment of Taxes. Pay and discharge, as the same shall become due and
payable (beyond any period of grace or cure, if applicable), all its obligations and liabilities, in
respect of Taxes imposed upon it or upon its income or profits or in respect of its property,
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
Borrower and its Restricted Subsidiaries or the failure to pay or discharge the same would not
reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
Section 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 (i) in connection
with a transaction permitted by Section 8.04 or 8.05 or (ii) with respect to any Restricted
Subsidiary, to the extent that the failure to do so could not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect;
(b) take all commercially reasonable action to maintain all rights, privileges,
permits, licenses and franchises necessary or desirable in the normal conduct of its business,
except to the extent that failure to do so would not reasonably be expected to have a Material
Adverse Effect; and
(c) preserve or renew all of its patents, registered copyrights, registered
trademarks, trade names and service marks, the non-preservation or non-renewal of which could
reasonably be expected to have a Material Adverse Effect.
Section 7.06. Maintenance of Properties. Maintain, preserve and protect all of its
material Property necessary in the operation of its business in good working order and condition,
ordinary wear and tear excepted and casualty and condemnation excepted and make all necessary
repairs and replacements thereof or thereto in accordance with customary industry practice,
except where the failure to do so could not reasonably be expected to have a Material Adverse
Effect.
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Section 7.07. Maintenance of Insurance. Maintain in full force and effect with
financially sound and reputable insurance companies (in the good faith judgment of the
Borrower) that are not Affiliates of the Borrower, flood, casualty and liability insurance with
respect to its material properties (that are necessary for the operation of their respective
businesses) 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 the
Borrower and its Restricted Subsidiaries may self-insure to the extent customary among
companies engaged in similar businesses or advisable in the good faith judgment of the
Borrower) and identifying the Administrative Agent as mortgagee and loss payee as its interests
may appear, with respect to flood hazard and casualty insurance, and as additional insured, with
respect to liability insurance and providing for prior notice to the Administrative Agent of the
termination, lapse or cancellation of any such insurance.
Section 7.08. Compliance with Laws; Environmental Laws.
(a) Comply in all 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 (i) such requirement of Law or order, writ, injunction or decree is being
contested in good faith by appropriate proceedings diligently conducted; or (ii) the failure to
comply therewith would not reasonably be expected to have a Material Adverse Effect.
(b) Except, in each case, to the extent that the failure to do so could not
reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect,
comply, and take all reasonable actions to cause all lessees and other Persons operating or
occupying its properties to comply with all Environmental Laws; obtain and renew all
Environmental Permits necessary for its operations and properties; and, in each case to the extent
the Credit Parties are required by applicable Environmental Laws, conduct any investigation,
remedial or other corrective action necessary to address Hazardous Materials at any property or
facility in accordance with applicable Environmental Laws.
Section 7.09. Books and Records. Maintain proper books of record and account, in
which true and correct entries in conformity with GAAP shall be made of all financial
transactions and matters involving the assets and business of the Borrower or such Restricted
Subsidiary, as the case may be (it being understood and agreed that certain Foreign Subsidiaries
maintain individual books and records in conformity with generally accepted accounting
principles in their respective countries of organization and that such maintenance shall not
constitute a breach of the representations, warranties or covenants hereunder), and such books of
record and account in material conformity with all applicable requirements of any Governmental
Authority having regulatory jurisdiction over the Borrower or such Restricted Subsidiary.
Section 7.10. Inspection Rights. Permit representatives and independent contractors of
the Administrative Agent to visit and inspect any of its properties, to examine its corporate,
financial and operating records, and make copies thereof or abstracts therefrom, and to discuss its
affairs, finances and accounts with its directors, officers, and independent public accountants
(subject to such accountants’ customary policies and procedures), all at the reasonable expense
of the Borrower and at such reasonable times during normal business hours once each fiscal year,
upon reasonable advance notice to the Borrower; provided, however, that when an Event of
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Default has occurred and is continuing, the Administrative Agent (or any of its respective
representatives or independent contractors) may do any of the foregoing at the expense of the
Borrower at any time during normal business hours upon reasonable advance notice; provided,
further, that, excluding any such visits and inspections during the continuance of an Event of
Default, the Borrower will be responsible for the costs and expenses of the Administrative Agent
only for one such visit and inspection in any fiscal year of the Borrower. The Administrative
Agent shall give the Borrower the opportunity to participate in any discussions with the
Borrower’s independent public accountants. Notwithstanding anything to the contrary in this
Section 7.10, none of the Borrower or any of the Restricted Subsidiaries will be required to
disclose, permit the inspection, examination or making copies or abstracts of, or discussion of,
any document, information or other matter that (a) constitutes non-financial trade secrets or non-
financial proprietary information, (b) in respect of which disclosure to the Administrative Agent
or any Lender (or their respective representatives or contractors) is prohibited by Law or any
binding agreement or (c) is subject to attorney-client or similar privilege or constitutes attorney
work product; provided that, in each case, the Borrower shall provide notice to the
Administrative Agent that such information is being withheld and (other than with respect to
clause (c) above) the Borrower shall use its commercially reasonable efforts to obtain the
relevant consents and to communicate, to the extent both feasible and permitted under applicable
Law or confidentiality obligation, the applicable information.
Section 7.11. Use of Proceeds. Use the proceeds from any Credit Extension to finance
working capital, capital expenditures and other general corporate purposes, including
Acquisitions and Restricted Payments otherwise permitted hereunder.
Section 7.12. Joinder of Subsidiaries as Guarantors. At the Borrower’s expense,
subject to the limitations and exceptions of this Credit Agreement, including the provisions of
the Collateral and Guarantee Requirement and any applicable limitation in any Collateral
Document, take all action necessary or reasonably requested by the Administrative Agent to
ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) Upon the formation or acquisition of any new direct or indirect wholly
owned Material Domestic Subsidiary (in each case, other than an Excluded Subsidiary) by any
Credit Party or the designation in accordance with Section 7.14 of any existing direct or indirect
wholly owned Material Domestic Subsidiary as a Restricted Subsidiary (in each case, other than
an Excluded Subsidiary) or any Subsidiary becoming a wholly owned Material Domestic
Subsidiary (in each case, other than an Excluded Subsidiary):
(i) within 30 days after such formation, acquisition or cessation, or
such longer period as the Administrative Agent may agree in its discretion:
(A) cause each such Material Domestic Subsidiary that is
required to become a Guarantor pursuant to the Collateral and Guarantee
Requirement to duly execute and deliver to the Administrative Agent a
Joinder Agreement, joinders to the Security Agreement, Intellectual
Property Security Agreements, a counterpart of the Intercompany Note
and other security agreements and documents as reasonably requested by
and in form and substance reasonably satisfactory to the Administrative
Agent (consistent with the Security Agreement, Intellectual Property
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Security Agreements and other security agreements in effect on the
Closing Date), in each case granting Liens required by the Collateral and
Guarantee Requirement, other than, in each case, with respect to any
Excluded Property;
(B) cause each such Material Domestic Subsidiary that is
required to become a Guarantor pursuant to the Collateral and Guarantee
Requirement (and the parent of each such Material Domestic Subsidiary
that is a Guarantor) to deliver any and all certificates representing Capital
Stock (to the extent certificated) and intercompany notes (to the extent
certificated) that are required to be pledged pursuant to the Collateral and
Guarantee Requirement or the Security Agreement, accompanied by
undated stock powers or other appropriate instruments of transfer executed
in blank;
(C) take and cause such Material Domestic Subsidiary that is
required to become a Guarantor pursuant to the Collateral and Guarantee
Requirement and the parent of such Material Domestic Subsidiary to take
whatever action (including the filing of UCC financing statements and
delivery of stock and membership interest certificates to the extent
certificated) as may be required pursuant to the terms of the Collateral
Documents or as may be necessary in the reasonable opinion of the
Administrative Agent to vest in the Administrative Agent (or in any
representative of the Administrative Agent designated by it) valid and
perfected Liens to the extent required by the Collateral and Guarantee
Requirement, and to otherwise comply with the requirements of the
Collateral and Guarantee Requirement;
(ii) if reasonably requested by the Administrative Agent, within forty-
five (45) days after such request (or such longer period as the Administrative
Agent may agree in its discretion), deliver to the Administrative Agent a signed
copy of an opinion, addressed to the Administrative Agent and the Lenders, of
counsel for the Credit Parties to the Administrative Agent as to such matters set
forth in this Section 7.12(a) as the Administrative Agent may reasonably request;
(iii) [reserved]; and
(iv) if reasonably requested by the Administrative Agent, within sixty
(60) days after such request (or such longer period as the Administrative Agent
may agree in its discretion), deliver to the Administrative Agent any other items
necessary from time to time to satisfy the Collateral and Guarantee Requirement
with respect to perfection and existence of security interests with respect to
property of any Guarantor acquired after the Closing Date and subject to the
Collateral and Guarantee Requirement, but not specifically covered by the
preceding clauses (i), (ii) or (iii) or subsection (b) below.
(b) [Reserved].
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Section 7.13. Further Assurances. Promptly upon reasonable request by the
Administrative Agent (i) correct any material defect or error that may be discovered in the
execution, acknowledgment, filing or recordation of any Collateral Document or other document
or instrument relating to any Collateral, 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 may reasonably request from time
to time in order to carry out more effectively the purposes of the Collateral Documents, to the
extent required pursuant to the Collateral and Guarantee Requirement.
Section 7.14. Designation of Subsidiaries. The Borrower may at any time after the
Closing Date designate any Restricted Subsidiary of the Borrower as an Unrestricted Subsidiary
or any Unrestricted Subsidiary as a Restricted Subsidiary; provided that (i) immediately before
and after such designation, no Event of Default shall have occurred and be continuing, and (ii)
the Borrower is in pro forma compliance with the Financial Covenants. The designation of any
Subsidiary as an Unrestricted Subsidiary after the Closing Date shall be deemed to constitute an
Investment by the Borrower therein at the date of designation. The designation of any
Unrestricted Subsidiary as a Restricted Subsidiary shall constitute (i) the incurrence at the time
of designation of any Investment, Indebtedness or Liens of such Subsidiary existing at such time
and (ii) a return on any Investment by the Borrower in Unrestricted Subsidiaries.
Section 7.15. Post-Closing Obligations. Complete each of the actions described on
Schedule 7.15 as soon as commercially reasonable and by no later than the date set forth in
Schedule 7.15 with respect to such action or such later date as the Administrative Agent may
agree in its sole discretion.
ARTICLE 8
NEGATIVE COVENANTS
From and after the Closing Date, until the Loan Obligations (other than (i) contingent
indemnification obligations as to which no claim has been asserted, (ii) Obligations described in
clauses (b) and (c) of the definition thereof and (iii) any Letter of Credit that has been Cash
Collateralized or back-stopped by a letter of credit reasonably satisfactory to the L/C Issuer or
such Letter of Credit has been deemed reissued under another agreement reasonably acceptable
to the L/C Issuer) shall have been paid in full or otherwise satisfied, and the Commitments
hereunder shall have expired or been terminated, the Borrower shall not, and shall not permit any
Restricted Subsidiary to:
Section 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, other than the following:
(a) Liens pursuant to any Credit Document securing the Loan Obligations,
including Cash Collateral and other Adequate Assurance pledged to the L/C Issuer and the
Swingline Lender to secure obligations of Defaulting Lenders;
(b) Liens securing Indebtedness permitted by Section 8.03(q) and (r);
(c) Liens securing obligations pursuant to a Swap Contract or Treasury
Management Agreement permitted hereunder in favor of a Person that was (or was an Affiliate
of) a Lender hereunder on the Closing Date or on the date such transaction was entered into, but
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only to the extent that (i) for any Swap Contract, the obligations under such Swap Contract are
permitted under Section 8.03(d), (ii)such Liens are on the same collateral that secures the Loan
Obligations and (iii) the obligations under such Swap Contract or Treasury Management
Agreement and the Loan Obligations share pari passu in the collateral that is subject to such
Liens;
(d) Liens existing on the Closing Date and listed on Schedule 8.01 and any
modifications, replacements, renewals, refinancings or extensions thereof; provided that (i) the
property covered thereby is not changed other than after-acquired property that is affixed or
incorporated into the property covered by such Lien and any proceeds of products of such
property, (ii) the amount secured or benefited thereby is not increased except by an amount equal
to unpaid accrued interest and premium thereon plus other amounts owing or paid related to such
Indebtedness, and fees and expenses reasonably incurred, in connection with such modification,
refinancing, refunding, renewal, replacement or extension, (iii) the direct or any contingent
obligor with respect thereto is not changed and (iv) any modification, replacement, renewal,
refinancing or extension of the obligations secured or benefited thereby is permitted by Section
8.03(b);
(e) Liens for taxes not yet due or that are being contested in good faith and by
appropriate proceedings diligently conducted, if adequate reserves with respect thereto are
maintained on the books of the applicable Person in accordance with GAAP;
(f) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s,
landlords’ or sublandlords’ or other like Liens arising in the ordinary course of business that are
not overdue for a period of more than 60 days or if more than 60 days overdue, are unfiled and
no other action has been taken to enforce such Lien or which are being contested in good faith
and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto
are maintained on the books of the applicable Person in accordance with GAAP or the equivalent
accounting principles in the relevant local jurisdiction;
(g) (i) pledges or deposits in the ordinary course of business in connection
with workers’ compensation, health, disability or employee benefits, unemployment insurance
and other social security legislation or similar legislation or regulation or other insurance-related
obligations (including in respect of deductibles, self-insured retention amounts and premiums
and adjustments thereto), other than any Lien imposed by Title IV of ERISA and (ii) pledges and
deposits in the ordinary course of business securing liability for reimbursement or
indemnification obligations of (including obligations in respect of letters of credit or bank
guarantees for the benefit of) insurance carriers providing property, casualty or liability
insurance to the Borrower or any of its Restricted Subsidiaries;
(h) deposits to secure the performance of bids, trade contracts, governmental
contracts and leases (other than Indebtedness for borrowed money), statutory obligations, surety,
stay, customs and appeal bonds, performance bonds and other obligations of a like nature
incurred in the ordinary course of business or consistent with past practice or industry practice;
(i) zoning restrictions, easements, rights-of-way, covenants, conditions,
restrictions, reservations, encroachments and other similar encumbrances affecting real property
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that, in the aggregate, are not substantial in amount, and that do not in any case materially detract
from the value of the property subject thereto or materially interfere with the ordinary conduct of
the business of the Borrower or any of its Restricted Subsidiaries, taken as a whole;
(j) Liens securing judgments for the payment of money not constituting an
Event of Default under Section 9.01(h) or securing appeal or other surety bonds related to such
judgments;
(k) Liens securing, or in respect of, obligations under Capitalized Leases and
purchase money obligations for fixed or capital assets; provided that such Liens do not at any
time encumber any property (except for replacements, additions and accessions to such property)
other than the property financed by such Indebtedness except that that individual financings of
equipment provided by one lender may be cross collateralized to other financings of equipment
provided by such lender;
(l) Liens in favor of customs and revenue authorities arising as a matter of
law to secure payment of customs duties in connection with the importation of goods in the
ordinary course of business;
(m) Liens on property or assets acquired in connection with an Acquisition
permitted under this Agreement; provided that (i) the indebtedness secured by such Liens is
permitted under Section 8.03 and (ii) the Liens (A) are not incurred in connection with, or in
contemplation or anticipation of, the acquisition, (B) are not, in the case of any Credit Party,
“blanket liens”, and (C) do not attach or extend to any other property or assets (other than the
proceeds or products thereof and other than after-acquired property subjected to such Lien in
accordance with the terms governing the Indebtedness secured by such Lien);
(n) Liens of landlords or mortgages of landlords on fixtures, equipment and
movable property located on premises leased by the Borrower or any Restricted Subsidiary
which do not interfere in any material respect with the business of the Borrower and its
Restricted Subsidiaries, taken as a whole;
(o) Liens incurred and financing statements filed or recorded in each case
with respect to property leased by the Borrower and its Restricted Subsidiaries to the owners of
such property which are operating leases; provided that such Lien does not extend to any other
property of the Borrower and its Restricted Subsidiaries;
(p) Liens (i) of a collection bank arising under Section 4-208 of the UCC on
items in the course of collection, (ii) attaching to commodity trading accounts or other
commodities brokerage accounts incurred in the ordinary course of business and (iii) in favor of
a banking or other financial institution arising as a matter of Law or under customary general
terms and conditions encumbering deposits or other funds maintained with a financial institution
(including the right of set-off) and that are within the general parameters customary in the
banking industry or arising pursuant to such banking institution’s general terms and conditions;
(q) deposits of cash or the issuance of a Letter of Credit made to secure
liability to insurance carriers under insurance or self-insurance arrangements;
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(r) Liens (i) on cash advances in favor of the seller of any property to be
acquired in an Investment permitted under Section 8.02 to be applied against the purchase price
for such Investment or other acquisition, and (ii) consisting of an agreement to Dispose of any
property in a Disposition permitted under Section 8.05, in each case, solely to the extent such
Investment or other acquisition or Disposition, as the case may be, would have been permitted on
the date of the creation of such Lien;
(s) Liens on property or assets of Restricted Subsidiaries that are not Credit
Parties securing obligations of Restricted Subsidiaries that are not Credit Parties;
(t) Liens on Collateral securing Ratio Debt (and any Permitted Refinancing
thereof); provided that such Liens shall be junior to the Liens securing the Obligations and shall
be subject to a lien subordination and intercreditor arrangement in form and substance
reasonably satisfactory to the Administrative Agent;
(u) leases, licenses, cross-licenses, subleases or sublicenses not interfering in
any material respect with the business of the Borrower and its Restricted Subsidiaries, or
otherwise materially diminishing the value of the Collateral, in either case taken as a whole;
(v) Liens arising from precautionary UCC financing statements or similar
filings in connection with any transaction otherwise not prohibited under this Agreement;
(w) additional Liens so long as the aggregate principal amount of the
obligations so secured does not exceed the greater of (i) $20,250,000 and (ii) 2.25% of Total
Assets;
(x) Liens that are contractual rights of set-off or rights of pledge (i) relating to
the establishment of depository relations with banks or other deposit-taking financial institutions
and not given in connection with the issuance of Indebtedness, (ii) relating to pooled deposit or
sweep accounts of the Borrower or any of its Restricted Subsidiaries to permit satisfaction of
overdraft or similar obligations incurred in the ordinary course of business of the Borrower or
any of its Restricted Subsidiaries or (iii) relating to purchase orders and other agreements entered
into with customers of the Borrower or any of its Restricted Subsidiaries in the ordinary course
of business;
(y) Liens solely on any cash earnest money deposits made by the Borrower or
any of its Restricted Subsidiaries in connection with any letter of intent or purchase agreement
permitted hereunder; and
(z) Liens on specific items of inventory or other goods and the proceeds
thereof of any Person securing such Person’s obligations in respect of letters of credit or banker’s
acceptances issued or created for the account of such Person to facilitate the purchase, shipment
or storage of such inventory or goods in the ordinary course of business.
The expansion of Liens by virtue of accrual of interest, accretion of accreted value,
amortization of original issue discount and increases in the amount of Indebtedness outstanding
solely as a result of fluctuations in the exchange rate of currencies will not be deemed to be an
incurrence of Liens for purposes of this Section 8.01.
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Section 8.02. Investments. Make or permit to exist any Investments, except:
(a) cash and Cash Equivalents;
(b) Investments (including intercompany Investments) existing on the Closing
Date or committed to be made pursuant to an agreement existing on the Closing Date, in each
case listed on Schedule 8.02, or an Investment consisting of any extension, modification,
replacement, renewal or reinvestment of any such Investment or binding commitment existing on
the Closing Date; provided that the amount of any such Investment or binding commitment may
be increased (i) as required by the terms of such Investment or binding commitment as in
existence on the Closing Date (including as a result of the accrual or accretion of interest or
original issue discount or the issuance of pay-in-kind securities) or (ii) as otherwise permitted
under this Credit Agreement;
(c) to the extent not prohibited by applicable Law, (i) advances to officers,
directors, employees, managers, consultants and independent contractors of the Borrower and its
Restricted Subsidiaries for travel, entertainment, relocation and other ordinary business purposes,
(ii) loans and advances to officers, directors, employees, managers, consultants and independent
contractors of the Borrower or any of its Restricted Subsidiaries to finance the purchase of
Capital Stock of the Borrower and (iii) loans and advances to, or guarantees of Indebtedness of,
officers, directors, employees, managers, consultants and independent contractors; provided that
that the aggregate amount outstanding at any time under clauses (ii) and (iii) shall not exceed the
greater of (x) $6,750,000 and (y) 0.75% of Total Assets;
(d) (i) Investments consisting of extensions of credit in the nature of accounts
receivable or notes receivable arising from the grant of trade credit in the ordinary course of
business, (ii) Investments received in satisfaction or partial satisfaction thereof from financially
troubled account debtors and (iii) Investments received in satisfaction of judgments against other
Persons;
(e) any Investments in the Borrower or any of its Restricted Subsidiaries;
provided that the aggregate amount of Investments by Credit Parties in Restricted Subsidiaries
that are not Credit Parties (other than any Investment, the proceeds of which are used directly or
indirectly in connection with an Acquisition by such non-Credit Parties) shall not exceed,
together with the aggregate amount of cash or property provided by Credit Parties pursuant to
Section 8.02(f)(A)(2), at the time of the making of any such Investment, an aggregate amount
outstanding at any time equal to the greater of (i) $20,250,000 and (ii) 2.25% of Total Assets;
(f) any Acquisition by the Borrower or any of its Restricted Subsidiaries and
any Investment that is part of the assets acquired in such Acquisition or otherwise held by a
Person that is, directly or indirectly, a target of such Acquisition; provided that, with respect to
each such Acquisition made pursuant to this Section 8.02(f):
(A) (1) each applicable Credit Party and any such newly
created or acquired Subsidiary shall, or will within the times specified
therein, have complied with the applicable requirements of Section 7.12 to
the extent required thereby, and (2) the aggregate amount of cash or
property provided by Credit Parties to make any such purchase or
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acquisition of assets that are not purchased or acquired (or do not become
owned) by a Credit Party or in Capital Stock in Persons that do not
become Credit Parties upon consummation of such purchase or acquisition
shall not exceed at any time outstanding, together with Investments
pursuant to Section 8.02(e), the greater of (i) $20,250,000 and (ii) 2.25%
of Total Assets; provided, however, that the limitation related to assets that
are not acquired by a Credit Party or Persons that do not become Credit
Parties under this clause (A)(2) shall not apply to any acquisition to the
extent the ultimate Person so acquired (or the Person owning the assets so
acquired) becomes a Credit Party even though such Credit Party owns
Capital Stock in Persons that are not otherwise required to become Credit
Parties, if, for such acquisition, not less than 90.0% of the Consolidated
EBITDA of the Person(s) acquired (for this purpose and for the
component definitions used therein, determined on a consolidated basis for
such Persons and their Subsidiaries) is directly generated by Person(s) that
become Credit Parties (i.e., disregarding all such Consolidated EBITDA
generated by Subsidiaries of such Guarantors that are shall not become
Credit Parties); provided, further, that for the avoidance of doubt, such
limitations on cash or property provided by Credit Parties shall exclude
consideration provided in the form of Capital Stock of the Borrower;
(B) immediately after giving Pro Forma Effect to any such
purchase or other acquisition, (1) no Event of Default (or if such Permitted
Acquisition is not conditioned on the availability of, or on obtaining third
party financing any Event of Default under Section 9.01(a) or (f)) shall
have occurred and be continuing and (2) the Consolidated Total Net
Leverage Ratio is not greater than the Consolidated Total Net Leverage
Ratio permitted under Section 8.11(b) as of the most recently ended Test
Period for which financial statements have been delivered pursuant to
Section 7.01 less 0.25x; and
(C) the Borrower shall have delivered to the Administrative
Agent, no later than five (5) Business Days (or such later date as
acceptable to the Administrative Agent in its sole discretion) after the date
on which any such purchase or other acquisition is consummated, a
certificate of a Responsible Officer certifying that all of the requirements
set forth in this clause (f) have been satisfied or will be satisfied on or
prior to the consummation of such purchase or other acquisition;
(g) Investments to the extent that payment for such investments is made with
the Capital Stock of the Borrower;
(h) Investments in respect of Swap Contracts permitted under Section 8.03(d);
(i) Investments consisting of purchases and acquisitions of assets or services
in the ordinary course of business;
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(j) Investments in prepaid expenses, negotiable instruments held for
collection and lease, utility and workers compensation, performance and similar deposits entered
into as a result of the operations of the business;
(k) Investments in the ordinary course of business consisting of Uniform
Commercial Code Article 3 endorsements for collection or deposit and Article 4 customary trade
arrangements with customers;
(l) Investments consisting of purchases or other acquisitions of inventory,
supplies, services, material or equipment or the licensing or contribution of intellectual property
pursuant to joint marketing arrangements with other Persons;
(m) Investments in an outstanding amount not to exceed, at the time any such
Investment is made, the sum of (x) the greater of (i) $30,375,000 and (ii) 3.50% of Total Assets
and (y) the Cumulative Equity Credit so long as, in each case, no Event of Default shall exist or
result immediately after giving effect thereto;
(n) Investments to the extent that, at the time any such Investments are made,
the Payment Conditions are satisfied; and
(o) Investments by the Borrower and its Subsidiaries in any Escrow Borrower
for purposes of funding original issue discount, upfront fees, redemption or repayment premium
and interest with respect to any Escrow Incremental Term Loans or debt securities issued
pursuant to escrow arrangements, in each case, to the extent such Escrow Incremental Term
Loans and debt securities are intended to provide a portion of the funds to finance an Acquisition
permitted under this Agreement.
For purposes of determining whether an Investment is a permitted to be made pursuant to
this Section 8.02, in the event that an Investment (or any portion thereof) meets the criteria of
more than one of any provision of Section 8.02, the Borrower, in its sole discretion, will classify
such Investment (or any portion thereof) in any one or more of the types of Investments
described in any applicable clause in Section 8.02 and will only be required to include the
amount and type of such Investment in such of the above clauses in this Section 8.02 as
determined by the Borrower at such time.
Section 8.03. Indebtedness. Create, incur, assume or suffer to exist any Indebtedness,
except:
(a) Indebtedness under the Credit Documents;
(b) Indebtedness outstanding on the Closing Date and listed on Schedule 8.03
and any Permitted Refinancing thereof;
(c) [reserved];
(d) obligations (contingent or otherwise) of the Borrower or any Restricted
Subsidiary existing or arising under any Swap Contract; provided that such obligations are
entered into by such Person in the ordinary course of business for the purpose of directly
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mitigating risks associated with liabilities, commitments, investments, assets, or property held or
reasonably anticipated by such Person, or changes in the value of securities issued by such
Person, and not for purposes of speculation or taking a “market view”;
(e) Indebtedness of the Borrower and its Restricted Subsidiaries owing to the
Borrower or any Restricted Subsidiary to the extent permitted by Section 8.02; provided that any
such Indebtedness owed by a Credit Party to a Restricted Subsidiary that is not a Credit Party
shall be subject to the Intercompany Note;
(f) Indebtedness (including Indebtedness under Capitalized Leases and
purchase money obligations) incurred to provide all or a portion of the purchase price (or cost of
construction, acquisition, repair, lease or improvement), in each case, for capital assets and
refinancings, refundings, renewals or extensions thereof, provided that the aggregate principal
amount of all such Indebtedness shall not at any time outstanding exceed the greater of (i)
$20,250,000 and (ii) 2.25% of Total Assets;
(g) unsecured Indebtedness or Indebtedness secured by a Lien, that, in the
case of a Lien on the assets of a Credit Party, such Lien on the Collateral is junior to the Lien
securing the Obligations, so long as, after giving effect to the incurrence of such Indebtedness
(whether or not secured), the Consolidated Total Net Leverage Ratio is not greater than the
Consolidated Total Net Leverage Ratio permitted under Section 8.11(b) as of the most recently
ended Test Period for which financial statements have been delivered pursuant to Section 7.01
less 0.50x (“Ratio Debt”); provided that (i) such Ratio Debt does not mature prior to the date
that is 91 days following the Latest Maturity Date of the Revolving Credit Facility or have a
Weighted Average Life to Maturity less than any then existing Class of Term Loans, (ii) such
Ratio Debt does not have mandatory prepayment, redemption or offer to purchase events that are
earlier than the Revolving Termination Date (but may include customary amortization, change of
control and asset sale proceeds offers), (i) such Ratio Debt either (a) does not have financial
maintenance covenants or (b) contains financial maintenance covenants that are no more
restrictive than the Financial Covenants, (iv) to the extent such Ratio Debt is subordinated to the
Facilities, is subject to subordination terms reasonably satisfactory to the Administrative Agent
and (v) to the extent such Ratio Debt is secured by a Lien which is junior to the Lien securing the
Obligations, it is subject to a lien subordination and intercreditor arrangement reasonably
satisfactory to the Borrower and the Administrative Agent; provided, further, that any such
Indebtedness incurred by a Restricted Subsidiary that is not a Credit Party, together with
Indebtedness incurred by a Restricted Subsidiary that is not a Credit Party pursuant to
Section 8.03(h), does not exceed in the aggregate at any time outstanding the greater of (a)
$27,000,000 and (b) 3.00% of Total Assets;
(h) Indebtedness of the Borrower or any Restricted Subsidiary assumed
(including Acquired Indebtedness) in connection with, but not incurred in contemplation of, any
Acquisition so long as, after giving Pro Forma Effect thereto and any related transactions, the
Borrower could incur $1.00 of Ratio Debt; provided that any such Indebtedness incurred by a
Restricted Subsidiary that is not a Credit Party does not exceed, together with Indebtedness
incurred by a Restricted Subsidiary that is not a Credit Party pursuant to Section 8.03(g), in the
aggregate at any time outstanding the greater of (i) $27,000,000 and (ii) 3.00% of Total Assets;
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(i) Support Obligations by the Borrower and its Restricted Subsidiaries in
respect of Indebtedness otherwise permitted hereunder; provided that Support Obligations by the
Credit Parties with respect to Indebtedness of Restricted Subsidiaries that are not Credit Parties is
an Investment permitted by Section 8.02;
(j) Indebtedness (i) representing deferred compensation to employees of the
Borrower or any of its Restricted Subsidiaries incurred in the ordinary course of business
(including, for the avoidance of doubt, in connection with the Transactions or any Acquisition
permitted hereunder), or (ii) to current or former officers, managers, consultants, directors and
employees, and their respective estates, spouses or former spouses to finance the purchase or
redemption of Capital Stock or other equity-based awards of the Borrower permitted by
Section 8.06;
(k) Indebtedness of Restricted Subsidiaries that are not Credit Parties in an
aggregate principal amount at any time outstanding not to exceed the greater of (i) $20,250,000
and (ii) 2.25% of Total Assets;
(l) Treasury Management Obligations and other Indebtedness in respect of
netting services, automatic clearinghouse arrangements, overdraft protections, employee credit
card programs and other cash management and similar arrangements in the ordinary course of
business and any Guaranties thereof;
(m) Indebtedness consisting of (i) the financing of insurance premiums or (ii)
take-or-pay obligations contained in supply arrangements, in each case, incurred in the ordinary
course of business;
(n) obligations in respect of performance, bid, appeal and surety bonds and
performance and completion guarantees and similar obligations provided by the Borrower or any
of its Restricted Subsidiaries or obligations in respect of letters of credit, bank guarantees or
similar instruments related thereto, in each case in the ordinary course of business or consistent
with past practice;
(o) (A) Indebtedness of the Borrower or any Restricted Subsidiary in an
aggregate principal amount not to exceed the amount of the net cash proceeds received by the
Borrower since the Closing Date from the issuance or sale of Capital Stock of the Borrower or
cash contributed to the capital of the Borrower (in each case, other than proceeds of Disqualified
Stock or sales of Capital Stock to the Borrower or any of its Subsidiaries) as determined in
accordance with clauses (a) and (b) of the definition of “Cumulative Equity Credit” to the extent
such net cash proceeds have not been applied pursuant to such clauses to make Investments
pursuant to Section 8.02, Restricted Payments pursuant to Section 8.06 or to prepay, redeem,
purchase, defease or satisfy Indebtedness pursuant to Section 8.12, so long as (i) such
Indebtedness is incurred within one year following the receipt by the Borrower of such net cash
proceeds, and (ii) such Indebtedness is designated as “Contribution Indebtedness” on the date
incurred and (B) any Permitted Refinancing thereof;
(p) Indebtedness pursuant to any Plan or owed to any Person providing health,
retirement, disability or other employee benefits;
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(q) (A) Indebtedness in respect of one or more series of senior or subordinated
notes or loans (which may be unsecured or secured on a junior lien basis to the Obligations), and,
in the case of notes, issued in a public offering, Rule 144A or other private placement or bridge
in lieu of the foregoing, in each case, that are issued or made in lieu of Incremental Revolving
Commitments and/or Incremental Term Commitments (the “Incremental Equivalent Debt”);
provided that (i) the aggregate principal amount of such Incremental Equivalent Debt shall be
subject to the limitations set forth under Section 2.18(c)(ii) as if such Incremental Equivalent
Debt constituted Incremental Term Loans incurred in compliance therewith; (ii) such
Incremental Equivalent Debt shall not be subject to any Guaranty by any Person other than a
Credit Party, (iii) if such Incremental Equivalent Debt is secured, the obligations in respect
thereof shall not be secured by any Lien on any asset of the Borrower or any Restricted
Subsidiary other than any asset constituting Collateral, (iv) no Default or Event of Default shall
have occurred and be continuing or would exist immediately after giving effect to such
incurrence, (v) if such Incremental Equivalent Debt is secured, the security agreements and other
collateral documents relating to such Incremental Equivalent Debt shall be substantially similar
to the Collateral Documents (with such differences as are reasonably satisfactory to the
Administrative Agent), (vi) (a) if such Incremental Equivalent Debt is secured, then such
Incremental Equivalent Debt shall be subject to a lien subordination and intercreditor
arrangement satisfactory to the Borrower and the Administrative Agent or (b) if such
Incremental Equivalent Debt is unsecured and subordinated to the Obligations, then such
Incremental Equivalent Debt shall be subject to a subordination agreement satisfactory to the
Borrower and the Administrative Agent, (vii) such Incremental Equivalent Debt shall have a
final maturity date which is no earlier than 91 days after the Revolving Termination Date, (viii)
such Incremental Equivalent Debt shall have a Weighted Average Life to Maturity no shorter
than that of any Class of then-existing Term Loans, (ix) such Incremental Equivalent Debt shall
not be subject to any mandatory redemption or prepayment provisions or rights (except
customary amortization and offers to repurchase and prepayment events upon a change of
control, asset sale or event of loss and a customary acceleration right after an event of default), in
each case prior to Revolving Termination Date, (x) such Incremental Equivalent Debt shall (a)
have financial maintenance covenants that are not more restrictive than the Financial Covenants
or (b) not have any financial maintenance covenants, and (xi) except as otherwise set forth in this
clause (g), such Incremental Equivalent Debt shall have terms and conditions (other than with
respect to pricing, fees, rate floors and optional prepayment or redemption terms) substantially
similar to, or (taken as a whole) no more favorable (as reasonably determined by the Borrower in
good faith) to the lenders or holders providing such Incremental Equivalent Debt, than those
applicable to the Revolving Credit Loans (except for covenants or other provisions applicable
only to periods after the Latest Maturity Date at the time of the issuance or incurrence of such
Incremental Equivalent Debt) and (B) any Permitted Refinancing thereof;
(r) (x) Indebtedness of the Borrower in the form of or more series of senior or
subordinated notes of loans (which may be unsecured or secured on a junior lien basis to the
Obligations), and, in the case of notes, issued in a public offering, Rule 144A or other private
placement in lieu of the foregoing and, in each case, any Permitted Refinancing thereof (the
“Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace,
repurchase, retire or refinance, in whole or in part, any Refinanced Debt; provided that any
Refinancing Equivalent Debt: (A) (1) shall not have a Maturity Date prior to the 91 days after
the Revolving Termination Date, (2) if in the form of term loans, shall not have a Weighted
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Average Life to Maturity shorter than the remaining Weighted Average Life to Maturity of the
Refinanced Debt, (3) [reserved], (4) shall not be subject to mandatory redemption, repurchase,
prepayment or sinking fund obligations (except with respect to customary amortization, offers to
repurchase and prepayment events upon a change of control, asset sale or event of loss and a
customary acceleration right after an event of default), in each case prior to the Revolving
Termination Date, (5) shall not be guaranteed by Persons other than Guarantors, (6) (A) if
secured, shall be subject to a lien subordination and intercreditor arrangement satisfactory to the
Borrower and the Administrative Agent or (B) if unsecured and subordinated to the Obligations,
shall be subject to a subordination agreement satisfactory to the Borrower and the Administrative
Agent, (7) if secured, shall be subject to security agreements relating to such Refinancing
Equivalent Debt that are substantially the same as or more favorable to the Credit Parties than the
Collateral Documents (with such differences as are reasonably satisfactory to the Administrative
Agent), (8) if secured shall be secured by the Collateral on a junior lien basis with the
Obligations under the Term Loans and Revolving Credit Loans and shall not be secured by any
property or assets of the Borrower or any Restricted Subsidiary other than the Collateral, (9)
shall not have a greater principal amount than the principal amount of the Refinanced Debt plus
accrued and unpaid interest, fees, premiums (if any) and penalties thereon and reasonable fees,
expenses, OID and upfront fees associated with the refinancing, (10) (A) shall have financial
maintenance covenants that are not more restrictive than the Financial Covenants or (B) shall not
have financial maintenance covenants, and (11) except as otherwise set forth in this clause (f)(ii),
shall have terms and conditions (other than with respect to pricing, fees, rate floors and optional
prepayment or redemption terms) substantially similar to, or (taken as a whole) no more
favorable (as determined by the Borrower in good faith) to the lenders or holders providing such
Refinancing Equivalent Debt, than those applicable to the Revolving Credit Loans (except for
covenants or other provisions applicable only to periods after the Latest Maturity Date at the
time of the issuance or incurrence of such Refinancing Equivalent Debt) and (B) shall be
incurred solely to repay, repurchase, retire or refinance substantially concurrently the Refinanced
Debt and (y) any Permitted Refinancing thereof;
(s) other Indebtedness in an aggregate principal amount at any time
outstanding not to exceed the greater of (i) $30,375,000 and (ii) 3.50% of Total Assets; and
(t) all premiums (if any), interest (including post-petition interest), fees,
expenses, charges and additional or contingent interest on obligations described in clauses (a)
through (t) above.
For purposes of determining compliance with Section 8.03, in the event that an item of
Indebtedness (or any portion thereof) at any time, whether at the time of incurrence meets the
criteria of more than one of the categories of permitted Indebtedness described in Section 8.03(a)
through (t) above, the Borrower, in its sole discretion, will classify such item of indebtedness (or
any portion thereof) in any one or more of the types of Indebtedness described in Section 8.03(a)
through (t) and will only be required to include the amount and type of such Indebtedness in such
of the above clauses as determined by the Borrower at such time. The Borrower will be entitled
to divide and classify an item of Indebtedness in more than one of the types of Indebtedness
described in Section 8.03(a) through (t). Notwithstanding the foregoing, Indebtedness incurred
(a) under the Credit Documents, any Incremental Commitments, any Incremental Loans, any
Refinancing Commitments and any Refinancing Loans shall only be classified as incurred under
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Section 8.03(a), (b) as Incremental Equivalent Debt shall only be classified as incurred under
Section 8.03(q), and (c) as Refinancing Equivalent Debt shall only be classified as incurred
under Section 8.03(r).
For purposes of determining compliance with any Dollar-denominated restriction on the
incurrence of Indebtedness, the Dollar-equivalent principal amount of Indebtedness denominated
in a foreign currency shall be calculated based on the relevant currency exchange rate in effect
on the date such Indebtedness was incurred, in the case of term debt, or first committed, in the
case of revolving credit debt; provided that if such Indebtedness is incurred to extend, replace,
refund, refinance, renew or defease other Indebtedness denominated in a foreign currency, and
such extension, replacement, refunding, refinancing, renewal or defeasance would cause the
applicable Dollar-denominated restriction to be exceeded if calculated at the relevant currency
exchange rate in effect on the date of such extension, replacement, refunding, refinancing,
renewal or defeasance, such Dollar-denominated restriction shall be deemed not to have been
exceeded so long as the principal amount of such refinancing Indebtedness does not exceed the
principal amount of such Indebtedness being extended, replaced, refunded, refinanced, renewed
or defeased, plus the aggregate amount of fees, underwriting discounts, premiums (including
tender premiums) and other costs and expenses (including OID) incurred in connection with such
refinancing.
The accrual of interest or the accretion of accreted value shall not be deemed to be an
incurrence of Indebtedness for purposes of this Section 8.03.
Section 8.04. Mergers and Dissolutions. Enter into a transaction of merger or
consolidation; provided that:
(a) the Borrower and its Restricted Subsidiaries may merge or consolidate
with any Credit Party; provided that (i) if the Borrower is a party to the merger or consolidation,
it shall be the surviving entity and (ii) if the Borrower is not a party to the merger or
consolidation, then a Credit Party thereto shall be the surviving entity;
(b) a Restricted Subsidiary of the Borrower that is not a Credit Party may
merge or consolidate with any other Subsidiary that is not a Credit Party; or
(c) the Borrower and its Restricted Subsidiaries may merge or consolidate
with Persons that are not Credit Parties; provided that (i) if the Borrower is a party to the merger
or consolidation, it shall be the surviving entity and (ii) if a Restricted Subsidiary of the
Borrower that is a Credit Party is a party to the merger or consolidation, either (I) the Restricted
Subsidiary that is a Credit Party will be the surviving entity, or (II) such transaction shall be an
Investment permitted under Section 8.02;
(d) So long as no Default has occurred and is continuing or would result
therefrom, the Borrower may merge or consolidate with any other Person; provided that (i) the
Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or
surviving any such merger or consolidation is not the Borrower (any such Person, the
“Successor Company”), (A) the Successor Company shall be an entity organized or existing
under the Laws of the United States, any state thereof, the District of Columbia or any territory
thereof, (B) the Successor Company shall expressly assume all the obligations of the Borrower
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under this Agreement and the other Credit Documents to which the Borrower is a party pursuant
to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent,
(C) each Guarantor, unless it is the other party to such merger or consolidation, shall have
confirmed that its Guaranty shall apply to the Successor Company’s obligations under the Credit
Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall
have by a supplement to the Security Agreement and other applicable Collateral Documents
confirmed that its obligations thereunder shall apply to the Successor Company’s obligations
under the Credit Documents, (E) [reserved], and (F) the Borrower shall have delivered to the
Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such
merger or consolidation and such supplement to this Agreement or any Collateral Document
comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor
Company will succeed to, and be substituted for, the Borrower under this Agreement;
(e) any Restricted Subsidiary may Dispose of all or substantially all of its
assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted
Subsidiary; provided that if the transferor in such a transaction is a Credit Party, then (i) the
transferee must be a Credit Party or (ii) to the extent constituting an Investment, such Investment
must be an Investment permitted by Section 8.02;
(f) Credit Parties (other than the Borrower) may (i) be dissolved or liquidated
into another Credit Party or (ii) otherwise have their existence terminated to the extent that the
assets of such Credit Party are distributed, upon such termination, to one or more Credit Parties
or to a Restricted Subsidiary that is not a Credit Party so long as such transaction shall be an
Investment permitted under Section 8.02;
(g) Restricted Subsidiaries that are not Credit Parties may be dissolved,
liquidated or otherwise have their existence terminated; and
(h) so long as no Event of Default has occurred and is continuing or would
result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation
or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 8.05.
Section 8.05. Dispositions. Make any Disposition, except:
(a) (i) Dispositions between and among Credit Parties, (ii) Dispositions
between and among Restricted Subsidiaries that are not Credit Parties and (iii) Dispositions
between Credit Parties, on the one hand, and Restricted Subsidiaries that are not Credit Parties,
on the other hand, provided that in the case of any disposition by a Credit Party to a Restricted
Subsidiary that is not a Credit Party, such Disposition shall be an Investment permitted by
Section 8.02;
(b) Dispositions by the Borrower or any Restricted Subsidiary; provided that
(i) at the time of such Disposition, no Event of Default shall exist or would result from such
Disposition, (ii) the aggregate book value of all property Disposed of in reliance on this clause
(b) in any fiscal year shall not exceed an amount equal to ten percent (10%) of Total Assets of
the Borrower and its Restricted Subsidiaries as of the last day of the immediately preceding
fiscal year, and (iii) with respect to any Disposition for a purchase price in excess of $5,000,000,
the consideration for any such Disposition shall be at least 75% cash or Cash Equivalents;
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provided, however, that for the purposes of this clause (iii), the following shall be deemed to be
cash: (A) any liabilities (as shown on the Borrower’s most recent balance sheet provided
hereunder or in the footnotes thereto) of the Borrower or such Restricted Subsidiary, other than
liabilities that are by their terms subordinated to the payment in cash of the Obligations, that (i)
are assumed by the transferee with respect to the applicable Disposition or (ii) are otherwise
cancelled or terminated in connection with the transaction with such transferee (other than
intercompany debt owed to the Borrower or its Restricted Subsidiaries) and, in each case, for
which the Borrower and all of its Restricted Subsidiaries shall have been validly released by all
applicable creditors in writing, (B) any securities, notes or other obligations or assets received by
the Borrower or the applicable Restricted Subsidiary from such transferee that are converted by
the Borrower or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the
cash or Cash Equivalents received) within 180 days following the closing of the applicable
Disposition, and (C) aggregate non-cash consideration received by the Borrower or the
applicable Restricted Subsidiary having an aggregate fair market value (determined as of the
closing of the applicable Disposition for which such non-cash consideration is received) not to
exceed the greater of (x) $10,125,000 and (y) 1.25% of Total Assets (net of any non-cash
consideration converted into cash and Cash Equivalents) and (ii) such Disposition shall be for at
least the fair market value (as determined by the Borrower in good faith) of the assets or property
subject to such Disposition;
(c) Dispositions consisting of the licensing or sublicensing of intellectual
property and licenses, leases or subleases of other property, in each case in the ordinary course of
business or Dispositions of intellectual property, in the Borrower’s reasonable business
judgment, that are not material to the business of the Borrower and its Restricted Subsidiaries,
taken as a whole;
(d) Dispositions permitted by Section 8.04, that constitute a Lien permitted by
Section 8.01, that constitute an Investment permitted by Section 8.02 and that constitute a
Restricted Payment permitted by Section 8.06;
(e) to the extent allowable under Section 1031 of the Code (or comparable or
successor provision), any exchange of like property (excluding any boot thereon permitted by
such provision);
(f) any swap of assets in exchange for services or other assets in the ordinary
course of business of comparable or greater value or usefulness to the business of the Borrower
and its Subsidiaries as a whole, as determined in good faith by the management of the Borrower;
(g) any sale of Capital Stock in, or Indebtedness or other securities of, an
Unrestricted Subsidiary;
(h) Dispositions of Investments (including equity interests) in joint ventures to
the extent required by, or made pursuant to customary buy/sell arrangements between, the joint
venture parties set forth in joint venture arrangements and similar binding arrangements;
(i) the lapse or abandonment in the ordinary course of business of any
registrations or applications for registration of any immaterial IP Rights;
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(j) Dispositions of non-core assets acquired in any Acquisition consummated
after the Closing Date; provided that the aggregate value of any property Disposed of after any
Acquisition shall not exceed 20% of the aggregate consideration for such Acquisition; and
(k) Dispositions by any Credit Party to any wholly-owned Restricted
Subsidiary of the type described in clauses (d), (h) and (i) of the definition of “Excluded
Subsidiary” to the extent consisting of contributions or other Dispositions of Capital Stock in
other Subsidiaries of the type described in clauses (d), (h) or (i) of the definition of “Excluded
Subsidiary” to such wholly-owned Restricted Subsidiary.
To the extent any Collateral is Disposed of as expressly permitted by this Section 8.05 to
any Person other than the Borrower or a Credit Party, such Collateral shall be sold free and clear
of the Liens created by the Credit Documents, and the Administrative Agent shall be authorized
to take any actions deemed appropriate in order to effect the foregoing.
Section 8.06. Restricted Payments. Declare or make, directly or indirectly, any
Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that:
(a) Restricted Subsidiaries of the Borrower may pay dividends and make
distributions in respect of their Capital Stock ratably to their equity holders;
(b) the Borrower may declare and make dividend payments or other
distributions payable solely in the common stock or other common equity interests of the
Borrower;
(c) repurchases of Capital Stock in the Borrower or any Restricted Subsidiary
of the Borrower deemed to occur upon exercise of stock options or warrants or the settlement or
vesting of other equity-based awards if such Capital Stock represents a portion of the exercise
price of, or tax withholdings with respect to, such options, warrants or other equity-based
awards;
(d) the Borrower may purchase, redeem or otherwise acquire shares of its
common stock or other common equity interests or warrants or options to acquire any such
shares with the proceeds received from the substantially concurrent issue of new shares of its
common stock or other common equity interests to the extent such proceeds have not been
applied as a utilization of the Cumulative Equity Credit;
(e) the Borrower and each Restricted Subsidiary may pay for the repurchase,
retirement or other acquisition or retirement for value of Capital Stock or settlement of equity-
based awards of such Restricted Subsidiary (or of the Borrower) held by any future, present or
former employee, officer, director, manager, consultant or independent contractor (or any
spouses, former spouses, successors, executors, administrators, heirs, legatees or distributes of
any of the foregoing) of such Restricted Subsidiary (or the Borrower) or any of its Subsidiaries,
in each case, upon the death, disability, retirement or termination of employment or services, as
applicable, of any such Person or pursuant to any equity plan, stock option plan or any other
benefit or incentive plan or any agreement (including any stock subscription agreement,
shareholder agreement or stockholders’ agreement) with any employee, director, officer,
manager, consultant or independent contractor of such Restricted Subsidiary (or the Borrower) or
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any of its Restricted Subsidiaries; provided that the aggregate amount of Restricted Payments
made pursuant to this clause (e) shall not exceed the greater of (x) $6,750,000 and (y) 0.75% of
Total Assets determined as of the last day of the immediately preceding fiscal year in any
calendar year (with 100% of the unused amounts in any calendar year being carried over to the
next two succeeding calendar years); provided, further, that the foregoing amount shall be
increased by the Net Cash Proceeds of key man life insurance policies received by the Borrower
or its Restricted Subsidiaries less the amount of Restricted Payments previously made with the
cash proceeds of such key man life insurance policies;
(f) the Borrower or any of the Restricted Subsidiaries may pay cash in lieu of
fractional Capital Stock in connection with any dividend, split or combination thereof or any
Acquisition;
(g) so long as no Event of Default shall have occurred and be continuing at
the time, Restricted Payments in an aggregate amount per annum not to exceed an amount equal
to 6% of the net proceeds received by (or contributed to) the Borrower and its Restricted
Subsidiaries from all Equity Offerings after the Closing Date;
(h) so long as no Event of Default shall have occurred and be continuing at
the time, Restricted Payments in an aggregate amount not to exceed, together with the aggregate
amount of all prepayments of Junior Debt made pursuant to Section 8.12(a)(iii), at the time any
such Restricted Payment is made, the sum of (x) the greater of (i) $20,250,000 and (ii) 2.25% of
Total Assets and (y) the Cumulative Equity Credit;
(i) Restricted Payments may be made by the Borrower so long as, at the time
any such Restricted Payment is made, the Payment Conditions are satisfied; and
(j) to the extent constituting Restricted Payment, the Borrower or any of its
Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any
provision of Section 8.04 and Section 8.09 (other than Section 8.09(d)).
Section 8.07. Change in Nature of Business. Engage in any material line of business
substantially different from those lines of business conducted by the Borrower and its Restricted
Subsidiaries on the Closing Date (or that would be conducted after giving effect to the
Transactions) or any business substantially related, complementary, synergistic, ancillary or
incidental thereto (including related, complementary, synergistic, ancillary or incidental
technologies) or reasonable extensions thereof.
Section 8.08. Change in Fiscal Year. Change its fiscal year (except, on one occasion, to
change its fiscal year to a fiscal year ending September 30 or December 31); provided, however,
that the Borrower may, upon written notice to the Administrative Agent, change its fiscal year to
any other fiscal year reasonably acceptable to the Administrative Agent, in which case, the
Borrower and the Administrative Agent will, and are hereby authorized by the Lenders to, make
any adjustments to this Agreement that are necessary to reflect such change in fiscal year.
Section 8.09. Transactions with Affiliates. Enter into any transaction of any kind with
any Affiliate of the Borrower involving aggregate payments or consideration in excess of
$1,000,000 for any individual transaction or series of related transactions, whether or not in the
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ordinary course of business, other than (a) transactions on fair and reasonable terms substantially
as favorable to the Borrower or such Restricted Subsidiary as would be obtainable by the
Borrower or such Restricted Subsidiary at the time in a comparable arm’s length transaction with
a Person other than an Affiliate, (b) transactions amongst the Borrower and its Restricted
Subsidiaries or any entity that becomes a Restricted Subsidiary as a result of such transaction, (c)
payment of reasonable compensation (including reasonable salary, bonus and other reasonable
incentive arrangements) and stock option and other equity or incentive award plans and
employee benefit plans, practices and arrangements for directors, officers, employees, managers,
consultants and independent contractors, (d) directors’ fees and reasonable out of pocket costs to,
and indemnities provided on behalf of, directors, officers, employees, consultants and
independent contractors of the Borrower and its Restricted Subsidiaries, (e) Restricted Payments
permitted pursuant to Section 8.06, (f) Investments permitted by Section 8.02(b), Section 8.02(c),
Section 8.02(g), Section 8.02(o), (g) Dispositions permitted by Section 8.05(h), (h) transactions
pursuant to agreements, instruments or arrangements in existence on the Closing Date and set
forth in Schedule 8.09 or any amendment thereto to the extent such an amendment is not adverse
to the Lenders in any material respect, (i) transactions with customers, clients, joint venture
partners, suppliers or purchasers or sellers of goods or services, in each case in the ordinary
course of business and otherwise in compliance with the terms of this Agreement that are fair to
the Borrower and its Restricted Subsidiaries, in the reasonable determination of the Board of
Directors or the senior management of the Borrower, or are on terms at least as favorable as
might reasonably have been obtained at such time from a Person that is not an Affiliate, (j)
transactions in which the Borrower or any of the Restricted Subsidiaries, as the case may be,
deliver to the Administrative Agent a letter from an independent financial advisor stating that
such transaction is fair to the Borrower or such Restricted Subsidiary from a financial point of
view or meets the requirements of clause (a) of this Section 8.08, (k) payments to or from, and
transactions with, joint ventures (to the extent any such joint venture is only an Affiliate as a
result of Investments by the Borrower and its Restricted Subsidiaries in such joint venture) to the
extent otherwise constituting an Investment or Restricted Payment permitted under this
Agreement, (l) Indebtedness permitted by Section 8.03(j), and (m) transactions with an Escrow
Borrower, including any Escrow Funding Assignment, any Escrow Assumption and the entrance
into any agreements related thereto so long as the proceeds of any related Indebtedness of the
assets or Capital Stock acquired therewith are promptly contributed or otherwise transferred to
the Borrower or a Subsidiary promptly upon the use of such proceeds.
Section 8.10. [Reserved].
Section 8.11. Financial Covenants.
(a) Consolidated Cash Interest Coverage Ratio. Permit the Consolidated
Cash Interest Coverage Ratio as of the last day of any Test Period (commencing with the Test
Period ending September 30, 2016) to be less than 3.00:1.00.
(b) Consolidated Total Net Leverage Ratio. Permit the Consolidated Total
Net Leverage Ratio as of the last day of any Test Period (commencing with the Test Period
ending September 30, 2016) to be greater than 3.50:1.00 (or, for any Test Period ending after the
consummation of any Material Acquisition and prior to the end of the fourth fiscal quarter end
following such Material Acquisition, 4.00 to 1.00).
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Section 8.12. Prepayments etc. of Indebtedness.
(a) Prepay, redeem, purchase, defease or otherwise satisfy prior to the
scheduled maturity thereof in any manner (it being understood that payments of regularly
scheduled principal, interest and mandatory prepayments shall be permitted) any Incremental
Equivalent Debt, any Refinancing Equivalent Debt, any Ratio Debt or any other Indebtedness for
borrowed money of a Credit Party, in each case, that is (x) unsecured or (y) subordinated in right
of payment to the Loan Obligations expressly by its terms or to the Lien securing the Collateral
expressly by its terms (other than Indebtedness among the Borrower and its Restricted
Subsidiaries) to the extent permitted by any applicable subordination provisions (collectively,
“Junior Debt”), except (i) any Permitted Refinancing thereof, (ii) the conversion of any such
Junior Debt to Capital Stock (other than Disqualified Stock) of the Borrower from the
substantially concurrent issuance of new shares of its common stock or other common equity
interests, (iii) prepayments, redemptions, purchases, defeasances and other repayments in respect
to Junior Debt in an aggregate amount not to exceed, together with the aggregate amount of all
Restricted Payments made pursuant to Section 8.06(h), at the time any such prepayment,
redemption, purchase, defeasance or other repayment is made, the sum of (x) the greater of (a)
$20,250,000 and (b) 2.25% of Total Assets and (y) the Cumulative Equity Credit, and (iv)
prepayments, redemptions, purchases, defeasances and other repayments in respect of Junior
Debt so long as, after giving effect to such prepayments, redemptions, purchases, defeasances
and other repayments, the Payment Conditions are satisfied.
(b) Amend, modify or change in any manner materially adverse to the
interests of the Lenders, as determined in good faith by the Borrower, any term or condition of
any Junior Debt having an aggregate outstanding principal amount in excess of $15,000,000
(other than as a result of any Permitted Refinancing in respect thereof) without the consent of the
Administrative Agent (which consent shall not be unreasonably withheld, conditioned or
delayed).
Section 8.13. Burdensome Agreements. Enter into, incur or permit to exist any
agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the
ability of the Borrower or any Credit Party to create, incur or permit to exist any Lien upon any
of its property or assets to secure the Obligations or (ii) the ability of any Restricted Subsidiary
that is not a Credit Party to pay dividends or other distributions with respect to any of its Capital
Stock; provided that (A) the foregoing shall not apply to restrictions and conditions imposed by
Law, or by any Credit Document, or with respect to clause (ii) above any document evidencing
any Ratio Debt, Incremental Equivalent Debt or Refinancing Equivalent Debt (or any Permitted
Refinancing thereof), (B) the foregoing shall not apply to customary provisions in joint venture
agreements and other similar agreements applicable to joint ventures constituting Investments
permitted hereunder and applicable solely to such joint venture, (C) the foregoing shall not apply
to restrictions and conditions imposed on any Restricted Subsidiary that is not a Credit Party by
the terms of any Indebtedness of such Restricted Subsidiary that is not a Credit Party permitted
to exist or be incurred hereunder, (D) clause (i) of the foregoing shall not apply to restrictions or
conditions imposed by any agreement relating to secured Indebtedness permitted hereunder if
such restrictions or conditions apply only to the property or assets financed by such
Indebtedness, (E) clause (i) of the foregoing shall not apply to customary provisions in leases,
licenses, purchase money contracts and other contracts (including joint venture agreements)
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restricting the assignment, sublease or sublicense thereof, (F) the foregoing shall not apply to
restrictions that arise in connection with cash or other deposits imposed by customers under
contracts entered into in the ordinary course of business and not prohibited hereunder, (G) the
foregoing shall not apply to Contractual Obligations which (x) exist on the Closing Date and (to
the extent not otherwise permitted by this Section 8.13) are listed in Schedule 8.13 and (y) to the
extent Contractual Obligations permitted by clause (x) are set forth in an agreement evidencing
Indebtedness, are set forth in any agreement evidencing any permitted modification,
replacement, renewal, extension or refinancing of such Indebtedness so long as such
modification, replacement, renewal, extension or refinancing does not expand the scope of such
Contractual Obligation, (H) the foregoing shall not apply to Contractual Obligations which are
binding on a Restricted Subsidiary at the time such Restricted Subsidiary first becomes a
Restricted Subsidiary of the Borrower, so long as such Contractual Obligations were not entered
into solely in contemplation of such Person becoming a Restricted Subsidiary of the Borrower or
entered into for the purpose of creating such prohibition or restrictions, (I) the foregoing shall not
apply to Contractual Obligations which arise in connection with cash or other deposits permitted
under Sections 8.01, and limited to such cash or deposits, (J) the foregoing shall not apply to
Contractual Obligations which comprise restrictions imposed by any agreement relating to
secured Indebtedness permitted pursuant to Section 8.03(f), (k) (with respect to clause (i)), (h)
and (m)(i) to the extent that such restrictions apply only to the property or assets subject to such
Indebtedness or, in the case of Section 8.03(h), to the Restricted Subsidiaries incurring or
guaranteeing such Indebtedness, (K) the foregoing shall not apply to Contractual Obligations
which are customary restrictions that arise in connection with (x) any Lien permitted by Sections
8.01(g), (h), (p), (r), (x)(i), (x)(ii), (y) and (z) and relate to the property subject to such Lien or
(y) arise in connection with any Disposition permitted by Section 8.04 or 8.05 and relate solely
to the assets or Person subject to such Disposition, (L) the foregoing shall not apply to
Contractual Obligations which comprise restrictions imposed by any agreement governing
Indebtedness entered into on or after the Closing Date and permitted under Section 8.03 that are,
taken as a whole, in the good faith judgment of the Borrower, no more restrictive in any material
respect with respect to the Borrower or any Restricted Subsidiary than those encumbrances and
other restrictions that are in effect on the Closing Date pursuant to agreements and instruments in
effect on the Closing Date or, if applicable, on the date on which such Restricted Subsidiary
became a Restricted Subsidiary pursuant to agreements and instruments in effect on such date.
ARTICLE 9
EVENTS OF DEFAULT AND REMEDIES
Section 9.01. Events of Default. Any of the following shall constitute an Event of
Default:
(a) Non-Payment. The Borrower or any other Credit Party fails to pay (i)
when and as required to be paid herein and in the currency required hereunder, any amount of
principal of any Loan or any L/C Obligation, or (ii) within five (5) Business Days after the same
becomes due, any interest on any Loan or on any L/C Obligation, any fee due hereunder or any
other amount payable hereunder or under any other Credit Document; or
(b) Specific Covenants. The Borrower or any other Credit Party fails to
perform or observe any term, covenant or agreement contained in any of Sections 7.03(a),
7.05(a) (solely with respect to the Borrower), 7.11, 7.15 or Article 8; or
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(c) Other Defaults. The Borrower or any other Credit Party fails to perform
or observe any other covenant or agreement (not specified in subsection (a) or (b) above)
contained in any Credit Document on its part to be performed or observed and such failure
continues for 30 days after the date upon which written notice thereof is given by the
Administrative Agent; or
(d) Representations and Warranties. Any representation, warranty,
certification or statement of fact made or deemed made by or on behalf of the Borrower or any
other Credit Party herein, in any other Credit Document, or in any document delivered in
connection herewith or therewith shall be false or misleading in any material respect when made
or deemed made; or
(e) Cross-Default. The Borrower or any Restricted Subsidiary (A) fails to
make any payment when due (whether by scheduled maturity, required prepayment, acceleration,
demand, or otherwise, but after giving effect to any applicable grace period) in respect of any
Indebtedness (other than Indebtedness hereunder) having an aggregate outstanding principal
amount (including amounts owing to all creditors under any combined or syndicated credit
arrangement) of more than $15,000,000, or (B) fails to observe or perform any other agreement
or condition relating to any such Indebtedness or contained in any instrument or agreement
evidencing, securing or relating thereto (in each case, after giving effect to any applicable grace
period), or any other event occurs (other than, in any case pursuant to this clause (B) with respect
to Indebtedness consisting of Swap Contracts, termination events or equivalent events pursuant
to the terms of such Swap Contracts and not as a result of any other default thereunder by any
Credit Party), the effect of which default or other event is to cause, or to permit the holder or
holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause,
with the giving of notice if required, such Indebtedness to 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
but only to the extent that such failure is unremedied and is not waived by the holders of such
Indebtedness prior to any termination of the Revolving Credit Commitments or acceleration of
the Loans pursuant to Section 9.02; or
(f) Insolvency Proceedings, Etc. The Borrower or any Restricted Subsidiary
that is a Material 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 calendar days; or any proceeding under any Debtor Relief Law relating to any such Person
or to all or any material part of its property is instituted without the consent of such Person and
continues undismissed or unstayed for 60 calendar days, or an order for relief is entered in any
such proceeding; or
(g) Inability to Pay Debts; Attachment. (i) The Borrower or any Restricted
Subsidiary that is a Material 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
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execution or similar process is issued or levied against all or any material part of the property of
any such Person and is not released, vacated or fully bonded within 60 days after its issue or
levy; or
(h) Judgments. There is entered against the Borrower or any Restricted
Subsidiary a final judgment or order for the payment of money in an aggregate amount
exceeding $15,000,000 (to the extent not covered by independent third-party insurance as to
which the insurer does not dispute coverage), and (i) enforcement proceedings are commenced
by any creditor upon such judgment or order, or (ii) there is a period of 60 consecutive days
during which (1) a stay of enforcement of such judgment, by reason of a pending appeal or
otherwise, is not in effect or (2) the same is not discharged, satisfied or vacated; or
(i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or
Multiemployer Plan that has resulted or would reasonably be expected to result in liability of a
Credit Party under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in
an aggregate amount which could reasonably be expected to result in a Material Adverse Effect,
or (ii) a Credit Party or any ERISA Affiliate fails to pay when due, after the expiration of any
applicable grace period, any installment payment with respect to its withdrawal liability under
Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount which could
reasonably be expected to result in a Material Adverse Effect; or
(j) Invalidity of Credit Documents. Any material provision of any Credit
Document, at any time after its execution and delivery and for any reason other than as expressly
permitted hereunder or satisfaction in full of all the Obligations, ceases to be in full force and
effect; or any Credit Party contests in any manner the validity or enforceability of any Credit
Document; or any Credit Party denies that it has any or further liability or obligation under any
Credit Document, or purports to revoke, terminate or rescind any Credit Document; or
(k) Collateral Documents. (i) Any Collateral Document after delivery thereof
pursuant to Section 5.01, 7.11, 7.13 or 7.15 shall for any reason (other than pursuant to the terms
hereof or thereof including as a result of a transaction not prohibited under this Agreement) cease
to create a valid and perfected Lien, with the priority required by the Collateral Documents on
and security interest in any material portion of the Collateral purported to be covered thereby,
subject to Liens permitted under Section 8.01, (x) except to the extent that any such perfection or
priority is not required pursuant to the Collateral and Guarantee Requirement or results from the
failure of the Administrative Agent to maintain possession of certificates actually delivered to it
representing securities pledged under the Collateral Documents or to file the original Uniform
Commercial Code financing statements provided to it on the Closing Date or to file Uniform
Commercial Code continuation statements and (y) except as to Collateral consisting of real
property to the extent that such losses are covered by a lender’s title insurance policy and such
insurer has not denied coverage or (ii) any Lien created or purported to be created by the
Collateral Documents shall cease to have the lien priority established or purported to be
established by the applicable intercreditor agreement; or
(l) Change of Control. There occurs any Change of Control.
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Section 9.02. Remedies Upon Event of Default. If any Event of Default occurs and is
continuing, the Administrative Agent shall, at the request of, or may, with the consent of, the
Required Lenders, take any or all of the following actions:
(a) declare the Commitments of the Lenders to make Loans and the 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 Credit Document to be immediately due and payable, without presentment, demand,
protest or other notice of any kind, all of which are hereby expressly waived by the Borrower;
(c) require that the Borrower Cash Collateralize the L/C Obligations (in an
amount equal to 103% of the then Outstanding Amount thereof); and
(d) exercise on behalf of itself and the Lenders all rights and remedies
available to it or to the Lenders under the Credit Documents or applicable Law; provided that
upon the occurrence of an Event of Default under Section 9.01(f), the obligation of each Lender
to make Loans and any obligation of the 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
Borrower to Cash Collateralize the L/C Obligations as aforesaid shall automatically become
effective, in each case without further act of the Administrative Agent or any Lender.
Section 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(d)), any amounts received on account of the Obligations shall be applied
by the Administrative Agent in the following order:
First, to payment of that portion of the Obligations constituting fees, indemnities,
expenses and other amounts (including reasonable attorneys’ fees and disbursements and
amounts payable under Article 3) payable to the Administrative Agent in its capacity as such;
Second, to payment of that portion of the Obligations constituting fees, indemnities and
other amounts (other than principal, interest and Letter of Credit Fees) payable to the Lenders
(including reasonable attorneys’ fees and disbursements and amounts payable under Article 3),
ratably among the Lenders in proportion to the amounts described in this clause Second payable
to them;
Third, to payment of that portion of the Obligations constituting accrued and unpaid
Letter of Credit Fees, interest on the Loans and L/C Borrowings, ratably among the Lenders and
the L/C Issuer in proportion to the respective amounts described in this clause Third payable to
them;
Fourth, to (i) payment of that portion of the Obligations constituting unpaid principal of
the Loans, L/C Borrowings and other Obligations, (ii) payment of fees, premiums, scheduled
periodic payments, breakage, termination and any interest accrued thereon or other amounts
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owing in respect of any Swap Contract between the Borrower and any of its Restricted
Subsidiaries and any Lender, or any Affiliate of a Lender, to the extent that such Swap Contract
is permitted hereunder, (iii) payments of amounts due under any Treasury Management
Agreement between the Borrower or any of its Restricted Subsidiaries and any Lender, or any
Affiliate of a Lender and (iv) the Administrative Agent for the account of the L/C Issuer, to Cash
Collateralize that portion of the L/C Obligations comprised of the aggregate undrawn amount of
Letters of Credit, ratably among such parties in proportion to the respective amounts described in
this clause Fourth payable to them;
Last, the balance, if any, after all of the Obligations have been indefeasibly paid in full, to
the Borrower or as otherwise required by Law; provided that, subject to Section 2.03, amounts
used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause
Fourth 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, and if not so applied shall be returned to the Borrower.
ARTICLE 10
ADMINISTRATIVE AGENT
Section 10.01. Appointment and Authorization of Administrative Agent.
(a) Each of the Lenders and the L/C Issuer hereby irrevocably appoints (i)
Bank of America to act on its behalf as the Administrative Agent and Collateral Agent hereunder
and under the other Credit Documents and (ii) 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 10 (other than Section 10.06 (solely with respect to the
removal and consent/consultation rights set forth therein) and Section 10.10) are solely for the
benefit of the Administrative Agent, the Lenders and the L/C Issuer, and the Credit Parties shall
not have rights as a third party beneficiary of any of such provisions.
(b) Each Lender hereby irrevocably appoints, designates and authorizes the
Collateral Agent to take such action on its behalf under the provisions of this Credit Agreement
and each other Credit Document and to exercise such powers and perform such duties as are
expressly delegated to it by the terms of this Credit Agreement or any other Credit Document,
together with such powers as are reasonably incidental thereto. In connection herewith, the
Administrative Agent, as Collateral Agent, and any co-agents, sub-agents and attorneys-in-fact
appointed by the Administrative Agent pursuant to Section 10.05 for purposes of holding or
enforcing any Lien on the Collateral (or any portion thereof) granted under the Credit
Documents, or for exercising any rights and remedies thereunder at the direction of the
Administrative Agent, shall be entitled to the benefits of all provisions of this Article 10 and
Article 11 (including Section 11.04, as though such co-agents, sub-agents and attorneys-in-fact
were the Collateral Agent under the Credit Documents) as if set forth in full herein with respect
thereto. Notwithstanding any provision to the contrary contained elsewhere herein or in any
other Credit Document, the Collateral Agent shall not have any duties or responsibilities, except
those expressly set forth herein or therein, nor shall the Collateral Agent have or be deemed to
have any fiduciary relationship with any Lender or participant, and no implied covenants,
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functions, responsibilities, duties, obligations or liabilities shall be read into this Credit
Agreement or any other Credit Document or otherwise exist against the Collateral Agent.
Without limiting the generality of the foregoing sentence, the use of the term “agent” herein and
in the other Credit Documents with reference to the Collateral Agent is not intended to connote
any fiduciary or other implied (or express) obligations arising under agency doctrine of any
applicable Law. Instead, such term is used merely as a matter of market custom, and is intended
to create or reflect only an administrative relationship between independent contracting parties.
The Collateral Agent shall act on behalf of the Lenders with respect to the Collateral and the
Credit Documents, and the Collateral Agent shall have all of the benefits and immunities (i)
provided to the Administrative Agent under the Credit Documents with respect to any acts taken
or omissions suffered by the Collateral Agent in connection with any Collateral or the Collateral
Documents as fully as if the term “Administrative Agent” as used in such Credit Documents
included the Collateral Agent with respect to such acts or omissions, and (ii) as additionally
provided herein or in the other Credit Documents with respect to the Collateral Agent.
Section 10.02. Rights as a Lender. The Person serving as the Administrative Agent
hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender
and may exercise the same as though it were not the Administrative Agent and the term “Lender”
or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires,
include the Person serving as the Administrative Agent hereunder in its individual capacity.
Such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as
the financial advisor or in any other advisory capacity for and generally engage in any kind of
business with the Borrower or any Subsidiary or other Affiliate thereof as if such Person were
not the Administrative Agent hereunder and without any duty to account therefor to the Lenders.
Section 10.03. Exculpatory Provisions. The Administrative Agent shall not have any
duties or obligations except those expressly set forth herein and in the other Credit Documents,
and its duties hereunder shall be administrative in nature. Without limiting the generality of the
foregoing, the Administrative Agent:
(a) shall not be subject to any fiduciary or other implied duties, regardless of
whether a Default or Event of Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly contemplated hereby or
by the other Credit Documents that the Administrative Agent is required to exercise as directed
in writing by the Required Lenders (or such other number or percentage of the Lenders as shall
be expressly provided for herein or in the other Credit Documents); provided that the
Administrative Agent shall not be required to take any action that, in its opinion or the opinion of
its counsel, may expose the Administrative Agent to liability or that is contrary to any Credit
Document or applicable Law, including for the avoidance of doubt any action that may be in
violation of the automatic stay under any Debtor Relief Law or that may affect a forfeiture,
modification or termination of property of a Defaulting Lender in violation of any Debtor Relief
Law;
(c) shall not, except as expressly set forth herein and in the other Credit
Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any
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information relating to the Borrower or any of its Affiliates that is communicated to or obtained
by the Person serving as the Administrative Agent or any of its Affiliates in any capacity; and
(d) shall not be responsible or have any liability for, or have any duty to
ascertain, inquire into, monitor the list or identities of, or enforce, compliance with the provisions
hereof relating to Disqualified Institutions.
Without limiting the generality of the foregoing, the Administrative Agent shall not (x)
be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or
prospective Lender or Participant is a Disqualified Institution or (y) have any liability with
respect to or arising out of any assignment or participation of Loans, or disclosure of confidential
information, to any Disqualified Institution.
The Administrative Agent shall not be liable for any action taken or not taken by it (i)
with the consent or at the request of the Required Lenders (or such other number or percentage
of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith
shall be necessary, under the circumstances as provided in Sections 11.01 and 9.02) or (ii) in the
absence of its own gross negligence, bad faith or willful misconduct as determined by a court of
competent jurisdiction by final and nonappealable judgment. The Administrative Agent shall be
deemed not to have knowledge of any Default or Event of Default unless and until notice
describing such Default is given to the Administrative Agent in writing by the Borrower, a
Lender or the L/C Issuer.
The Administrative Agent shall not be responsible for or have any duty to ascertain or
inquire into (1) any statement, warranty or representation made in or in connection with this
Credit Agreement or any other Credit Document, (2) the contents of any certificate, report or
other document delivered hereunder or thereunder or in connection herewith or therewith, (3) 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 or Event of Default, (4) the validity,
enforceability, effectiveness or genuineness of this Credit Agreement, any other Credit
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, (5) the value or sufficiency of
any Collateral, or (6) the satisfaction of any condition set forth in Article 5 or elsewhere herein,
other than to confirm receipt of items expressly required to be delivered to the Administrative
Agent.
Section 10.04. Reliance by Administrative Agent. The Administrative Agent shall be
entitled to rely upon, and shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing (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. The
Administrative 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, extension, renewal or increase of a Letter of Credit, that by its terms must
be fulfilled to the satisfaction of a Lender or the L/C Issuer, the Administrative Agent may
presume that such condition is reasonable satisfactory to such Lender or the L/C Issuer unless the
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Administrative Agent shall have received notice to the contrary from such Lender or the L/C
Issuer prior to the making of such Loan or the issuance of such Letter of Credit. The
Administrative Agent may consult with legal counsel (who may be counsel for the Borrower),
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.
Section 10.05. Delegation of Duties. The Administrative Agent may perform any and all
of its duties and exercise its rights and powers hereunder or under any other Credit Document by
or through any one or more sub-agents appointed by the Administrative Agent; provided,
however, that any such sub-agent receiving payments from the Credit Parties shall be a “U.S.
person” and a “financial institution” within the meaning of Treasury Regulations 1.1441-1. The
Administrative Agent and any such sub-agent may perform any and all of its duties and exercise
its rights and powers by or through their respective Related Parties. The exculpatory provisions
of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative
Agent and any such sub-agent, and shall apply to their respective activities in connection with
the syndication of the credit facilities provided for herein as well as activities as Administrative
Agent.
Section 10.06. Resignation of the Administrative Agent. The Administrative Agent may
at any time give notice of its resignation to the Lenders, the L/C Issuer and the Borrower. If the
Administrative Agent is subject to an Agent-Related Distress Event, the Required Lenders may
remove the Administrative Agent upon ten (10) days’ notice. Upon receipt of any such notice of
resignation or upon such removal of the Administrative Agent, the Required Lenders shall have
the right, in consultation with the Borrower, 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; provided that such successor shall be a “U.S. person” and a “financial institution” within
the meaning of Treasury Regulations Section 1.1441-1. If no such successor shall have been so
appointed by the Required Lenders and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of its resignation (or such earlier day as shall
be agreed to by the Required Lenders) (the “Resignation Effective Date”)), then the retiring
Administrative Agent may (but shall not be obligated to) on behalf of the Lenders and the L/C
Issuer, appoint a successor Administrative Agent meeting the qualifications set forth above
subject to the consultation rights of the Borrower in connection with such appointment. Whether
or not a successor has been appointed, such resignation shall become effective in accordance
with such notice on the Resignation Effective Date.
Commencing on the Resignation Effective Date (1) the retiring Administrative Agent
shall be discharged from its duties and obligations hereunder and under the other Credit
Documents (except that in the case of any collateral security held by the Administrative Agent
on behalf of the Lenders or the L/C Issuer under any of the Credit Documents, the retiring or
removed Administrative Agent shall continue to hold such collateral security until such time as a
successor Administrative Agent is appointed) and (2) all payments, communications and
determinations provided to be made by, to or through the Administrative Agent shall instead be
made by or to each Lender and the L/C Issuer directly, until such time, if any, as the Required
Lenders appoint a successor Administrative Agent as provided for above in this Section. Upon
the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor
shall succeed to and become vested with all of the rights, powers, privileges and duties of the
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retiring or removed Administrative Agent, and the retiring or removed Administrative Agent
shall be discharged from all of its duties and obligations hereunder or under the other Credit
Documents (if not already discharged therefrom as provided above in this Section). The fees
payable by the Borrower to a successor Administrative Agent shall be the same as those payable
to its predecessor unless otherwise agreed to between the Borrower and such successor. After
the retiring Administrative Agent’s resignation or the removed Administrative Agent’s removal
hereunder and under the other Credit Documents, the provisions of this Article and Section 11.04
shall continue in effect for the benefit of such retiring or removed Administrative Agent, its sub-
agents and their respective Related Parties in respect of any actions taken or omitted to be taken
by any of them while the retiring or removed Administrative Agent was acting as Administrative
Agent.
Any resignation by or removal of Bank of America as Administrative Agent pursuant to
this Section shall also constitute its resignation or removal as the Collateral Agent, the L/C Issuer
and the Swingline Lender. Upon the acceptance of a successor’s appointment as Administrative
Agent hereunder, (i) such successor shall succeed to and become vested with all of the rights,
powers, privileges and duties of the retiring Collateral Agent, L/C Issuer and Swingline Lender,
(ii) the retiring Collateral Agent, L/C Issuer and Swingline Lender shall be discharged from all of
their respective duties and obligations hereunder or under the other Credit Documents, and (iii)
the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any,
outstanding at the time of such succession or make other arrangements reasonable satisfactory to
the retiring L/C Issuer to effectively assume the obligations of the retiring L/C Issuer with
respect to such Letters of Credit.
Section 10.07. Non-Reliance on Administrative Agent and Other Lenders. Each Lender
and the L/C Issuer acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender or any of their Related Parties and based on such
documents and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Credit Agreement. Each Lender and the L/C Issuer also acknowledges
that it will, independently and without reliance upon the Administrative Agent or any other
Lender or any of their Related Parties and based on such documents and information as it shall
from time to time deem appropriate, continue to make its own decisions in taking or not taking
action under or based upon this Credit Agreement, any other Credit Document or any related
agreement or any document furnished hereunder or thereunder.
Section 10.08. No Other Duties. Anything herein to the contrary notwithstanding, none
of the Arrangers, book managers or syndication or documentation agents listed on the cover page
hereof shall have any powers, duties or responsibilities under this Credit Agreement or any of the
other Credit Documents, except in its capacity, as applicable, as the Administrative Agent, a
Lender or the L/C Issuer hereunder.
Section 10.09. Administrative Agent May File Proofs of Claim; Credit Bidding. In case
of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding
relative to any Credit 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 (but not obligated), by intervention in such
proceeding or otherwise:
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(a) to file and prove a claim for the whole amount of the principal and interest
owing and unpaid in respect of the Loans, L/C Obligations and all other Obligations (other than
obligations under Swap Contracts or Treasury Management Agreements to which the
Administrative Agent is not a party) 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 Issuer and
the Administrative Agent (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Lenders, the L/C Issuer and the Administrative Agent and
their respective agents and counsel and all other amounts due the Lenders, the L/C Issuer and the
Administrative Agent under Sections 2.09 and 11.04) allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or deliverable
on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial proceeding is hereby
authorized by each Lender and the L/C Issuer to make such payments to the Administrative
Agent and, in the event that the Administrative Agent shall consent to the making of such
payments directly to the Lenders and the L/C Issuer, 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 to the
Administrative Agent under Sections 2.09 and 11.04.
Nothing contained herein shall be deemed to authorize the Administrative Agent to
authorize or consent to or accept or adopt on behalf of any Lender or the L/C Issuer any plan of
reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of
any Lender or the L/C Issuer to authorize the Administrative Agent to vote in respect of the
claim of any Lender in any such proceeding.
The Secured Parties hereby irrevocably authorize the Administrative Agent, at the
direction of the Required Lenders, to credit bid all or any portion of the Secured Obligations
(including accepting some or all of the Collateral in satisfaction of some or all of the Secured
Obligations pursuant to a deed in lieu of foreclosure or otherwise) and in such manner purchase
(either directly or through one or more acquisition vehicles) all or any portion of the Collateral (a)
at any sale thereof conducted under the provisions of the Bankruptcy Code of the United States,
including under Sections 363, 1123 or 1129 of the Bankruptcy Code of the United States, or any
similar Laws in any other jurisdictions to which a Credit Party is subject, (b) at any other sale or
foreclosure or acceptance of collateral in lieu of debt conducted by (or with the consent or at the
direction of) the Administrative Agent (whether by judicial action or otherwise) in accordance
with any applicable Law. In connection with any such credit bid and purchase, the Secured
Obligations owed to the Secured Parties shall be entitled to be, and shall be, credit bid on a
ratable basis (with Secured Obligations with respect to contingent or unliquidated claims
receiving contingent interests in the acquired assets on a ratable basis that would vest upon the
liquidation of such claims in an amount proportional to the liquidated portion of the contingent
claim amount used in allocating the contingent interests) in the asset or assets so purchased (or in
the Capital Stock or debt instruments of the acquisition vehicle or vehicles that are used to
consummate such purchase). In connection with any such bid (i) the Administrative Agent shall
be authorized to form one or more acquisition vehicles to make a bid, (ii) to adopt documents
providing for the governance of the acquisition vehicle or vehicles (provided that any actions by
the Administrative Agent with respect to such acquisition vehicle or vehicles, including any
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disposition of the assets or Capital Stock thereof shall be governed, directly or indirectly, by the
vote of the Required Lenders, irrespective of the termination of this Agreement and without
giving effect to the limitations on actions by the Required Lenders contained in clauses (a)
through (e) of Section 11.01 of this Agreement, (iii) the Administrative Agent shall be authorized
to assign the relevant Secured Obligations to any such acquisition vehicle pro rata by the Lenders,
as a result of which each of the Lenders shall be deemed to have received a pro rata portion of
any Capital Stock and/or debt instruments issued by such an acquisition vehicle on account of
the assignment of the Secured Obligations to be credit bid, all without the need for any Secured
Party or acquisition vehicle to take any further action, and (iv) to the extent that Secured
Obligations that are assigned to an acquisition vehicle are not used to acquire Collateral for any
reason (as a result of another bid being higher or better, because the amount of Secured
Obligations assigned to the acquisition vehicle exceeds the amount of debt credit bid by the
acquisition vehicle or otherwise), such Secured Obligations shall automatically be reassigned to
the Lenders pro rata and the Capital Stock and/or debt instruments issued by any acquisition
vehicle on account of the Secured Obligations that had been assigned to the acquisition vehicle
shall automatically be cancelled, without the need for any Secured Party or any acquisition
vehicle to take any further action.
Section 10.10. Collateral and Guaranty Matters. Each of the Lenders and the L/C Issuer
irrevocably authorize the Administrative Agent and the Collateral Agent:
(a) to automatically release any Lien on any property granted to or held by the
Collateral Agent under any Credit Document (i) upon termination of the Aggregate
Commitments and payment in full of all Obligations (other than (i) contingent indemnification
obligations as to which no claim has been asserted and (ii) Obligations described in clauses (b)
and (c) of the definition thereof) and the expiration or termination of all Letters of Credit (other
than Letters of Credit that have been Cash Collateralized or back-stopped by a letter of credit in
form, amount and substance reasonably satisfactory to the Administrative Agent and the L/C
Issuer or a deemed reissuance under another facility or as to which other arrangements
reasonable satisfactory to the Administrative Agent and the L/C Issuer shall have been made),
(ii) that is sold or otherwise disposed of or to be sold or otherwise disposed of as part of or in
connection with any sale or other disposition permitted hereunder or under any other Credit
Document to a Person that is not a Credit Party, (iii) subject to Section 11.01, if approved,
authorized or ratified in writing by the Required Lenders, (iv) if the property subject to such Lien
is owned by a Guarantor, upon release of such Guarantor from its obligations under its Guaranty
pursuant to subsection (c) below or (v) if such property becomes Excluded Property;
(b) to subordinate any Lien on any property granted to or held by the
Collateral Agent under any Credit Document to the holder of any Lien on such property that is
permitted by Section 8.01(k); and
(c) to release any Guarantor from its obligations under any Guaranty pursuant
to Section 4.09.
Upon request by the Administrative Agent or the Collateral Agent at any time, the
Required Lenders will confirm in writing the authority of the Collateral Agent to release or
subordinate its interest in particular property and of the Administrative Agent to release any
Guarantor from its obligations hereunder pursuant to this Section 10.10. In each case as
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specified in this Section 10.10, the Administrative Agent and the Collateral Agent will (and each
Lender irrevocably authorizes the Administrative Agent and the Collateral Agent to), at the
Borrower’s expense, execute and deliver to the applicable Credit Party such documents as such
Credit 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 subordinate its
interest in such item, or to evidence the release of such Guarantor from its obligations under the
Guaranty, in each case in accordance with the terms of the Credit Documents and this
Section 10.10.
Section 10.11. Swap Contracts and Treasury Management Agreements. No Lender or
any Affiliate of a Lender that is party to any Swap Contract or any Treasury Management
Agreement permitted hereunder that obtains the benefits of Section 9.03 or any Collateral by
virtue of the provisions hereof or of any other Credit Document shall have any right to notice of
any action or to consent to, direct or object to any action hereunder or under any other Credit
Document or otherwise in respect of the Collateral (including the release or impairment of any
Collateral) other than in its capacity as a Lender and, in such case, only to the extent expressly
provided in the Credit Documents. Notwithstanding any other provision of this Article 10 to the
contrary, the Administrative Agent shall not be required to verify the payment of, or that other
reasonable satisfactory arrangements have been made with respect to, Obligations arising under
Swap Contracts and Treasury Management Agreements unless the Administrative Agent has
received written notice of such Obligations, together with such supporting documentation as the
Administrative Agent may request, from the applicable Lender or Affiliate of a Lender that is
party to such Swap Contract or such Treasury Management Agreement, as the case may be.
Section 10.12. Compliance with ERISA. Each Lender represents and warrants as of the
Amendment No. 1 Effective Date to the Administrative Agent, each Arranger and their
respective Affiliates, and not, for the avoidance of doubt, for the benefit of the Borrower or any
other Credit Party, that such Lender is not and will not be (1) an employee benefit plan subject to
Title 1 of ERISA, (2) a plan or account subject to Section 4975 of the Internal Revenue Code; (3)
an entity deemed to hold “plan assets” of any such plans or accounts for purposes of ERISA or
the Internal Revenue Code; or (4) a “governmental plan” within the meaning of ERISA.
ARTICLE 11
MISCELLANEOUS
Section 11.01. Amendments, Etc. Except as expressly provided in, Section 2.18, 2.19 and
2.20 and herein below, no amendment or waiver of, or any consent to deviation from, any
provision of this Credit Agreement or any other Credit Document shall be effective unless in
writing and signed by the Required Lenders (or by the Administrative Agent on behalf of the
Required Lenders upon receipt of a consent and direction letter from the Required Lenders) and
the Borrower and other Credit Parties, as the case may be, and acknowledged by the
Administrative Agent in its role as such (such acknowledgment not to be unreasonably withheld,
delayed or conditioned), and each such amendment, waiver or consent shall be effective only in
the specific instance and for the specific purpose for which it is given; provided that:
(a) no such amendment, waiver or consent (however characterized) shall:
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(i) extend or increase the Commitment of any Lender (or reinstate any
Commitment terminated pursuant to Section 9.02) (it being understood and
agreed that amendment or waiver of any condition precedent set forth in Section
5.02 or of any Default or Event of Default shall not be considered an extension or
increase in Commitments for purposes hereof) without the written consent of such
Lender;
(ii) waive non-payment or postpone any date fixed by this Credit
Agreement or any other Credit Document for any payment (excluding mandatory
prepayments) of principal, interest, fees or other amount due to the Lenders (or
any of them) hereunder or under any other Credit Document without the written
consent of each Lender directly and adversely affected thereby;
(iii) reduce the principal of, or the rate of interest specified herein on,
any Loan or L/C Borrowing (it being understood that any change to the definition
of “Consolidated Total Net Leverage Ratio” or in the component definitions
thereof shall not constitute a reduction in any rate of interest), or any fees or other
amounts payable hereunder or under any other Credit Document, in each case
without the written consent of each Lender directly and adversely affected
thereby; provided that only (A) the consent of the Required Lenders shall be
necessary to amend the definition of “Default Rate,” (B) the consent of the
applicable Required Facility Lenders shall be necessary to waive any obligation
of the Borrower to pay interest at the Default Rate with respect to Loans under
any Facility, and (C) the consent of the Required Revolving Credit Lenders shall
be necessary to waive any obligation of the Borrower to pay Letter of Credit Fees
at the Default Rate;
(iv) change any provision of this Section 11.01(a) or the definitions of
“Aggregate Commitment Percentage,” “Required 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 directly and
adversely affected thereby; provided that the definitions of “Required Revolving
Credit Lenders,” and “Required Term Lenders,” may only be amended with the
written consent of each Lender under the applicable Facility;
(v) release all or substantially all of the Guarantors from their
obligations under the Credit Documents (other than as provided herein or as
appropriate in connection with transactions permitted hereunder) without the
written consent of each Lender;
(vi) except in connection with a transaction permitted under Section
8.04 or Section 8.05 or as permitted by Section 10.10, release all or substantially
all of the Collateral without the written consent of each Lender;
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(vii) change Section 2.12 or Section 9.03 in a manner that would alter
the pro rata sharing of amounts required thereby without the written consent of
each Lender directly and adversely affected thereby;
(viii) (a) waive any condition set forth in Section 5.02 as to any Credit
Extension under one or more Classes of Revolving Credit Commitments or (b)
amend, waive or otherwise modify any term or provision which directly and
adversely affects Lenders under one or more Classes of Revolving Credit
Commitments and does not adversely affect Lenders under any other Class, in
each case, without the written consent of the Required Revolving Credit Lenders
under such applicable Class or Classes of Revolving Credit Commitments (and in
the case of multiple Classes which are affected, such Required Revolving Credit
Lenders shall consent together as one Class) (it being understood that any
amendment to the conditions of effectiveness of Incremental Commitments set
forth in Section 2.18 shall be subject to clause (ix) below); provided, however,
that the waivers described in this clause (viii) shall not require the consent of any
Lenders other than (A) the Required Revolving Credit Lenders under such Class
or Classes and (B) in the case of any waiver that otherwise would be subject to
clause (i), (ii), (iii), (iv) or (v) above, each Lender or each directly and adversely
affected Lender (as specified in clause (i), (ii), (iii), (iv) or (v) above) under the
applicable Class or Classes of Revolving Credit Commitments;
(ix) amend, waive or otherwise modify any term or provision
(including the availability and conditions to funding under Section 2.18 with
respect to Incremental Term Loans and Incremental Revolving Commitments and
the rate of interest applicable thereto) which directly affects Lenders of one or
more Incremental Term Loans or Incremental Revolving Commitments (including
Loans extended under such Commitments) and does not adversely affect Lenders
under any other Class, in each case, without the written consent of the Required
Facility Lenders under such applicable Class of Incremental Term Loans or
Incremental Revolving Commitments; provided, however, that the waivers
described in this clause (ix) shall not require the consent of any Lenders other
than (A) the Required Facility Lenders under such applicable Class of
Incremental Term Loans or Incremental Revolving Commitments and (B) in the
case of any waiver that otherwise would be subject to clause (i), (ii), (iii), (iv) or
(v) above, each Lender, each directly affected Lender or each directly and
adversely affected Lender (as specified in clause (i), (ii), (iii), (iv) or (v) above)
under the applicable Class or Classes of Incremental Term Loans or Incremental
Revolving Commitments (including Loans extended under such Commitments);
(b) unless also consented to in writing by the L/C Issuer, no such amendment,
waiver or consent shall affect the rights or duties of the L/C Issuer under this Credit Agreement
or any Issuer Document relating to any Letter of Credit issued or to be issued by it or the
definition of “Alternative Currency”;
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(c) unless also consented to in writing by the Swingline Lender, no such
amendment, waiver or consent shall affect the rights or duties of the Swingline Lender under this
Credit Agreement;
(d) unless also consented to in writing by the Administrative Agent, no such
amendment, waiver or consent shall affect the rights or duties of the Administrative Agent under
this Credit Agreement or any other Credit Document; and
(e) unless also consented to in writing by the Collateral Agent, no such
amendment, waiver or consent shall affect the rights or duties of the Collateral Agent under this
Credit Agreement or any other Credit Document;
provided that notwithstanding anything to the contrary contained herein, (1) no Defaulting
Lender shall have any right to approve or disapprove any amendment, waiver or consent
hereunder (any amendment, waiver or consent which by its terms requires the consent of all
Lenders or each affected Lender may be effected with the consent of the applicable Lenders
other than Defaulting Lenders), except that (a) the Revolving Credit Commitment of such
Defaulting Lender may not be increased or extended without the consent of such Defaulting
Lender and (b) any waiver, amendment or modification requiring the consent of all Lenders or
each affected Lender that by its terms affects any Defaulting Lender more adversely than other
affected Lenders shall require the consent of such Defaulting Lender, (2) each Lender is entitled
to vote as such Lender sees fit on any bankruptcy or insolvency reorganization plan that affects
the Loans, and (3) each Lender acknowledges that the provisions of Section 1126(c) of the
Bankruptcy Code supersede the unanimous consent provisions set forth herein. Notwithstanding
anything to the contrary herein, this Agreement may be amended (or amended and restated) with
the written consent of the Required Lenders, the Administrative Agent and the Borrower (a) to
add one or more additional credit facilities to this Agreement and to permit the extensions of
credit from time to time outstanding thereunder and the accrued interest and fees in respect
thereof to share ratably in the benefits of this Agreement and the other Credit Documents with
the Term Loans, Revolving Credit Loans, Swingline Loans and L/C Obligations and the accrued
interest and fees in respect thereof and (b) to include appropriately the Lenders holding such
credit facilities in any determination of the Required Lenders.
In addition, notwithstanding the foregoing, this Agreement may be amended with the
written consent of the Administrative Agent, the Borrower and the Lenders providing the
Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term
Loans of any Class (“Replaced Term Loans”) with replacement term loans (“Replacement
Term Loans”) hereunder (a “Replacement Amendment”); provided that (a) the aggregate
principal amount of such Replacement Term Loans shall not exceed the aggregate principal
amount of such Replaced Term Loans, plus accrued interest, fees, premiums (if any) and
penalties thereon and reasonable fees and expenses associated with such Replacement Term
Loans, (b) the all-in yield with respect to such Replacement Term Loans (or similar interest rate
spread applicable to such Replacement Term Loans) shall not be higher than the all-in yield for
such Refinanced Debt (or similar interest rate spread applicable to such Refinanced Debt)
immediately prior to such refinancing, (c) the Weighted Average Life to Maturity of such
Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of
such Replaced Term Loans at the time of such refinancing (except by virtue of amortization or
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prepayment of the Replaced Term Loans prior to the time of such incurrence) and (d) all other
terms applicable to such Replacement Term Loans shall be substantially identical to, or less
favorable to the Lenders providing such Replacement Term Loans than, those applicable to such
Replaced Term Loans, except to the extent necessary to provide for covenants and other terms
applicable to any period after the Latest Maturity Date of any Term Loans in effect immediately
prior to such refinancing. Each amendment to this Agreement providing for Replacement Term
Loans may, without the consent of any other Lenders, effect such amendments to this Agreement
and the other Credit Documents as may be necessary or appropriate, in the opinion of the
Administrative Agent and the Borrower to effect the provisions of this paragraph, and for the
avoidance of doubt, this paragraph shall supersede any other provisions in this Section 11.01 to
the contrary.
If the Administrative Agent and the Borrower shall have jointly identified an obvious
error (including, but not limited to, an incorrect cross-reference) or any error or omission of a
technical or immaterial nature, in each case, in any provision of this Agreement or any other
Credit Document (including, for the avoidance of doubt, any exhibit, schedule or other
attachment to any Credit Document), then the Administrative Agent (acting in its sole discretion)
and the Borrower or any other relevant Credit Party shall be permitted to amend such provision
and such amendment shall be deemed approved by the Lenders if the Lenders shall have
received five Business Days’ prior written notice of such change and the Administrative Agent
shall not have received, within five Business Days of the date of such notice to the Lenders, a
written notice from the Required Lenders stating that the Required Lenders object to such
amendment.
Notwithstanding any provision herein to the contrary, this Agreement may be amended
with the written consent of the Administrative Agent, the L/C Issuer and the Borrower to amend
the definition of “Alternative Currency” solely to add additional currency options and the
applicable interest rate with respect thereto, in each case solely to the extent permitted pursuant
to Section 1.11.
Section 11.02. Notices; Effectiveness; Electronic Communications.
(a) Notices Generally. Except in the case of notices and other
communications expressly permitted to be given by telephone (and except as provided in
subsection (b) below), all notices and other communications provided for herein shall be in
writing and shall be delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopier or electronic mail as follows, and all notices and other
communications expressly permitted hereunder to be given by telephone shall be made to the
applicable telephone number, as follows:
(i) if to any Credit Party, the Administrative Agent, the L/C Issuer or
the Swingline Lender, to the address, telecopier number, electronic mail address
or telephone number specified for such Person on Schedule 11.02 or as provided
pursuant to subsection (d) below; and
(ii) if to any other Lender, to the address, telecopier number, electronic
mail address or telephone number specified in its Administrative Questionnaire
(including, as appropriate, notices delivered solely to the Person designated by a
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Lender on its Administrative Questionnaire then in effect for the delivery of
notices that may contain material non-public information relating to the Credit
Parties) or as provided pursuant to subsection (d) below.
Notices and other communications sent by hand or overnight courier service, or
mailed by certified or registered mail, shall be deemed to have been given when received;
notices and other communications sent by 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 and other communications delivered through electronic
communications to the extent provided in subsection (b) below shall be effective as
provided in such subsection (b).
(b) Electronic Communications. Notices and other communications to the
Lenders and the L/C Issuer hereunder may be delivered or furnished by electronic
communication (including e-mail, FpML messaging, and Internet or intranet websites) pursuant
to procedures approved by the Administrative Agent, provided that the foregoing shall not apply
to notices to any Lender or the L/C Issuer pursuant to Article 2 if such Lender or the L/C Issuer,
as applicable, has notified the Administrative Agent that it is incapable of receiving notices
under such Article by electronic communication. The Administrative Agent or the Borrower
each 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 CREDIT PARTY MATERIALS OR THE
ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR
ERRORS IN OR OMISSIONS FROM THE CREDIT PARTY 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 CREDIT PARTY MATERIALS OR THE PLATFORM. In no event shall the
Administrative Agent or any of its Related Parties (collectively, the “Agent Parties”) have any
liability to the Borrower or any other Credit Party, any Lender, the L/C Issuer or any other
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Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract
or otherwise) arising out of the Borrower’s or any other Credit Party’s or the Administrative
Agent’s transmission of Credit Party 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 nonappealable judgment to have resulted from the gross negligence,
bad faith or willful misconduct of such Agent Party; provided, however, that in no event shall
any Agent Party have any liability to the Borrower or any other Credit Party, any Lender, the
L/C Issuer 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 Borrower, the Administrative Agent,
the L/C Issuer and the Swingline Lender may change its address, telecopier or telephone 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 Borrower, the Administrative Agent, the L/C Issuer
and the Swingline Lender. In addition, each Lender agrees to notify the Administrative Agent
from time to time to ensure that the Administrative Agent has on record (1) an effective address,
contact name, telephone number, telecopier number and electronic mail address to which notices
and other communications may be sent and (2) accurate wire instructions for such Lender.
Furthermore, each Public Lender agrees to cause at least one individual at or on behalf of such
Public Lender to at all times have selected the “Private Side Information” or similar designation
on the content declaration screen of the Platform in order to enable such Public Lender or its
delegate, in accordance with such Public Lender’s compliance procedures and applicable Law,
including United States federal and state securities Laws, to make reference to Credit Party
Materials that are not made available through the “Public Side Information” portion of the
Platform and that may contain material non-public information with respect to the Borrower or
its securities for purposes of United States federal or state securities Laws.
(e) Reliance by Administrative Agent, L/C Issuer and Lenders. The
Administrative Agent, the L/C Issuer and the Lenders shall be entitled to rely and act upon any
notices (including telephonic Loan Notices) purportedly given by or on behalf of the Borrower or
any other Credit Party even if (1) 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 (2)
the terms thereof, as understood by the recipient, varied from any confirmation thereof. The
Borrower shall indemnify the Administrative Agent, the 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 Borrower or any other
Credit Party in the absence of gross negligence, bad faith or willful misconduct of such Person,
as determined by a court of competent jurisdiction in a final and non-appealable judgment. 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.
Section 11.03. No Waiver; Cumulative Remedies; Enforcement. No failure by any
Lender, the L/C Issuer, the Swingline Lender or the Administrative Agent to exercise, and no
delay by any such Person in exercising, any right, remedy, power or privilege hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power
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or privilege hereunder or under any other Credit Document (including the imposition of the
Default Rate) 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 Credit Document are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by Law.
Notwithstanding anything to the contrary contained herein or in any other Credit
Document, the authority to enforce rights and remedies hereunder and under the other Credit
Documents against the Credit Parties or any of them shall be vested exclusively in, and all
actions and proceedings at law in connection with such enforcement shall be instituted and
maintained exclusively by, the Administrative Agent in accordance with Section 9.02 for the
benefit of all the Lenders and the L/C Issuer; provided; that the foregoing shall not prohibit (i)
the Administrative Agent from exercising on its own behalf the rights and remedies that inure to
its benefit (solely in its capacity as Administrative Agent) hereunder and under the other Credit
Documents, (ii) the L/C Issuer or the Swingline Lender from exercising the rights and remedies
that inure to their benefit (solely in their capacity as L/C Issuer or Swingline Lender, as the case
may be) hereunder and under the other Credit Documents, (iii) any Lender from exercising setoff
rights in accordance with Section 11.08 (subject to the terms of Section 2.12), or (iv) any Lender
from filing proofs of claim or appearing and filing pleadings on its own behalf during the
pendency of a proceeding relative to any Credit Party under any Debtor Relief Law and provided,
further, that if at any time there is no Person acting as Administrative Agent hereunder and under
the other Credit Documents, then (1) the Required Lenders shall have the rights otherwise
ascribed to the Administrative Agent pursuant to Section 9.02 and (2) in addition to the matters
set forth in clauses (i), (ii) and (iii) of the preceding proviso and subject to Section 2.12, any
Lender may, with the consent of the Required Lenders, enforce any rights and remedies available
to it and as authorized by the Required Lenders.
Section 11.04. Expenses; Indemnity; Damage Waiver.
(a) Costs and Expenses. The Borrower shall pay (1) all reasonable and
documented out-of-pocket expenses incurred by the Administrative Agent, the Collateral Agent
and their respective Affiliates (including the reasonable and documented out-of-pocket fees,
charges and disbursements of one counsel for the Administrative Agent and the Collateral
Agent), in connection with the syndication of the credit facilities provided for herein, the
preparation, negotiation, execution, delivery and administration of this Credit Agreement and the
other Credit Documents or any amendments, modifications or waivers of the provisions hereof or
thereof (whether or not the transactions contemplated thereby shall be consummated), (2) all
reasonable and documented out-of-pocket expenses incurred by the L/C Issuer in connection
with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for
payment thereunder and (3) all reasonable and documented out-of-pocket expenses incurred by
the Administrative Agent, the Collateral Agent, any Lender or the L/C Issuer in connection with
the enforcement or protection of its rights (a) in connection with this Credit Agreement and the
other Credit Documents, including its rights under this Section, or (b) in connection with the
Loans made or Letters of Credit issued hereunder, including all such reasonable and documented
out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of
such Loans or Letters of Credit (provided that with respect the fees and disbursements of
counsel, all such Persons shall be represented by one primary counsel and (x) any special counsel
and local counsel in each relevant jurisdiction retained by the Administrative Agent and (y)
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solely in the case of a conflict of interest, one additional counsel in each relevant jurisdiction to
the affected Person similarly situated, and for each of clauses (i) and (ii) herein, such amounts
shall be limited to those reasonable and documented out-of-pocket fees and actual disbursements
of such counsel).
(b) Indemnification by the Borrower. The Borrower shall indemnify the
Administrative Agent (and any sub-agent thereof), each Arranger, the Collateral Agent, each
Lender and the 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 out-of-pocket expenses (including the
reasonable and documented out-of-pocket fees, charges and disbursements of one counsel for all
Indemnitees), incurred by any Indemnitee or asserted against any Indemnitee by the Borrower,
any other Credit Party or any other Person arising out of, in connection with, or as a result of (i)
the execution, enforcement or delivery of this Credit Agreement, any other Credit 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, the syndication of the credit facilities provided for
herein, or, in the case of the Administrative Agent (and any sub-agent thereof) and its Related
Parties only, the administration of this Credit Agreement and the other Credit Documents, (i) any
Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any
refusal by the 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), (ii) any actual or alleged presence or Release of Hazardous Materials at,
on, under or from any property currently or formerly owned, leased or operated by the Borrower
or any of its Restricted Subsidiaries or any of their respective predecessors, or any
Environmental Liability related in any way to the Borrower or any of its Restricted Subsidiaries,
or any of their respective predecessors, in each case relating to any of the foregoing or (iii) any
actual or prospective claim, litigation, investigation or proceeding relating to any of the
foregoing, whether based on contract, tort or any other theory, whether brought by a third party
or by the Borrower or any other Credit Party, and regardless of whether any Indemnitee is a party
thereto, IN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE
OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY OR SOLE
NEGLIGENCE OF THE INDEMNITEE, nor shall any Indemnitee, Related Party, Credit
Party or any Subsidiary have any liability for any special, punitive, indirect or consequential
damages relating to this Agreement or any other Credit Document or arising out of its activities
in connection herewith or therewith (whether before or after the Closing Date) (other than, in the
case of any Credit Party, in respect of any such damages incurred or paid by an Indemnitee to a
third party, or which are included in a third-party claim); provided that such indemnity shall not,
as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or
related expenses (x) are determined by a court of competent jurisdiction by final and
nonappealable judgment to have resulted from the gross negligence, bad faith or willful
misconduct or material breach of such Person’s obligations under any Credit Document of such
Indemnitee or (y) result from a claim brought by the Borrower or any other Credit Party against
an Indemnitee for material breach of such Indemnitee’s obligations hereunder or under any other
Credit Document, if the Borrower or other such Credit Party has obtained a final and
nonappealable judgment in its favor on such claim as determined by a court of competent
jurisdiction or (z) arise from disputes solely among Indemnitees, and in such event solely to the
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extent that the underlying dispute does not (i) arise as a result of an action, inaction or
representation of, or information provided by or on behalf of, the Credit Parties or their
Subsidiaries or Affiliates as determined by a court of competent jurisdiction by a final and
nonappealable judgment, or (ii) relate to any action of such Indemnitee in its capacity as
Administrative Agent or Arranger; provided, further, that each Indemnitee shall promptly refund
any amount received pursuant to this Section to the extent that there is a final judicial or arbitral
determination that such Indemnitee was not entitled to indemnification rights with respect to
such payment pursuant to the express terms of this Section 11.04. This Section 11.04(b) shall
not apply with respect to Taxes other than any Taxes that represent losses, claims, and damages
arising from any non-Tax claim. Payments under this Section 11.04(b) shall be made by the
Borrower to the Administrative Agent for the benefit of the relevant Indemnitee.
(c) Reimbursement by Lenders. To the extent that the Borrower for any
reason fail to indefeasibly pay any amount required under subsection (a) or (b) of this Section to
be paid by them to the Administrative Agent (or any sub-agent thereof), the Collateral Agent, the
L/C Issuer or any Related Party of any of the foregoing, each Lender severally agrees to pay to
the Administrative Agent (or any such sub-agent), the Collateral Agent, the L/C Issuer or such
Related Party, as the case may be, such Lender’s pro rata share (determined in each case as of the
time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid
amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or
related expense, as the case may be, was incurred by or asserted against the Administrative
Agent (or any such sub-agent), the Collateral Agent, the L/C Issuer in its capacity as such, or
against any Related Party of any of the foregoing acting for the Administrative Agent (or any
such sub-agent), the Collateral Agent or the L/C Issuer in connection with such capacity. The
obligations of the Lenders under this subsection (c) are subject to the provisions of Section
2.11(b).
(d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable Law, no Credit Party shall assert, and hereby waives, 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
Credit Agreement, any other Credit 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 subsection (b) above shall be liable for any
damages arising from the use by unintended recipients of any information or other materials
distributed by it through telecommunications, electronic or other information transmission
systems in connection with this Credit Agreement or the other Credit Documents or the
transactions contemplated hereby or thereby other than for such direct or actual damages
resulting from the gross negligence, bad faith or willful misconduct of such Indemnitee or from a
breach in bad faith of such Indemnitee’s obligations hereunder or under any Credit Document, in
any case, as determined by a final and nonappealable judgment of a court of competent
jurisdiction.
(e) Payments. All amounts due under this Section shall be payable not later
than 10 Business Days after demand therefor.
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(f) Survival. The agreements in this Section shall survive the resignation of
the Administrative Agent, the L/C Issuer and the Swingline Lender, the replacement of any
Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or
discharge of all the other obligations hereunder or under any other Credit Document.
Section 11.05. Payments Set Aside. To the extent that any payment by or on behalf of the
Borrower is made to the Administrative Agent, the L/C Issuer or any Lender, or the
Administrative Agent, the L/C Issuer or any Lender exercises its right of setoff, and such
payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared
to be fraudulent or preferential, set aside or required (including pursuant to any settlement
entered into by the Administrative Agent, the L/C Issuer or such Lender in its discretion) to be
repaid to a trustee, receiver or any other party, in connection with any proceeding under any
Debtor Relief Law or otherwise, then 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 each Lender and the
L/C Issuer severally agrees to pay to the Administrative Agent on demand its applicable share
(without duplication) of any amount so recovered from or repaid by the Administrative Agent,
plus interest thereon from the date of such demand to the date such payment is made at a rate per
annum equal to the applicable Overnight Rate from time to time in effect, in the applicable
currency of such recovery or payment. The obligations of the Lenders and the L/C Issuer under
clause (b) of the preceding sentence shall survive the payment in full of the Obligations and the
termination of this Credit Agreement.
Section 11.06. Successors and Assigns.
(a) Successors and Assigns Generally. The provisions of this Credit
Agreement and the other Credit Documents shall be binding upon and inure to the benefit of the
parties hereto and thereto and their respective successors and assigns permitted hereby, except
that neither the Borrower nor any other Credit Party may assign or otherwise transfer any of their
respective rights or obligations hereunder without the prior written consent of the Administrative
Agent and each Lender and no Lender may assign or otherwise transfer any of its rights or
obligations hereunder except (i) to an Assignee pursuant to an assignment made in accordance
with the provisions of Section 11.06(b) (such an assignee, an “Eligible Assignee”), (ii) by way
of participation in accordance with the provisions of subsection (d) of this Section, or (iii) by
way of pledge or assignment of a security interest subject to the restrictions of subsection (f) of
this Section (and any other attempted assignment or transfer by any party hereto shall be null and
void). Nothing in this Credit Agreement, express or implied, shall be construed to confer upon
any Person (other than the parties hereto, their respective successors and assigns permitted
hereby, Participants to the extent provided in subsection (d) of this Section and, to the extent
expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the L/C
Issuer and the Lenders) any legal or equitable right, remedy or claim under or by reason of this
Credit Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign to one or
more assignees (“Assignees”) all or a portion of its rights and obligations under this Credit
Agreement and the other Credit Documents (including all or a portion of its Commitment and the
Loans (including for purposes of this subsection (b), participations in L/C Obligations and in
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Swingline Loans) at the time owing to it); provided that any such assignment shall be subject to
the following conditions:
(i) Minimum Amounts. (A) In the case of an assignment of the entire
remaining amount of the assigning Lender’s Commitment and the related Loans
at the time owing to it or in the case of an assignment to a Lender, an Affiliate of
a Lender or an Approved Fund, no minimum amount need be assigned and (B) in
any case not described in subsection (b)(i), 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
$5,000,000 and integral multiples thereof (or if less, all of such Lender’s
remaining Loans or Commitments in respect of such Class), in the case of an
assignment of the Revolving Credit Commitments (and the Revolving Credit
Loans relating thereto), and $5,000,000 and integral multiples thereof, in the case
of an assignment of Term Commitments or Term Loans; provided that concurrent
assignments to members of an Assignee Group and concurrent assignments from
members of an Assignee Group 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 Credit Agreement with respect to the Loans or the
Commitment assigned, except that this clause (ii) shall not apply to the Swingline
Lender’s rights and obligations in respect of Swingline Loans;
(iii) Required Consents. No consent shall be required for any
assignment except to the extent required by subsection (b)(i) of this Section and,
in addition:
(A) the consent of the Borrower (such consent not to be
unreasonably withheld, conditioned or delayed) shall be required unless
(1) an Event of Default under Section 9.01(a) or (f) (solely with respect to
the Borrower) has occurred and is continuing at the time of such
assignment or (2) in the case of an assignment of Term Loans, such
assignment is to a Lender, an Affiliate of a Lender or an Approved Fund;
provided that the Borrower shall be deemed to have consented to any such
assignment unless it shall object thereto by written notice to the
Administrative Agent within 10 Business Days after having received
notice thereof;
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(B) the consent of the Administrative Agent (such consent not
to be unreasonably withheld, conditioned or delayed) shall be required for
assignments in respect of (1) the Revolving Credit Commitments (and the
Revolving Credit Loans relating thereto) if such assignment is to a Person
that is not a Lender with a Revolving Credit Commitment (for holding
Revolving Credit Loans), an Affiliate of such Lender or an Approved
Fund with respect to such Lender or (2) 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 Swingline Lender and the L/C Issuer
(such consents not to be unreasonably withheld, conditioned or delayed)
shall be required for any assignment in respect of the Revolving Credit
Commitments (and the Revolving Credit Obligations relating thereto).
(iv) Assignment and Assumption. The parties to each assignment shall
execute and deliver to the Administrative Agent an Assignment and Assumption,
together with a processing and recordation fee in the amount of $3,500 (other than
an assignment from a Lender to one or more of its Affiliates or pursuant to
Section 11.13); provided that the Administrative Agent may, in its sole discretion,
elect to waive such processing and recordation fee in the case of any assignment.
The assignee, if it is not a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire;
(v) No Assignment to Certain Persons. No such assignment shall be
made (A) to the Borrower or any of the Borrower’s Affiliates or Subsidiaries,
except as set forth in Section 11.06(i), (B) to any Defaulting Lender or any of its
Subsidiaries, or any Person who, upon becoming a Lender hereunder, would
constitute any of the foregoing Persons described in this clause (iv), (C) to a
natural person or (D) to any Disqualified Institution; and
(vi) Certain Additional Payments. In connection with any assignment
of rights and obligations of any Defaulting Lender hereunder, no such assignment
shall be effective unless and until, in addition to the other conditions thereto set
forth herein, the parties to the assignment shall make such additional payments to
the Administrative Agent in an aggregate amount sufficient, upon distribution
thereof as appropriate (which may be outright payment, purchases by the assignee
of participations or subparticipations, or other compensating actions, including
funding, with the consent of the Borrower and the Administrative Agent, the
applicable pro rata share of Loans previously requested but not funded by the
Defaulting Lender, to each of which the applicable assignee and assignor hereby
irrevocably consent), to (x) pay and satisfy in full all payment liabilities then
owed by such Defaulting Lender to the Administrative Agent or any Lender
hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate)
its full pro rata share of all Loans and participations in Letters of Credit and
Swingline Loans in accordance with its Aggregate Commitment Percentage.
Notwithstanding the foregoing, in the event that any assignment of rights and
obligations of any Defaulting Lender hereunder shall become effective under
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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 Credit Agreement until such compliance occurs.
Subject to acceptance and recording thereof by the Administrative Agent pursuant
to subsection (c) of this Section, from and after the effective date specified in each
Assignment and Assumption, the Eligible Assignee thereunder shall be a party to this
Credit Agreement and, to the extent of the interest assigned by such Assignment and
Assumption, have the rights and obligations of a Lender under this Credit 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 Credit
Agreement (and, in the case of an Assignment and Assumption covering all of the
assigning Lender’s rights and obligations under this Credit 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 Borrower (at its expense) shall
execute and deliver a Note to the assignee Lender. Any assignment or transfer by a
Lender of rights or obligations under this Credit Agreement that does not comply with
this subsection shall be treated for purposes of this Credit Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with subsection (d)
of this Section.
(c) Register. The Administrative Agent, acting solely for this purpose as an
agent of the Borrower (and such agency being solely for tax purposes), shall maintain at the
Administrative Agent’s Office in the United States 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 of the Loans and L/C Obligations owing to, each
Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the
Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent
and the Lenders may treat each Person whose name is recorded in the Register pursuant to the
terms hereof as a Lender and the owner of the amounts owing to it under the Credit Documents
as reflected in the Register for all purposes of the Credit Documents, notwithstanding notice to
the contrary. In addition, the Administrative Agent shall maintain on the Register information
regarding the designation, and revocation of designation, of any Lender as a Defaulting Lender.
The Register shall be available for inspection by any of the Borrower, the L/C Issuer and the
Lenders at any reasonable time and from time to time upon reasonable prior notice.
(d) Participations. Any Lender may at any time (without notice to, or the
consent of, any Person) sell participations to any Person (other than a natural person, a
Disqualified Institution, a Defaulting Lender or the Borrower or the Borrower’s Affiliates or
Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or
obligations under this Credit Agreement (including all or a portion of its Commitment and/or the
Loans (including such Lender’s participations in L/C Obligations and/or Swingline Loans)
owing to it); provided that (i) such Lender’s obligations under this Credit Agreement shall
remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations and (iii) the Borrower, the Administrative Agent, the
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Lenders and the L/C Issuer shall continue to deal solely and directly with such Lender in
connection with such Lender’s rights and obligations under this Credit 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 Credit Agreement and to
approve any amendment, modification or waiver of any provision of this Credit 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
the second proviso of Section 11.01 that affects such Participant. Subject to subsection (e) of
this Section, the Borrower 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 subsection (b) of this Section; provided that such Participant agrees to be
subject to the provisions of Sections 3.06 as if it were an assignee under paragraph (b) of this
Section. 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 that such Participant agrees to be subject to
Section 2.12 as though it were a Lender.
(e) Limitations on Participant Rights. A Participant shall not be entitled to
receive any greater payment under Section 3.01 or 3.04 than the applicable Lender would have
been entitled to receive with respect to the participation sold to such Participant, unless the sale
of the participation to such Participant is made with the Borrower’s prior written consent. A
Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits
of Section 3.01 unless the Borrower is notified of the participation sold to such Participant and
such Participant agrees, for the benefit of the Borrower, to comply with Section 3.01(e) as
though it were a Lender.
Each Lender that sells a participation shall, acting solely for this purpose as an agent of
the Borrower, maintain a register on which it enters the name and address of each Participant and
the principal amounts (and stated interest) of each Participant’s interest in the Loans or other
obligations under the Credit 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 of its other Obligations under any Credit Document)
to any Person except to the extent that such disclosure is necessary to establish that such
Commitment, Loan, Letter of Credit or other Obligation is in registered form under Section
5f.103-1(c) of the U.S. Treasury Regulations, or is otherwise required thereunder. The entries in
the Participant Register shall be conclusive absent manifest error, and such Lender shall treat
each Person whose name is recorded in the Participant Register as the owner of such
participation for all purposes of this Agreement notwithstanding any notice to the contrary. For
the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall
have no responsibility for maintaining a Participant Register.
(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 Credit Agreement (including under its
Note(s), if any) to secure obligations of such Lender, including any pledge or assignment to
secure obligations to a Federal Reserve Bank or other central bank having jurisdiction over such
Lender; provided that no such pledge or assignment shall release such Lender from any of its
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obligations hereunder or substitute any such pledgee or assignee for such Lender as a party
hereto.
(g) [Reserved].
(h) Resignation as L/C Issuer or Swingline Lender after Assignment.
Notwithstanding anything to the contrary contained herein, if at any time Bank of America
assigns all of its Revolving Credit Commitment and Revolving Credit Loans pursuant to
subsection (b) above. Bank of America may, (i) upon 30 days’ notice to the Borrower and the
Revolving Credit Lenders, resign as the L/C Issuer and/or (ii) upon 30 days’ notice to the
Borrower, resign as the Swingline Lender. In the event of any such resignation as the L/C Issuer
or the Swingline Lender, the Borrower shall be entitled to appoint from among the Revolving
Credit Lenders, a successor L/C Issuer or Swingline Lender hereunder; provided that no failure
by the Borrower to appoint any such successor shall affect the resignation of Bank of America as
the L/C Issuer or the Swingline Lender, as the case may be. If Bank of America resigns as the
L/C Issuer, it shall retain all the rights, powers, privileges and duties of the L/C Issuer hereunder
with respect to all Letters of Credit outstanding as of the effective date of its resignation as the
L/C Issuer and all L/C Obligations with respect thereto (including the right to require the
Revolving Credit Lenders to make Base Rate Loans or fund risk participations in L/C
Unreimbursed Amounts pursuant to Section 2.03(c)). If Bank of America resigns as the
Swingline Lender, it shall retain all the rights of the Swingline Lender provided for hereunder
with respect to Swingline Loans made by it and outstanding as of the effective date of such
resignation, including the right to require the Revolving Credit Lenders to make Base Rate Loans
or fund risk participations in outstanding Swingline Loans pursuant to Section 2.04(c). Upon the
appointment of a successor L/C Issuer and/or Swingline Lender, (a) such successor shall succeed
to and become vested with all of the rights, powers, privileges and duties of the retiring L/C
Issuer or Swingline Lender, as the case may be, and (b) the successor L/C Issuer shall issue
letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such
succession or make other arrangements reasonable satisfactory to Bank of America to effectively
assume the obligations of Bank of America with respect to such Letters of Credit.
(i) Assignments to the Borrower and its Subsidiaries. Notwithstanding
anything to the contrary contained in this Section 11.06 or any other provision of this
Agreement, so long as no Event of Default has occurred and is continuing or would result
therefrom, each Term Lender shall have the right at any time to sell, assign or transfer all or a
portion of the Term Loans owing to it to the Borrower or any of its Subsidiaries on a non-pro
rata basis, subject to the following limitations:
(i) Such sale, assignment or transfer shall be pursuant to one or more
modified Dutch auctions conducted by the Borrower (each, an “Auction”) to
repurchase all or any portion of the Term Loans; provided that (A) notice of and
the option to participate in the Auction shall be provided to all Term Lenders and
(B) the Auction shall be conducted pursuant to such procedures as the Auction
Manager may establish, which are consistent with this Section 11.06(i) and the
Auction Procedures and are otherwise reasonably acceptable to the Borrower, the
Auction Manager and the Administrative Agent;
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(ii) With respect to all repurchases made by the Borrower or any of its
Subsidiaries pursuant to this Section 11.06(i), (A) the Borrower shall (x) represent
and warrant to the Term Lenders that, as of the launch date of the related Auction
and the effective date of any such repurchase, it does not possess material non-
public information with respect to the Borrower and its Subsidiaries that has not
been disclosed to the Administrative Agent and the non-Public Lenders or (y)
make a statement that it cannot make such representation and warranty, (B) the
Borrower or any of its Subsidiaries shall not use the proceeds of any Revolving
Credit Loans to repurchase such Term Loans and (C) the assigning Term Lender
and the Borrower or its applicable Subsidiary shall execute and deliver to the
Auction Manager an Assignment and Assumption with respect to such
repurchase; and
(iii) Following a repurchase by the Borrower or any of its Subsidiaries
pursuant to this Section 11.06(i), the Term Loans so repurchased shall, without
further action by any Person, be deemed canceled and no longer outstanding (and
may not be resold by the Borrower or any of its Subsidiaries) for all purposes of
this Credit Agreement and all other Credit Documents, including, but not limited
to (A) the making of, or the application of, any payments to the Term Lenders
under this Credit Agreement or any other Credit Document, (B) the making of any
request, demand, authorization, direction, notice, consent or waiver under this
Credit Agreement or any other Credit Document or (C) the determination of the
Required Lenders or the Required Term Lenders, or for any similar or related
purpose, under this Credit Agreement or any other Credit Document. If any Term
Loan is purchased and canceled in accordance with this Section 11.06(i), all such
prepayments shall be applied to the remaining scheduled installments of principal
of the relevant Class of Term Loans pursuant to Section 2.05(a) on a pro rata basis
across such installments. In connection with any Term Loans repurchased and
canceled pursuant to this Section 11.06(i), the Administrative Agent is authorized
to make appropriate entries in the Register to reflect any such cancellation.
(j) If any assignment is made to any Disqualified Institution without the
Borrower’s prior consent in violation of clause (b)(v) above, the Borrower may, at its sole
expense and effort, upon notice to the applicable Disqualified Institution and the Administrative
Agent, notwithstanding anything to the contrary in Section 2.07 or Section 2.12, (A) terminate
any Revolving Credit Commitment of such Disqualified Institution and repay all Obligations of
the Borrower owing to such Disqualified Institution in connection with such Revolving Credit
Commitment, (B) in the case of outstanding Term Loans held by Disqualified Institutions,
prepay such Term Loan by paying the lesser of (x) the principal amount thereof and (y) the
amount that such Disqualified Institution paid to acquire such Term Loans, in each case plus
accrued interest, accrued fees and all other amounts (other than principal amounts) payable to it
hereunder and under the other Credit Documents and/or (C) require such Disqualified Institution
to assign and delegate, without recourse (in accordance with and subject to the restrictions
contained in this Section 11.06), all of its interest, rights and obligations under this Agreement
and related Credit Documents to an Eligible Assignee that shall assume such obligations at the
lesser of (x) the principal amount thereof and (y) the amount that such Disqualified Institution
paid to acquire such interests, rights and obligations, in each case plus accrued interest, accrued
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fees and all other amounts (other than principal amounts) payable to it hereunder and other the
other Credit Documents; provided that (i) such assignment does not conflict with applicable
Laws and (ii) in the case of clause (B), the Borrower shall not use the proceeds from any Loans
to prepay Term Loans held by Disqualified Institutions.
(k) Notwithstanding anything to the contrary contained in this Agreement, the
Disqualified Institutions (A) will not (x) have the right to receive information, reports or other
materials provided to Lenders by the Borrower, the Administrative Agent or any other Lender,
(y) attend or participate in meetings attended by the Lenders and the Administrative Agent, or (z)
access any electronic site established for the Lenders or confidential communications from
counsel to or financial advisors of the Administrative Agent or the Lenders and (B) (x) for
purposes of any consent to any amendment, waiver or modification of any action under, and for
the purpose of any direction to the Administrative Agent or any Lender to undertake any action
(or refrain from taking any action) under this Agreement or any other Credit Document, each
Disqualified Institution will be deemed to have consented in the same proportion as the Lenders
that are not Disqualified Institutions consented to such matter, and (y) for purposes of voting on
any plan of reorganization or plan of liquidation pursuant to any Debtor Relief Laws (a
“Reorganization Plan”) each Disqualified Institution party hereto hereby agrees (1) not to vote
on such Reorganization Plan, (2) if such Disqualified Institution does vote on such
Reorganization Plan notwithstanding the restriction in the foregoing clause (1), such vote will be
deemed not to be in good faith and shall be “designated” pursuant to Section 1126(e) of the
Bankruptcy Code (or any similar provision in any other Debtor Relief Laws), and such vote shall
not be counted in determining whether the applicable class has accepted or rejected such
Reorganization Plan in accordance with Section 1126(c) of the Bankruptcy Code (or any similar
provision in any other Debtor Relief Laws) and (3) not to contest any request by any party for a
determination by the Bankruptcy Court (or other applicable court of competent jurisdiction)
effectuating the foregoing clause (2).
Section 11.07. Treatment of Certain Information; Confidentiality. Each of the
Administrative Agent, the Lenders and the L/C Issuer agrees to maintain the confidentiality of
the Information (as defined below), except that Information may be disclosed to its Affiliates and
to its and its Affiliates’ respective partners, directors, officers, employees, agents, trustees,
advisors and representatives (it being understood that the Persons to whom such disclosure is
made will be informed of the confidential nature of such Information and instructed to keep such
Information confidential), to the extent requested by any regulatory authority purporting to have
jurisdiction over it (including any self-regulatory authority), to the extent required by applicable
Laws or regulations or by any subpoena or similar legal process (in which case such Person, to
the extent practicable and so long as it is permitted by Law and except in connection with any
order or request as part of a regulatory examination or audit, agrees to inform the Borrower
promptly thereof), to any other party hereto, in connection with the exercise of any remedies
hereunder or under any other Credit Document or any action or proceeding relating to this Credit
Agreement or any other Credit Document or the enforcement of rights hereunder or thereunder,
subject to an agreement containing provisions substantially the same as those of this Section, to
(i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Credit Agreement or any Eligible Assignee invited to become a
Lender pursuant to Section 11.06(b), (ii) any actual or prospective counterparty (or its advisors)
to any swap or derivative transaction relating to the Borrower and its obligations, with the
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consent of the Borrower or to the extent such Information, (iii) becomes publicly available other
than as a result of a breach of this Section, (iv) to the extent that such information is
independently developed by the Administrative Agent, a Lender, L/C Issuer or such parties
Affiliates, in each case, so long as not based on information obtained in a manner that would
otherwise violate this provision, (v) becomes available to the Administrative Agent, any Lender,
the L/C Issuer or any of their respective Affiliates on a nonconfidential basis from a source other
than the Borrower or (vi) with the Borrower’s consent.
For purposes of this Section, “Information” means all information received from the
Credit Parties or their Subsidiaries or Affiliates relating to the Credit Parties or their Subsidiaries
or Affiliates or any of their respective businesses, other than any such information that is
available to the Administrative Agent, any Lender or the L/C Issuer on a nonconfidential basis
prior to disclosure by the Credit Parties or their Subsidiaries or Affiliates; provided that all
information received after the Closing Date from the Borrower or any of its Subsidiaries shall be
deemed confidential unless such information is clearly identified at the time of delivery as not
being confidential. Any Person required to maintain the confidentiality of Information as
provided in this Section 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 of the Administrative Agent, the Lenders and the L/C Issuer acknowledges that (a)
the Information may include material non-public information concerning the Credit Parties or
their Subsidiaries or Affiliates, as the case may be, (b) it has developed compliance procedures
regarding the use of material non-public information and (c) it will handle such material non-
public information in accordance with applicable Law, including federal and state securities
Laws.
Section 11.08. Right of Setoff. If an Event of Default shall have occurred and be
continuing, each Lender, the L/C Issuer and each of their respective Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by applicable Law,
to set off and apply any and all deposits (general or special, time or demand, provisional or final,
in whatever currency) at any time held and other obligations (in whatever currency) at any time
owing by such Lender, the L/C Issuer or any such Affiliate to or for the credit or the account of
the Borrower or any other Credit Party against any and all of the obligations of the Borrower or
such Credit Party now or hereafter existing under this Credit Agreement or any other Credit
Document to such Lender or the L/C Issuer, irrespective of whether or not the Lender or the L/C
Issuer shall have made any demand under this Credit Agreement or any other Credit Document
and although such obligations of the Borrower or such Credit Party may be contingent or
unmatured or are owed to a branch or office of such Lender or the L/C Issuer different from the
branch or office holding such deposit or obligated on such indebtedness; provided that in the
event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off
shall be paid over immediately to the Administrative Agent for further application in accordance
with the provisions of Section 2.17 and, pending such payment, shall be segregated by such
Defaulting Lender from its other funds and deemed held in trust for the benefit of the
Administrative Agent and the Lenders, and (y) the Defaulting Lender shall provide promptly to
the Administrative Agent a statement describing in reasonable detail the Obligations owing to
such Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender,
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the L/C Issuer and their respective Affiliates under this Section are in addition to other rights and
remedies (including other rights of setoff) that such Lender, the L/C Issuer or their respective
Affiliates may have. Each Lender and the L/C Issuer agrees to notify the Borrower and the
Administrative Agent promptly after any such setoff and application; provided that the failure to
give such notice shall not affect the validity of such setoff and application.
Section 11.09. Interest Rate Limitation. Notwithstanding anything to the contrary
contained in any Credit Document, the interest paid or agreed to be paid under the Credit
Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable
Law (the “Maximum Rate”). If the Administrative Agent or any Lender shall receive interest in
an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal
of the Loans or, if it exceeds such unpaid principal, refunded to the Borrower. In determining
whether the interest contracted for, charged, or received by the Administrative Agent or a Lender
exceeds the Maximum Rate, such Person may, to the extent permitted by applicable Law,
characterize any payment that is not principal as an expense, fee, or premium rather than interest,
exclude voluntary prepayments and the effects thereof, and amortize, prorate, allocate, and
spread in equal or unequal parts the total amount of interest throughout the contemplated term of
the Obligations hereunder.
Section 11.10. Counterparts; Integration. This Credit Agreement may be executed in
counterparts (and by different parties hereto in different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a single contract.
This Credit Agreement and the other Credit Documents constitute the entire contract among the
parties relating to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Delivery of an executed
counterpart of a signature page of this Credit Agreement by telecopy or other electronic imaging
means shall be effective as delivery of a manually executed counterpart of this Credit
Agreement.
Section 11.11. Survival of Representations and Warranties. All representations and
warranties made hereunder and in any other Credit 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 or Event
of 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 (other than any
Obligations under any Swap Contract Obligation, Treasury Management Obligation or
contingent indemnity obligations, in any such case not then due and payable) or any Letter of
Credit shall remain outstanding (unless the such Letter of Credit has been Cash Collateralized or
back-stopped by a letter of credit in form, amount and substance reasonably satisfactory to the
Administrative Agent or a deemed reissuance under another facility or as to which other
arrangements reasonable satisfactory to the Administrative Agent and the L/C Issuer shall have
been made).
Section 11.12. Severability. If any provision of this Credit Agreement or the other Credit
Documents is held to be illegal, invalid or unenforceable, the legality, validity and enforceability
of the remaining provisions of this Credit Agreement and the other Credit Documents shall not
181
be affected or impaired thereby and the parties shall endeavor in good faith negotiations to
replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect
of which comes as close as possible to that of the illegal, invalid or unenforceable provisions.
The invalidity of a provision in a particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. Without limiting the foregoing
provisions of this Section 11.12, if and to the extent that the enforceability of any provisions in
this Credit Agreement relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as
determined in good faith by the Administrative Agent, the L/C Issuer or the Swingline Lender, as
applicable, then such provisions shall be deemed to be in effect only to the extent not so limited.
Section 11.13. Replacement of Lenders. If (a) any Lender requests compensation under
Section 3.04, (b) the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01, (c) any Lender
gives a notice pursuant to Section 3.02, (d) any Lender does not consent to a proposed change,
waiver, discharge or termination (a “Non-Consenting Lender”) with respect to any Credit
Document requiring the approval of all the Lenders or of all the Lenders directly affected thereby
that has been approved by the applicable Required Facility Lenders or, to the extent applicable,
the Required Lenders, or (e) any Lender is a Defaulting Lender, then the Borrower may, at its
sole expense and effort, upon notice to such Lender and the Administrative Agent, require such
Lender to assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in, and consents required by, Section 11.06), (i) all of such Lender’s
interests, rights and obligations under this Credit Agreement and the related Credit Documents,
or (ii) solely in the case of a Non-Consenting Lender, all of such Lender’s Class of Loans with
respect to which such Lender is a Non-Consenting Lender, in each case to an assignee that shall
assume such obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided that:
(i) the Borrower shall have paid to the Administrative Agent the
assignment fee specified in Section 11.06(b)(iv);
(ii) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans and L/C Advances, accrued interest thereon,
accrued fees and all other amounts payable to it hereunder and under the other
Credit Documents (including any amounts under Section 3.05) that is to be
assigned hereunder from the assignee (to the extent of such outstanding principal
and accrued interest and fees) or the Borrower (in the case of all other amounts);
(iii) in the case of any such assignment resulting from a claim for
compensation under Section 3.04 or payments required to be made pursuant to
Section 3.01, such assignment will result in a reduction in such compensation or
payments thereafter;
(iv) such assignment does not conflict with applicable Law;
(v) in the case of any such assignment resulting from a Non-
Consenting Lender’s failure to consent to a proposed change, waiver, discharge or
termination with respect to any Credit Document, the applicable assignee
consents to the proposed change, waiver, discharge or termination; and
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(vi) the failure by any Lender described in clauses (a) – (e) above to
execute and deliver an Assignment and Assumption shall not impair the validity
of the removal of such Lender, and the assignment of such Lender’s
Commitments and outstanding Loans and participations in L/C Obligations and
Swingline Loans pursuant to this Section 11.13 shall nevertheless be effective
without the execution by such Lender of an Assignment and Assumption.
A Lender shall not be required to make any such assignment or delegation if, prior
thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the
Borrower to require such assignment and delegation cease to apply.
Section 11.14. Governing Law; Jurisdiction; Etc.
(a) GOVERNING LAW. THIS CREDIT AGREEMENT AND ANY CLAIM,
CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS CREDIT
AGREEMENT (INCLUDING ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT
LAW ARISING OUT OF THE SUBJECT MATTER HEREOF) SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
YORK.
(b) SUBMISSION TO JURISDICTION. EACH PARTY HERETO
IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS
PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF
NEW YORK SITTING IN THE BOROUGH OF MANHATTAN AND OF THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF SUCH STATE AND
ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS CREDIT AGREEMENT OR ANY OTHER
CREDIT DOCUMENT, AND, SUBJECT TO THE LAST SENTENCE OF THIS CLAUSE (B),
EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES
THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING SHALL BE
BROUGHT, HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL
COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN
ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY
OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS CREDIT AGREEMENT OR
IN ANY OTHER CREDIT DOCUMENT SHALL AFFECT ANY RIGHT THAT THE
ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE
HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS CREDIT
AGREEMENT OR ANY OTHER CREDIT DOCUMENT AGAINST THE BORROWER OR
ANY OTHER CREDIT PARTY OR ITS PROPERTIES IN THE COURTS OF ANY
JURISDICTION.
(c) WAIVER OF VENUE. EACH PARTY HERETO IRREVOCABLY AND
UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO
THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS CREDIT AGREEMENT OR ANY OTHER CREDIT DOCUMENT IN
183
ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF THE
PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM
TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
(d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY
CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN
SECTION 11.02. NOTHING IN THIS CREDIT AGREEMENT WILL AFFECT THE RIGHT
OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED
BY APPLICABLE LAW.
Section 11.15. Waiver of Jury Trial. EACH PARTY HERETO HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
CREDIT AGREEMENT OR ANY OTHER CREDIT 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 CREDIT AGREEMENT AND THE OTHER
CREDIT DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
Section 11.16. USA Patriot Act Notice. Each Lender that is subject to the Act (as
hereinafter defined) and the Administrative Agent (for itself and not on behalf of any Lender)
hereby notifies the Credit Parties that pursuant to the requirements of the USA Patriot Act (Title
III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”), it is required to obtain,
verify and record information that identifies the Credit Parties, which information includes the
name and address of the Credit Parties and other information that will allow such Lender or the
Administrative Agent, as applicable, to identify the Credit Parties in accordance with the Act.
The Credit Parties shall, promptly following a request by the Administrative Agent or any
Lender, provide all reasonable documentation and other information that the Administrative
Agent or such Lender requests in order to comply with its ongoing obligations under applicable
“know your customer” and anti-money laundering rules and regulations, including the Act.
Section 11.17. Termination. Notwithstanding any other provision to the contrary, upon
termination of the commitments hereunder and payment in full of all Obligations (other than (i)
contingent indemnification obligations as to which no claim has been asserted and (ii)
Obligations described in clauses (b) and (c) of the definition thereof) and the expiration or
termination of all Letters of Credit (other than Letters of Credit as to which other arrangements
reasonable satisfactory to the Administrative Agent and the L/C Issuer shall have been made),
the Collateral Documents and the security interests created thereby shall terminate, all rights in
the Collateral shall revert to the applicable Credit Party and the Administrative Agent and the
Collateral Agent, at the request and sole expense of the Borrower, will execute and deliver such
documents as the Borrower shall reasonably request to evidence such termination; provided that
184
if an Event of Default shall have occurred and is continuing, no such termination will be
effective unless arrangements reasonable satisfactory to the holders of the Swap Contract
Obligations and Treasury Management Obligations shall have been made, and will not affect
provisions which expressly survive termination.
Section 11.18. No Advisory or Fiduciary Responsibility. In connection with all aspects of
each transaction contemplated hereby (including in connection with any amendment, waiver or
other modification hereof or of any other Credit Document), the Borrower and each other Credit
Party acknowledge and agree, and acknowledge their respective Affiliates’ understanding, that:
(i) the arranging and other services regarding this Credit Agreement provided by the
Administrative Agent and the Arrangers are arm’s-length commercial transactions between the
Borrower, each other Credit Party and their respective Affiliates, on the one hand, and the
Administrative Agent and the Arrangers, on the other hand, (ii) each of the Borrower and the
other Credit Parties has consulted its own legal, accounting, regulatory and tax advisors to the
extent it has deemed appropriate, and (iii) each of the Borrower and each other Credit Party is
capable of evaluating, and understands and accepts, the terms, risks and conditions of the
transactions contemplated hereby and by the other Credit Documents; the Administrative Agent,
each Arranger and each Lender each is and has been acting solely as a principal and, except as
expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as
an advisor, agent or fiduciary for the Borrower, any other Credit Party or any of their respective
Affiliates, or any other Person and the Administrative Agent, the Arrangers and the Lenders shall
not have any obligation to the Borrower, any other Credit Party or any of their respective
Affiliates with respect to the transactions contemplated hereby except those obligations expressly
set forth herein and in the other Credit Documents; and the Administrative Agent, the Arrangers
and the Lenders and their respective Affiliates may be engaged in a broad range of transactions
that involve interests that differ from those of the Borrower, the other Credit Parties and their
respective Affiliates, and the Administrative Agent, the Arrangers and the Lenders shall not have
any obligation to disclose any of such interests to the Borrower, any other Credit Party or any of
their respective Affiliates. To the fullest extent permitted by Law, each of the Borrower and the
other Credit Parties hereby waives and releases any claims that it may have against the
Administrative Agent, the Arrangers and the Lenders with respect to any breach or alleged
breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated
hereby.
Section 11.19. Electronic Execution. The words “execution,” “signed,” “signature,” and
words of like import in in connection with this Agreement and the transaction contemplated
hereby (including, without limitation any Assignment and Assumption, amendment or other
modifications, Loan Notices, waivers and consent) 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; provided that notwithstanding anything contained
herein to the contrary the Administrative Agent is under no obligation to agree to accept
electronic signatures in any form or in any format unless expressly agreed to by the
Administrative Agent pursuant to procedures approved by it.
185
Section 11.20. Acknowledgment and Consent to Bail-In of EEA Financial Institutions.
Notwithstanding anything to the contrary in any Credit 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 Credit 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
entity, or a bridge institution that may be issued to it or otherwise conferred on it,
and that such shares or other instruments of ownership will be accepted by it in
lieu of any rights with respect to any such liability under this Agreement or any
other Credit 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.
Section 11.21. Judgment Currency. If, for the purposes of obtaining judgment in any
court, it is necessary to convert a sum due hereunder or any other Credit Document in one
currency into another currency, the rate of exchange used shall be that at which in accordance
with normal banking procedures the Administrative Agent could purchase the first currency with
such other currency on the Business Day preceding that on which final judgment is given. The
obligation of each Credit Party in respect of any such sum due from it to the Administrative
Agent or any Lender hereunder or under the other Credit Documents shall, notwithstanding any
judgment in a currency (the “Judgment Currency”) other than that in which such sum is
denominated in accordance with the applicable provisions of this Agreement (the “Agreement
Currency”), be discharged only to the extent that on the Business Day following receipt by the
Administrative Agent or such Lender, as the case may be, of any sum adjudged to be so due in
the Judgment Currency, the Administrative Agent or such Lender, as the case may be, may in
accordance with normal banking procedures purchase the Agreement Currency with the
Judgment Currency. If the amount of the Agreement Currency so purchased is less than the sum
originally due to the Administrative Agent or any Lender from any Credit Party in the
Agreement Currency, such Credit Party agrees, as a separate obligation and notwithstanding any
such judgment, to indemnify the Administrative Agent or such Lender, as the case may be,
against such loss. If the amount of the Agreement Currency so purchased is greater than the sum
originally due to the Administrative Agent or any Lender in such currency, the Administrative
Agent or such Lender, as the case may be, agrees to return the amount of any excess to such
Credit Party (or to any other Person who may be entitled thereto under applicable Law).
186
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Credit Agreement to be
duly executed as of the date first above written.
Borrower
MERCURY SYSTEMS, INC.
By:___________________________________
Name:
Title:
Guarantors
MERCURY DEFENSE SYSTEMS, INC.
By:
Name: Gerald M. Haines II
Title: Vice President, Chief Financial
Officer, Treasurer, and Secretary
MERCURY CORP. – SECURITY SOLUTIONS
By:
Name: Gerald M. Haines II
Title: Executive Vice President, Chief
Financial Officer, Treasurer, and
Secretary
ARXAN RESEARCH, INC.
By:
Name: Gerald M. Haines II
Title: Executive Vice President, Chief
Financial Officer, Treasurer, and
Secretary
DELTA MICROWAVE, LLC
By:
Name: Gerald M. Haines II
Title: Executive Vice President, Chief
Financial Officer, Treasurer, and
Secretary
[Credit Agreement]
Administrative Agent
BANK OF AMERICA, N.A.,
as Administrative Agent and Collateral Agent
By: ___________________________________
Name:
Title:
[Credit Agreement]
BANK OF AMERICA, N.A.,
as L/C Issuer and Swingline Lender
By: ___________________________________
Name:
Title:
[Credit Agreement]
Lenders
[LENDERS],
By: ___________________________________
Name:
Title
SCHEDULE 2.01
Lenders and Commitments
Revolving Credit Lender
Revolving Credit Commitment Aggregate Commitment
Percentage
Bank of America, N.A. $57,500,000.00 14.375000000%
Citibank, N.A. $52,500,000.00 13.125000000%
JPMorgan Chase Bank, N.A. $52,500,000.00 13.125000000%
Key Bank National Association $52,500,000.00 13.125000000%
SunTrust Bank $52,500,000.00 13.125000000%
U.S. Bank National Association $37,500,000.00 9.375000000%
Wells Fargo Bank, N.A. $37,500,000.00 9.375000000%
TD Bank, N.A. $37,500,000.00 9.375000000%
Santander Bank, N.A. $20,000,000.00 5.000000000%
TOTAL:
$400,000,000.00
100.000000000%
50 Minuteman Road, Andover, Massachusetts 01810 U.S.A. • +1 978.256.1300 • www.mrcy.com • twitter: @MRCY
FOR IMMEDIATE RELEASE News Release
Mercury Systems Expands Revolving Credit Facility, Retires Term Loan A
ANDOVER, Mass. June 27, 2017 Mercury Systems, Inc. (NASDAQ: MRCY, www.mrcy.com)
announced that it has amended its existing revolving credit facility (“Revolving Credit Facility”),
increasing and extending the facility into a $400 million, 5-year revolver expiring in June 2022. In
connection with the amendment, Mercury also repaid the remaining principal on its existing term loan
using cash on hand. The Revolving Credit Facility remained undrawn at the closing of the refinancing,
other than for outstanding letters of credit.
“We are very pleased with the success of this transaction,” said Gerry Haines, Chief Financial Officer of
Mercury Systems. “The upsized Revolving Credit Facility provides us with increased borrowing
capacity, on improved terms including a lower cost of capital. It also provides us with much greater
agility and flexibility, supporting our ongoing efforts to drive growth through a combination of organic
investment and additional business acquisitions. We appreciate the strong financial support from our
banking partners.”
Additional information regarding the terms of the amended senior secured credit facility are contained in
Mercury’s Form 8-K filed today with the Securities and Exchange Commission (SEC).
For more information, visit www.mrcy.com or contact Mercury at (866) 627-6951 or info@mrcy.com.
Mercury Systems – Innovation That Matters™
Mercury Systems (NASDAQ:MRCY) is a leading commercial provider of secure sensor and mission processing subsystems.
Optimized for customer and mission success, Mercury’s solutions power a wide variety of critical defense and intelligence
programs. Headquartered in Andover, Mass., Mercury is pioneering a next-generation defense electronics business model
specifically designed to meet the industry’s current and emerging technology needs. To learn more, visit www.mrcy.com.
Forward-Looking Safe Harbor Statement
This press release contains certain forward-looking statements, as that term is defined in the Private Securities
Litigation Reform Act of 1995, including those relating to the financing transaction described herein. You can identify
these statements by the use of the words “may,” “will,” “could,” “should,” “would,” “plans,” “expects,” “anticipates,”
“continue,” “estimate,” “project,” “intend,” “likely,” “forecast,” “probable,” “potential,” and similar expressions. These
forward-looking statements involve risks and uncertainties that could cause actual results to differ materially from those
projected or anticipated. Such risks and uncertainties include, but are not limited to, continued funding of defense
programs, the timing and amounts of such funding, general economic and business conditions, including unforeseen
weakness in the Company’s markets, effects of continued geopolitical unrest and regional conflicts, competition,
changes in technology and methods of marketing, delays in completing engineering and manufacturing programs,
changes in customer order patterns, changes in product mix, continued success in technological advances and delivering
technological innovations, changes in, or in the U.S. Government’s interpretation of, federal export control or
procurement rules and regulations, market acceptance of the Company's products, shortages in components, production
delays or unanticipated expenses due to performance quality issues with outsourced components, inability to fully
realize the expected benefits from acquisitions and restructurings, or delays in realizing such benefits, challenges in
integrating acquired businesses and achieving anticipated synergies, increases in interest rates, changes to export
regulations, increases in tax rates, changes to generally accepted accounting principles, difficulties in retaining key
employees and customers, unanticipated costs under fixed-price service and system integration engagements, and
Mercury Systems Expands Revolving Credit Facility, Retires Term Loan A,
Page 2
50 Minuteman Road, Andover, Massachusetts 01810 U.S.A. • +1 978.256.1300 • www.mrcy.com • twitter: @MRCY
various other factors beyond our control. These risks and uncertainties also include such additional risk factors as are
discussed in the Company's filings with the U.S. Securities and Exchange Commission, including its Annual Report on
Form 10-K for the fiscal year ended June 30, 2016. The Company cautions readers not to place undue reliance upon any
such forward-looking statements, which speak only as of the date made. The Company undertakes no obligation to
update any forward-looking statement to reflect events or circumstances after the date on which such statement is made.
# # #
Contact:
Gerry Haines, CFO
Mercury Systems, Inc.
978-967-1990
Mercury Systems and Innovation That Matters are trademarks of Mercury Systems, Inc. Other product and company names mentioned may be trademarks
and/or registered trademarks of their respective holders.