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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D. C.  20549

 

FORM 8-K

 

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(D) OF THE

SECURITIES EXCHANGE ACT OF 1934

 

Date of Report (Date of earliest event reported): September 22, 2020

 

OMNICELL, INC.

(Exact name of registrant as specified in its charter)

 

Delaware   000-33043   94-3166458
(State or other jurisdiction of
incorporation or organization)
 

(Commission File

Number)

 

(IRS Employer

Identification Number)

 

590 East Middlefield Road

Mountain View, CA 94043

(Address of principal executive offices, including zip code)

 

(650) 251-6100

(Registrant’s telephone number, including area code)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class  Trading Symbol  Name of each exchange on which registered
Common Stock, $0.001 par value  OMCL  Nasdaq Global Select Market

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b- 2 of this chapter).

 

Emerging growth company ¨

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.  ¨

 

 

 

 

 

Item 1.01 Entry into a Material Definitive Agreement.

 

In connection with the Offering (as defined below), on September 22, 2020, Omnicell, Inc. (the “Company”), as borrower, entered into an amendment (the “Amendment”) to the Amended and Restated Credit Agreement, dated as of November 15, 2019, by and among the Company, the lenders from time to time thereto and Wells Fargo Bank, National Association as administrative agent (as amended by the Amendment, the “Amended Credit Agreement”). Pursuant to the Amendment, the Amended Credit Agreement, among other changes, permits the issuance of the Notes (as defined below) and the purchase of the convertible note hedge transactions described in the press release attached hereto as Exhibit 99.1, expands our flexibility to repurchase our common stock and make other restricted payments and replaces the total net leverage covenant with a new secured net leverage covenant that requires us to maintain consolidated secured net leverage ratio not to exceed 3.50:1 for the calendar quarters ending September 30, 2020, December 31, 2020 and March 31, 2021 and 3.00:1 for the calendar quarters ending thereafter.

 

References to the terms of the Amendment and the Amended Credit Agreement are qualified in their entirety by reference to the full text of the Amendment, which is incorporated herein by reference to Exhibit 10.1.

 

Item 8.01 Other Events.

 

 On September 22, 2020, the Company issued a press release announcing the proposed offering of $500 million aggregate principal amount of senior notes due 2025 (the “Notes”) in a private placement (the “Offering”) to qualified institutional buyers pursuant to Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”). The Company also announced its intent to grant the initial purchasers of the Notes an option to purchase, within a 13-day period beginning on, and including, the date on which the Notes are first issued, up to an additional $75 million aggregate principal amount of notes. A copy of the press release announcing the Offering is attached hereto as Exhibit 99.1 and incorporated herein by reference.

 

This Current Report on Form 8-K (this “Report”) does not constitute an offer to sell or the solicitation of an offer to buy any securities, nor shall it constitute an offer to sell, solicitation or sale in any jurisdiction in which such offer, solicitation or sale would be unlawful. Any offers of the securities would be made only by means of a confidential offering memorandum. These securities have not been registered under the Securities Act or any state securities laws and, unless so registered, may not be offered or sold in the United States or to U.S. persons except pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act and applicable state laws.

 

Item 9.01 Financial Statements and Exhibits.

 

(d) Exhibits

 

Number     Description
10.1     First Amendment to Amended and Restated Credit Agreement, dated as of September 22, 2020, among Omnicell, Inc., the lenders party thereto, and Wells Fargo Bank, National Association, as administrative agent
99.1     Press Release entitled “Omnicell Announces Proposed Private Placement of $500 Million of Convertible Senior Notes” dated September 22, 2020
104     Interactive Data File (embedded within the Inline XBRL document)

 

 

 

 

SIGNATURE

 

Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the Registrant has duly caused this report to be signed on its behalf by the undersigned, hereunto duly authorized.

 

  OMNICELL,  INC.
   
Date: September 22, 2020 /s/ Peter J. Kuipers
  Peter J. Kuipers
  Executive Vice President and Chief Financial Officer

 

 

 

 

Exhibit 10.1

 

Execution Version

 

FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT

 

THIS FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this “First Amendment”), dated as of September 22, 2020, is entered into by and among OMNICELL, INC., a Delaware corporation (the “Borrower”), each Subsidiary Guarantor (as defined in the Amended Credit Agreement (as defined below)) party hereto; each of the financial institutions party hereto as a Lender (as defined in the Credit Agreement (as defined below)); and WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as administrative agent for the Lenders under the Credit Agreement (the “Administrative Agent”). Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Amended Credit Agreement.

 

RECITALS

 

WHEREAS, the Borrower has entered into that certain Amended and Restated Credit Agreement, dated as of November 15, 2019 (as amended through the date hereof, the “Credit Agreement” and as amended by this First Amendment, the “Amended Credit Agreement”), with the Lenders from time to time party thereto and the Administrative Agent;

 

WHEREAS, the Borrower has requested certain amendments to the Credit Agreement as more fully described herein;

 

WHEREAS, the Required Lenders have consented and agreed to the Borrower’s requested amendments subject to the terms and conditions set forth in this First Amendment, as evidenced by the signatures of the Lenders party hereto; and

 

WHEREAS, by executing this First Amendment, the Borrower and each Subsidiary Guarantor reaffirms, after giving effect to each of the requested amendments, its obligations under each of the Guaranty Agreement, the Collateral Agreement and each other Loan Document (in each case as amended by this First Amendment).

 

NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

AGREEMENT

 

SECTION 1. AMENDMENTS.

 

Effective as of the First Amendment Effective Date (as defined below), the Credit Agreement is hereby amended to delete all stricken text (indicated textually in the same manner as the following example: stricken text) and to add all double-underlined text (indicated textually in the same manner as the following example: double-underlined text ) as set forth in the conformed Amended Credit Agreement attached hereto as Exhibit A.

 

 

 

 

SECTION 2. REPRESENTATIONS AND WARRANTIES; NO EVENTS OF DEFAULT.

 

The Borrower and each Subsidiary Guarantor party hereto represents and warrants that, as of the First Amendment Effective Date:

 

(a)        each Credit Party and each Subsidiary thereof has the right, power and authority and has taken all necessary corporate and other action to authorize the execution, delivery and performance of this First Amendment in accordance with its terms;

 

(b)       this First Amendment has been duly executed and delivered by the duly authorized officers of each Credit Party and each Subsidiary thereof that is a party hereto, and constitutes the legal, valid and binding obligation of each Credit Party and each Subsidiary thereof that is a party hereto, enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal Debtor Relief Laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies;

 

(c)        the representations and warranties contained in the Amended Credit Agreement and the other Loan Documents are true and correct in all material respects, except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty is true and correct in all respects, on and as of the First Amendment Effective Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty remains true and correct in all material respects as of such earlier date, except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects as of such earlier date); and

 

(d)        no Default or Event of Default has occurred and is continuing as of the First Amendment Effective Date, or will occur as a result of giving effect to the amendments contemplated by this First Amendment.

 

SECTION 3. REAFFIRMATION OF GUARANTEES AND SECURITY INTERESTS.

 

(a)        The Borrower and each Subsidiary Guarantor party hereto hereby consents to the terms and conditions of this First Amendment.

 

(b)        The Borrower and each Subsidiary Guarantor party hereto hereby: (i) reaffirms and confirms, immediately before and after giving effect to the amendments to the Loan Documents contemplated herein, its guarantees, pledges, grants (including, but not limited to, its grant of a security interest in the Collateral in favor of the Administrative Agent for the ratable benefit of the Secured Parties) and other undertakings under the Loan Documents to which it is a party; and (ii) agrees that: (A) each Loan Document to which it is a party shall, immediately after giving effect to the amendments to the Loan Documents contemplated herein, continue to be in full force and effect; and (B) all guarantees, pledges, grants (including, but not limited to, its grant of a security interest in the Collateral in favor of the Administrative Agent for the ratable benefit of the Secured Parties) and other undertakings thereunder shall, immediately after giving effect to the amendments to the Loan Documents contemplated herein, continue to be in full force and effect to guarantee and secure the Secured Obligations (as amended, increased and otherwise modified hereby) and shall accrue to the benefit of the Secured Parties.

 

2 

 

 

SECTION 4. CONDITIONS TO EFFECTIVENESS.

 

Notwithstanding any provision herein to the contrary, this First Amendment, and the consents and approvals contained herein, shall be effective (such date, the “First Amendment Effective Date”) only if and when each of the following conditions is satisfied:

 

4.1        this First Amendment is signed by, and counterparts hereof are delivered to the Administrative Agent (by hand delivery, mail or telecopy) by, each Credit Party and the Required Lenders;

 

4.2        the Administrative Agent shall have received a customary officer’s closing certificate (including with respect to the matters in Section 4.3 below);

 

4.3        each of the representations and warranties contained in Section 2 of this First Amendment are true and correct on and as of the First Amendment Effective Date;

 

4.4        the Borrower shall have paid all fees and expenses of the Administrative Agent and its Affiliates in connection with this First Amendment to the extent required by Section 12.3 of the Credit Agreement and in any separate engagement letter or fee letter between the Borrower and the Administrative Agent and/or its Affiliates.

 

SECTION 5. AUTHORIZATION TO MODIFY AND EXECUTE LOAN DOCUMENTS.

 

The undersigned Lenders, constituting the Required Lenders, hereby: (a) authorize and direct the Administrative Agent to execute this First Amendment; (b) consent to the transactions contemplated by this First Amendment; (c) authorize and direct the Administrative Agent to take any and all actions and execute such documents as shall be required to give effect to or otherwise implement this First Amendment and to exercise such powers under the Loan Documents as are delegated to the Administrative Agent by the terms thereof, together with such powers as are reasonably incidental thereto.

 

SECTION 6. MISCELLANEOUS

 

6.1        No Waiver; Continuing Effect of Loan Documents. Except as specifically modified pursuant to the terms of this First Amendment: (a) the terms and conditions of the Amended Credit Agreement and the other Loan Documents remain in full force and effect; and (b) nothing herein: (i) shall constitute a waiver, amendment or modification of any other provision of the Amended Credit Agreement or any other Loan Document; or (ii) shall be construed as a waiver or consent to any further or future action on the part of the Borrower or any Subsidiary Guarantor. Nothing herein shall limit in any way the rights and remedies of the Administrative Agent or the Lenders under the Amended Credit Agreement or under any other Loan Document. This First Amendment is a Loan Document under and as defined in the Amended Credit Agreement.

 

3 

 

 

6.2       Counterparts. This First 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 of a signature page of this First Amendment by facsimile or in electronic (i.e., “pdf” or “tif”) format shall be effective as delivery of a manually executed counterpart of this First Amendment.

 

6.3       Severability. Any provision of this First Amendment which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective only to the extent of such prohibition or unenforceability without invalidating the remainder of such provision or the remaining provisions hereof or thereof or affecting the validity or enforceability of such provision in any other jurisdiction.

 

6.4       Successor and Assigns. This First Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns pursuant to the terms of Section 12.9 of the Amended Credit Agreement.

 

6.5       Governing Law. This First Amendment, and any claim, controversy, dispute or cause of action (whether in contract or tort or otherwise) based upon, arising out of or relating to this First Amendment and the transactions contemplated hereby and thereby, shall be governed by, and construed in accordance with, the law of the State of New York.

 

[Signature pages follow]

 

4 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to be duly executed by their respective authorized officers as of the day and year first above written.

 

  OMNICELL, INC.,
  a Delaware corporation,
as the Borrower
   
  By: /s/ Peter J. Kuipers
  Name: Peter J. Kuipers
  Title: Executive Vice President and Chief Financial Officer

 

  ATEB, INC.,
  a North Carolina corporation,
as a Subsidiary Guarantor
   
  By: /s/ Joseph B. Spears
  Name: Joseph B. Spears
  Title: President and Chief Executive Officer

 

  MEDPAK HOLDINGS, INC.,
  a Delaware corporation,
  as a Subsidiary Guarantor
   
  By: /s/ Joseph B. Spears
  Name: Joseph B. Spears
  Title: President, Chief Financial Officer and Treasurer

 

  MTS MEDICATION TECHNOLOGIES, INC.,
  a Delaware corporation,
  as a Subsidiary Guarantor
   
  By: /s/ Joseph B. Spears
  Name: Joseph B. Spears
  Title: President

 

  MTS PACKAGING SYSTEMS, INC.,
  a Florida corporation,
  as a Subsidiary Guarantor
   
  By: /s/ Joseph B. Spears
  Name: Joseph B. Spears
  Title: President

 

[Signature Page to First Amendment to Amended and Restated Credit Agreement]

 

 

 

 

 

WELLS FARGO BANK, NATIONAL ASSOCIATION,  
as the Administrative Agent and a Lender  
   
By: /s/ Jonathan Antonio  
Name: Jonathan Antonio  
Title: Director  

 

[Signature Page to First Amendment to Amended and Restated Credit Agreement]

 

 

 

 

JPMORGAN CHASE BANK, N.A.,  
as a Lender  
   
By: /s/ Ling Li  
Name: Ling Li  
Title: Executive Director  

 

[Signature Page to First Amendment to Amended and Restated Credit Agreement]

 

 

 

 

Citizens Bank, N.A.,  
as a Lender  
   
By: /s/ Mark Guyeski  
Name: Mark Guyeski  
Title: Vice President  

 

[Signature Page to First Amendment to Amended and Restated Credit Agreement]

 

 

 

 

Bank of the West,  
as a Lender  
   
By: /s/ Adriana Collins  
Name: Adriana Collins  
Title: Director  

 

[Signature Page to First Amendment to Amended and Restated Credit Agreement]

 

 

 

 

FIFTH THIRD BANK, NATIONAL ASSOCIATION,  
as a Lender  
   
By: /s/ Ellie Robertson  
Name: Ellie Robertson  
Title: Principal  

 

Classification: Internal Use

 

[Signature Page to First Amendment to Amended and Restated Credit Agreement]

 

 

 

 

BBVA USA  
as a Lender  
   
By: /s/ Chris Dowler  
Name: Chris Dowler  
Title: Senior Vice Pre ident  

 

[Signature Page to First Amendment to Amended and Restated Credit Agreement]

 

 

 

 

HSBC BANK USA, NATIONAL ASSOCIATION,  
as a Lender  
   
By: /s/ Darren Santos  
Name: Darren Santos  
Title: SVP, 22672  

 

[Signature Page to First Amendment to Amended and Restated Credit Agreement]

 

 

 

 

Truist Bank(as successor by merger to SunTrust Bank)  
as a Lender  
   
By: /s/ Alfonso Brigham  
Name: Alfonso Brigham  
Title: Vice President  

 

[Signature Page to First Amendment to Amended and Restated Credit Agreement]

 

 

 

 

COMERICA BANK,  
as a Lender  
   
By: /s/ Mark C. Skrzynski Jr.  
Name: Mark C. Skrzynski Jr.  
Title: Vice President  

 

[Signature Page to First Amendment to Amended and Restated Credit Agreement]

 

 

 

 

TD Bank, N.A.  
as a Lender  
   
By: /s/ Shivani Agarwal  
Name: Shivani Agarwal  
Title: Senior Vice President  

 

[Signature Page to First Amendment to Amended and Restated Credit Agreement]

 

 

 

 

U.S. BANK NATIONAL ASSOCIATION,  
as a Lender  
   
By: /s/ Tom Priedeman  
Name: Tom Priedeman  
Title: Senior Vice President  

 

[Signature Page to First Amendment to Amended and Restated Credit Agreement]

 

 

 

 

EXHIBIT A

 

Amended Credit Agreement

 

 

 

 

Execution VersionEXHIBIT A

 

 

$500,000,000

 

AMENDED AND RESTATED CREDIT AGREEMENT

 

dated as of November 15, 2019,

as amended by the First Amendment to Amended and Restated Credit Agreement,
dated as of September 22, 2020

 

by and among

 

OMNICELL, INC.,

as Borrower,

 

the Lenders referred to herein,

as Lenders,

 

and

 

WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Administrative Agent,

Swingline Lender and an Issuing Lender

 

and

 

CITIZENS BANK, N.A. and JPMORGAN CHASE BANK, N.A.,

as Issuing Lenders

 

and

 

WELLS FARGO SECURITIES, LLC, CITIZENS BANK, N.A. and JPMORGAN CHASE BANK,
N.A.,

as Joint Lead Arrangers and Bookrunners

 

and

 

CITIZENS BANK, N.A. and JPMORGAN CHASE BANK, N.A.,

as Co-Syndication Agents

 

 

 

 

 

TABLE OF CONTENTS

 

    Page
     
ARTICLE I DEFINITIONS        1
     
SECTION 1.1 Definitions        1
SECTION 1.2 Other Definitions and Provisions        4244
SECTION 1.3 Accounting Terms        4244
SECTION 1.4 UCC Terms        4345
SECTION 1.5 Rounding        4345
SECTION 1.6 References to Agreement and Laws        4345
SECTION 1.7 Times of Day        4345
SECTION 1.8 Letter of Credit Amounts        4345
SECTION 1.9 Guarantees        4345
SECTION 1.10 Covenant Compliance Generally        4346
SECTION 1.11 Exchange Rates; Currency Alternatives        4346
SECTION 1.12 Alternative Currencies        4446
SECTION 1.13 Divisions        4447
     
ARTICLE II REVOLVING CREDIT FACILITY        4547
     
SECTION 2.1 Revolving Credit Loans        4547
SECTION 2.2 Swingline Loans        4547
SECTION 2.3 Procedure for Advances of Revolving Credit Loans and Swingline Loans        4749
SECTION 2.4 Repayment and Prepayment of Revolving Credit and Swingline Loans        4850
SECTION 2.5 Permanent Reduction of the Revolving Credit Commitment        4951
SECTION 2.6 Termination of Revolving Credit Facility        4952
     
ARTICLE III LETTER OF CREDIT FACILITY        5052
     
SECTION 3.1 L/C Facility        5052
SECTION 3.2 Procedure for Issuance of Letters of Credit        5053
SECTION 3.3 Commissions and Other Charges        5153
SECTION 3.4 L/C Participations        5154
SECTION 3.5 Reimbursement Obligation of the Borrower        5255
SECTION 3.6 Obligations Absolute        5355
SECTION 3.7 Effect of Letter of Credit Application        5356
SECTION 3.8 Resignation of Issuing Lenders        5356
SECTION 3.9 Reporting of Letter of Credit Information and L/C Commitment        5456
SECTION 3.10 Letters of Credit Issued for Subsidiaries        5456
     
ARTICLE IV TERM LOAN FACILITY        5457
     
SECTION 4.1 [Reserved]        5457
SECTION 4.2 Procedure for Advance of Term Loan        5457
SECTION 4.3 Repayment of Term Loans        5557
SECTION 4.4 Prepayments of Term Loans        5557

 

i

 

 

TABLE OF CONTENTS

(continued)

 

    Page
     
ARTICLE V GENERAL LOAN PROVISIONS   5860
     
SECTION 5.1 Interest   5860
SECTION 5.2 Notice and Manner of Conversion or Continuation of Loans   5961
SECTION 5.3 Fees   5961
SECTION 5.4 Manner of Payment   6062
SECTION 5.5 Evidence of Indebtedness   6062
SECTION 5.6 Sharing of Payments by Lenders   6163
SECTION 5.7 Administrative Agent’s Clawback   6263
SECTION 5.8 Changed Circumstances   6264
SECTION 5.9 Indemnity   6465
SECTION 5.10 Increased Costs   6466
SECTION 5.11 Taxes   6667
SECTION 5.12 Mitigation Obligations; Replacement of Lenders   6970
SECTION 5.13 Incremental Loans   7071
SECTION 5.14 Cash Collateral   7475
SECTION 5.15 Defaulting Lenders   7576
SECTION 5.16 Amend and Extend Transactions   7778
     
ARTICLE VI CONDITIONS OF CLOSING AND BORROWING   7980
     
SECTION 6.1 Conditions to Closing and Initial Extensions of Credit   7980
SECTION 6.2 Conditions to All Extensions of Credit   8283
     
ARTICLE VII REPRESENTATIONS AND WARRANTIES OF THE CREDIT PARTIES   8384
     
SECTION 7.1 Organization; Power; Qualification   8384
SECTION 7.2 Ownership   8485
SECTION 7.3 Authorization; Enforceability   8485
SECTION 7.4 Compliance of Agreement, Loan Documents and Borrowing with Laws, Etc.   8485
SECTION 7.5 Compliance with Law; Governmental Approvals   8486
SECTION 7.6 Tax Returns and Payments   8586
SECTION 7.7 Intellectual Property Matters   8586
SECTION 7.8 Health Care Regulatory Matters   8586
SECTION 7.9 Environmental Matters   8687
SECTION 7.10 Employee Benefit Matters   8687
SECTION 7.11 Use of Proceeds; Margin Stock   8788
SECTION 7.12 Government Regulation   8889
SECTION 7.13 Material Contracts   8889
SECTION 7.14 Employee Relations   8889
SECTION 7.15 Burdensome Provisions   8889
SECTION 7.16 Financial Statements   8889
SECTION 7.17 No Material Adverse Change   8990
SECTION 7.18 Solvency   8990
SECTION 7.19 Title to Properties   8990
SECTION 7.20 Litigation   8990

 

ii

 

 

TABLE OF CONTENTS

(continued)

 

    Page
     
SECTION 7.21 Anti-Corruption Laws; Anti-Money Laundering Laws and Sanctions   8990
SECTION 7.22 Absence of Defaults   8991
SECTION 7.23 Senior Indebtedness Status   9091
SECTION 7.24 Disclosure   9091
SECTION 7.25 Security Documents   9091
SECTION 7.26 Insurance Matters   9192
SECTION 7.27 Flood Hazard Insurance   9192
SECTION 7.28 EEA Financial Institution   9193
SECTION 7.29 Beneficial Ownership Certification   93
     
ARTICLE VIII AFFIRMATIVE COVENANTS   9293
     
SECTION 8.1 Financial Statements and Budgets   9293
SECTION 8.2 Certificates; Other Reports   9394
SECTION 8.3 Notice of Litigation and Other Matters   9496
SECTION 8.4 Preservation of Corporate Existence and Related Matters   9596
SECTION 8.5 Maintenance of Property and Licenses   9597
SECTION 8.6 Insurance   9697
SECTION 8.7 Accounting Methods and Financial Records   9698
SECTION 8.8 Payment of Taxes and Other Obligations   9698
SECTION 8.9 Compliance with Laws and Approvals   9798
SECTION 8.10 Environmental Laws   9798
SECTION 8.11 Compliance with ERISA   9799
SECTION 8.12 Compliance with Material Contracts   9799
SECTION 8.13 Visits and Inspections   9799
SECTION 8.14 Additional Subsidiaries, Real Property and Other Collateral   9899
SECTION 8.15 [Reserved]   100101
SECTION 8.16 Post-Closing Matters   100101
SECTION 8.17 Further Assurances   100101
SECTION 8.18 Compliance with Anti-Corruption Laws and Sanctions   100102
     
ARTICLE IX NEGATIVE COVENANTS   101102
     
SECTION 9.1 Indebtedness   101102
SECTION 9.2 Liens   103105
SECTION 9.3 Investments   106107
SECTION 9.4 Fundamental Changes   109111
SECTION 9.5 Asset Dispositions   110112
SECTION 9.6 Restricted Payments   111113
SECTION 9.7 Transactions with Affiliates   112114
SECTION 9.8 Accounting Changes; Organizational Documents   112115
SECTION 9.9 Payments and Modifications of Subordinated Indebtedness   113115
SECTION 9.10 No Further Negative Pledges; Restrictive Agreements   114116
SECTION 9.11 Nature of Business   115118
SECTION 9.12 Sale Leasebacks   116118
SECTION 9.13 [Reserved   116119
SECTION 9.14 Financial Covenants   116119
SECTION 9.15 Disposal of Subsidiary Interests   116119

 

iii

 

 

TABLE OF CONTENTS

(continued)

 

    Page
     
SECTION 9.16 Reserved   116119
SECTION 9.17 Use of Proceeds; Sanction and Anti-Corruption Laws   117119
     
ARTICLE X DEFAULT AND REMEDIES   117120
     
SECTION 10.1 Events of Default   117120
SECTION 10.2 Remedies   119122
SECTION 10.3 Rights and Remedies Cumulative; Non-Waiver; etc.   120123
SECTION 10.4 Crediting of Payments and Proceeds   120123
SECTION 10.5 Administrative Agent May File Proofs of Claim   121124
SECTION 10.6 Credit Bidding   122125
     
ARTICLE XI THE ADMINISTRATIVE AGENT   122125
     
SECTION 11.1 Appointment and Authority   122125
SECTION 11.2 Rights as a Lender   123126
SECTION 11.3 Exculpatory Provisions   123126
SECTION 11.4 Reliance by the Administrative Agent   124127
SECTION 11.5 Delegation of Duties   125128
SECTION 11.6 Resignation of Administrative Agent   125128
SECTION 11.7 Non-Reliance on Administrative Agent and Other Lenders   126129
SECTION 11.8 No Other Duties, etc.   126129
SECTION 11.9 Collateral and Guaranty Matters   126129
SECTION 11.10 Secured Hedge Agreements and Secured Cash Management Agreements   127130
SECTION 11.11 ERISA Matters   127131
     
ARTICLE XII MISCELLANEOUS   128131
     
SECTION 12.1 Notices   128131
SECTION 12.2 Amendments, Waivers and Consents   131134
SECTION 12.3 Expenses; Indemnity   133137
SECTION 12.4 Right of Setoff   136139
SECTION 12.5 Governing Law; Jurisdiction, Etc.   136139
SECTION 12.6 Waiver of Jury Trial   137140
SECTION 12.7 Reversal of Payments   137140
SECTION 12.8 Injunctive Relief   137141
SECTION 12.9 Successors and Assigns; Participations   138141
SECTION 12.10 Treatment of Certain Information; Confidentiality   143146
SECTION 12.11 Performance of Duties   144147
SECTION 12.12 All Powers Coupled with Interest   144147
SECTION 12.13 Survival   144147
SECTION 12.14 Titles and Captions   144148
SECTION 12.15 Severability of Provisions   144148
SECTION 12.16 Counterparts; Integration; Effectiveness; Electronic Execution   144148
SECTION 12.17 Term of Agreement   145148
SECTION 12.18 USA PATRIOT Act; Beneficial Ownership Regulation   145148
SECTION 12.19 Independent Effect of Covenants   145149

 

iv

 

 

TABLE OF CONTENTS

(continued)

 

      Page
       
SECTION 12.20  No Advisory or Fiduciary Responsibility   145149
SECTION 12.21 Inconsistencies with Other Documents   146149
SECTION 12.22 Judgment Currency   146150
SECTION 12.23 Releases of Liens and Subsidiary Guarantors   147150
SECTION 12.24 Acknowledgement and Consent to Bail-In of EEAAffected Financial Institutions   147151
SECTION 12.25 Acknowledgement Regarding Any Supported QFCs   148151
SECTION 12.26 Amendment and Restatement   149153

 

v

 

 

EXHIBITS

 

Exhibit A-1   -   Form of Revolving Credit Note
Exhibit A-2   -   Form of Swingline Note
Exhibit A-3       Form of Term Loan Note
Exhibit B   -   Form of Notice of Borrowing
Exhibit C   -   Form of Notice of Account Designation
Exhibit D   -   Form of Notice of Prepayment
Exhibit E   -   Form of Notice of Conversion/Continuation
Exhibit F   -   Form of Officer’s Compliance Certificate
Exhibit G   -   Form of Assignment and Assumption
Exhibit H-1   -   Form of U.S. Tax Compliance Certificate (Non-Partnership Foreign Lenders)
Exhibit H-2   -   Form of U.S. Tax Compliance Certificate (Non-Partnership Foreign Participants)
Exhibit H-3   -   Form of U.S. Tax Compliance Certificate (Foreign Participant Partnerships)
Exhibit H-4   -   Form of U.S. Tax Compliance Certificate (Foreign Lender Partnerships)
Exhibit I   -   Form of Solvency Certificate
Exhibit J   -   Form of Perfection Certificate

 

SCHEDULES

 

Schedule 1.1(a)   -   Commitments and Commitment Percentages

 

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AMENDED AND RESTATED CREDIT AGREEMENT, dated as of November 15, 2019 (the “Effective Date”), by and among OMNICELL, INC., a Delaware corporation, as Borrower, the lenders who are party to this Agreement and the lenders who may become a party to this Agreement pursuant to the terms hereof, as Lenders, and WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as Administrative Agent for the Lenders.

 

STATEMENT OF PURPOSE

 

WHEREAS, the Borrower, the Administrative Agent and certain of the Lenders are parties to that certain Credit Agreement, dated as of January 5, 2016 (the “Original Closing Date”), as amended by that certain First Amendment to Credit Agreement and Collateral Agreement, dated as of April 11, 2017, and that certain Second Amendment to Credit Agreement, dated as of December 26, 2017 (the “Existing Credit Agreement”) and

 

WHEREAS, the Borrower has requested, and subject to the terms and conditions set forth in this Agreement, the Administrative Agent and the Lenders party hereto have agreed to amend and restate the Existing Credit Agreement in order to extend certain credit facilities to the Borrower.

 

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties hereto, the parties hereby agree as follows:

 

ARTICLE I

 

DEFINITIONS

 

SECTION 1.1 Definitions. The following terms when used in this Agreement shall have the meanings assigned to them below:

 

Acquisition” means any transaction, or any series of related transactions, consummated on or after the date of this Agreement, by which any Credit Party or any of its Subsidiaries: (a) acquires all or substantially all of the assets, business or a line of business of any Person, or any division thereof, whether through purchase of assets, merger or otherwise; or (b) directly or indirectly acquires (in one transaction or as the most recent transaction in a series of transactions) at least a majority (in number of votes) of the securities of a corporation which have ordinary voting power for the election of directors (other than securities having such power only by reason of the happening of a contingency) or a majority (by percentage or voting power) of the outstanding ownership interests of a partnership or limited liability company.

 

Administrative Agent” means Wells Fargo, in its capacity as Administrative Agent hereunder, and any successor thereto appointed pursuant to Section 11.6.

 

Administrative Agent’s Office” means the office of the Administrative Agent specified in or determined in accordance with the provisions of Section 12.1(c).

 

Administrative Questionnaire” means an administrative questionnaire in a form supplied by the Administrative Agent.

 

“ Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.

 

 

 

 

Affiliate” means, with respect to a specified 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.

 

Agreement” means this Amended and Restated Credit Agreement. “Agreement Currency” has the meaning assigned thereto in Section 12.22.

 

Alternative Currency” means each currency (other than Dollars) that is approved in accordance with Section 1.12.

 

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 Administrative Agent or the Issuing Lender, 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.

 

Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction applicable to the Borrower or its Subsidiaries from time to time concerning or relating to bribery or corruption, including, without limitation, the UK Bribery Act 2010, the United States Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder.

 

Applicable Law” means all applicable provisions of constitutions, laws, statutes, ordinances, rules, treaties, regulations, permits, licenses, approvals, interpretations and orders of Governmental Authorities and all orders and decrees of all courts and arbitrators.

 

Applicable Margin” means, with respect to the Revolving Credit Loans and Revolving Credit Commitments, the corresponding percentages per annum as set forth below based on the Consolidated Total Net Leverage Ratio:

 

Pricing
Level
  Consolidated Total Net Leverage
Ratio
  Commitment
Fee
   LIBOR +   Base Rate + 
I  Less than 1.25 to 1.00   0.15%   1.25%   0.25%
II  Greater than or equal to 1.25 to 1.00,
but less than 2.25 to 1.00
   0.20%   1.50%   0.50%
III  Greater than or equal to 2.25 to 1.00, but less than 3.25 to 1.00   0.25%   1.75%   0.75%
IV  Greater than or equal to 3.25 to 1.00   0.30%   2.00%   1.00%

 

The Applicable Margin with respect to any Series of Term Loans shall be set forth in the Lender Joinder Agreement applicable to such Series of Term Loans.

 

The Applicable Margin and the Commitment Fee with respect to the Revolving Credit Loans and the Revolving Credit Commitments shall be determined and adjusted quarterly on the date three (3) Business Days after the day on which the Borrower provides an Officer’s Compliance Certificate pursuant to Section 8.2(a) for the most recently ended fiscal quarter of the Borrower (each such date commencing with the end of the second full fiscal quarter after the Effective Date, a “Calculation Date”); provided, however, that notwithstanding the foregoing: (a) the Applicable Margin and the Commitment Fee with respect to the Revolving Credit Loans and the Revolving Credit Commitments shall be: (i) from the Effective Date until the first Calculation Date, the greater of: (A) Pricing Level I; and (B) the applicable Pricing Level based on the Consolidated Total Net Leverage Ratio calculated on a Pro Forma Basis (after giving effect to the Transactions) as of the last day of the most recent fiscal quarter of the Borrower ended at least forty-five (45) days prior to the Effective Date; and (ii) thereafter, the Pricing Level determined by reference to the Consolidated Total Net Leverage Ratio as of the last day of the most recently ended fiscal quarter of the Borrower preceding the applicable Calculation Date; and (b) if the Borrower fails to provide an Officer’s Compliance Certificate when due as required by Section 8.2(a) for the most recently ended fiscal quarter of the Borrower preceding the applicable Calculation Date, the Applicable Margin and the Commitment Fee with respect to the Revolving Credit Loans and the Revolving Credit Commitments from the date on which such Officer’s Compliance Certificate was required to have been delivered shall be based on Pricing Level IV until such time as such Officer’s Compliance Certificate is delivered, at which time the Pricing Level shall be determined by reference to the Consolidated Total Net Leverage Ratio as of the last day of the most recently ended fiscal quarter of the Borrower preceding such Calculation Date. The applicable Pricing Level shall be effective from one Calculation Date until the next Calculation Date. Any adjustment in the Pricing Level shall be applicable to all Extensions of Credit under the applicable Credit Facility then existing or subsequently made or issued.

 

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Notwithstanding the foregoing, in the event that any financial statement or Officer’s Compliance Certificate delivered pursuant to Section 8.1 or 8.2(a) is shown to be inaccurate (regardless of whether: (x) this Agreement is in effect; (y) any Commitments are in effect; or (z) any Extension of Credit is outstanding when such inaccuracy is discovered or such financial statement or Officer’s Compliance Certificate was delivered), and such inaccuracy, if corrected, would have led to the application of a higher Applicable Margin or Commitment Fee for any period (an “Applicable Period”) than the Applicable Margin or Commitment Fee applied for such Applicable Period, then: (I) the Borrower shall immediately deliver to the Administrative Agent a corrected Officer’s Compliance Certificate for such Applicable Period; (II) the Applicable Margin and Commitment Fee for such Applicable Period shall be determined as if the Consolidated Total Net Leverage Ratio in the corrected Officer’s Compliance Certificate were applicable for such Applicable Period; and (III) the Borrower shall immediately and retroactively be obligated to pay to the Administrative Agent the accrued additional interest and fees owing as a result of such increased Applicable Margin or Commitment Fee for such Applicable Period, which payment shall be promptly applied by the Administrative Agent in accordance with Section 5.4. Nothing in this paragraph shall limit the rights of the Administrative Agent and Lenders with respect to Sections 5.1(b) and 10.2 nor any of their other rights under this Agreement or any other Loan Document.

 

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 determined by Administrative Agent or the Issuing Lender, as the case may be, to be necessary for timely settlement on the relevant date in accordance with normal banking procedures in the place of payment.

 

Approved Fund” means any Fund 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 each of Wells Fargo Securities, LLC, Citizens Bank, N.A. and JPMorgan Chase Bank, N.A., in its capacity as joint lead arranger and joint bookrunner.

 

Asset Disposition” means the sale, transfer, license, lease or other disposition of any Property (including any disposition of Equity Interests) by any Credit Party or any Subsidiary thereof, and any issuance of Equity Interests by any Subsidiary of the Borrower to any Person that is not a Credit Party or any Subsidiary thereof. The term “Asset Disposition” shall not include: (a) the sale of inventory in the ordinary course of business; (b) the transfer of assets to the Borrower or any Subsidiary Guarantor pursuant to any other transaction permitted pursuant to Section 9.4; (c) the write-off, discount, sale or other disposition of defaulted or past-due receivables and similar obligations in the ordinary course of business and not undertaken as part of an accounts receivable financing transaction; (d) the disposition or termination of any Hedge Agreement; (e) the use of cash in the ordinary course of business and dispositions of Investments in cash, Cash Equivalents, or short-term marketable debt securities; (f) the transfer by any Credit Party of assets to any other Credit Party; (g) the transfer by any Non-Guarantor Subsidiary of assets to any Credit Party (provided that in connection with any new transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith by the Borrower at the time of such transfer); (h) the transfer by any Non-Guarantor Subsidiary of assets to any other Non-Guarantor Subsidiary; and (i) the incurrence of any Permitted Lien.

 

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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 12.9), and accepted by the Administrative Agent, in substantially the form attached as Exhibit G or any other form approved by the Administrative Agent.

 

Attributable Indebtedness” means, on any date of determination, in respect of any Synthetic Lease, the capitalized amount or principal amount of the remaining lease payments under the relevant lease that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were accounted for as a Capital Lease Obligation.

 

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 EEAAffected Financial Institution.

 

Bail-In Legislation” means, (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation, rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule. and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).

 

Base Rate” means, at any time, the highest of: (a) the Prime Rate; (b) the Federal Funds Rate plus 0.50%; and (c) the LIBOR Rate for an Interest Period of one month plus 1.00%; each change in the Base Rate shall take effect simultaneously with the corresponding change or changes in the Prime Rate, the Federal Funds Rate, or the LIBOR Rate (provided that clause (c) shall not be applicable during any period in which the LIBOR Rate is unavailable or unascertainable). Notwithstanding the foregoing, if the Base Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.

 

Base Rate Loan” means any Loan bearing interest at a rate based upon the Base Rate, as provided in Section 5.1(a).

 

Benchmark Replacement” means the sum of: (a) the alternate benchmark rate (which may include Term SOFR) that has been selected by the Administrative Agent and the Borrower giving due consideration to (i) any selection or recommendation of a replacement rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a rate of interest as a replacement to LIBOR for U.S. dollar-denominated syndicated credit facilities and (b) the Benchmark Replacement Adjustment; provided that, if the Benchmark Replacement as so determined would be less than zero, the Benchmark Replacement will be deemed to be zero for the purposes of this Agreement.

 

4 

 

 

Benchmark Replacement Adjustment” means, with respect to any replacement of LIBOR with an Unadjusted Benchmark Replacement for each applicable Interest Period, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Borrower giving due consideration to (a) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of LIBOR with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (b) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of LIBOR with the applicable Unadjusted Benchmark Replacement for U.S. dollar-denominated syndicated credit facilities at such time.

 

Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base Rate,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest and other administrative matters) that the Administrative Agent determines may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent determines that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of the Benchmark Replacement exists, in such other manner of administration as the Administrative Agent determines is reasonably necessary in connection with the administration of this Agreement).

 

Benchmark Replacement Date” means the earlier to occur of the following events with respect to LIBOR:

 

(a)                 in the case of clause (a) or (b) of the definition of “Benchmark Transition Event,” the later of (i) the date of the public statement or publication of information referenced therein and (ii) the date on which the administrator of LIBOR permanently or indefinitely ceases to provide LIBOR; and

 

(b)                 in the case of clause (c) of the definition of “Benchmark Transition Event,” the date of the public statement or publication of information referenced therein.

 

Benchmark Transition Event” means the occurrence of one or more of the following events with respect to LIBOR:

 

(a)                 a public statement or publication of information by or on behalf of the administrator of LIBOR announcing that such administrator has ceased or will cease to provide LIBOR, permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide LIBOR;

 

(b)                a public statement or publication of information by the regulatory supervisor for the administrator of LIBOR, the U.S. Federal Reserve System, an insolvency official with jurisdiction over the administrator for LIBOR, a resolution authority with jurisdiction over the administrator for LIBOR or a court or an entity with similar insolvency or resolution authority over the administrator for LIBOR, which states that the administrator of LIBOR has ceased or will cease to provide LIBOR permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide LIBOR; or

 

5 

 

 

(c)                 a public statement or publication of information by the regulatory supervisor for the administrator of LIBOR announcing that LIBOR is no longer representative.

 

Benchmark Transition Start Date” means (a) in the case of a Benchmark Transition Event, the earlier of (i) the applicable Benchmark Replacement Date and (ii) if such Benchmark Transition Event is a public statement or publication of information of a prospective event, the 90th day prior to the expected date of such event as of such public statement or publication of information (or if the expected date of such prospective event is fewer than 90 days after such statement or publication, the date of such statement or publication) and (b) in the case of an Early Opt-in Election, the date specified by the Administrative Agent or the Required Lenders, as applicable, by notice to the Borrower, the Administrative Agent (in the case of such notice by the Required Lenders) and the Lenders.

 

Benchmark Unavailability Period” means, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to LIBOR and solely to the extent that LIBOR has not been replaced with a Benchmark Replacement, the period (a) beginning at the time that such Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced LIBOR for all purposes hereunder in accordance with Section 5.8(c) and (b) ending at the time that a Benchmark Replacement has replaced LIBOR for all purposes hereunder pursuant to Section 5.8(c).

 

Beneficial Ownership Certification” means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.

 

Beneficial Ownership Regulation” has the meaning assigned thereto in Section 6.1(f)(iii).

 

Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Part 4 of Subtitle B of Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code to which Section 4975 of the Code applies or (c) any Person whose assets include (for within the meaning of the Plan Asset Regulations) the assets of any such “employee benefit plan” or “plan.”

 

Borrower” means Omnicell, Inc., a Delaware corporation.

 

Borrower Materials” has the meaning assigned thereto in Section 8.2.

 

Business Day” means: (a) for all purposes other than as set forth in clause (b) below, any day other than a Saturday, Sunday or legal holiday on which banks in San Francisco, California and New York, New York, are open for the conduct of their commercial banking business; and (b) with respect to all notices and determinations in connection with, and payments of principal and interest on, any LIBOR Rate Loan, or any Base Rate Loan as to which the interest rate is determined by reference to LIBOR, any day that is a Business Day described in clause (a) and that is also a London Banking Day.

 

Calculation Date” has the meaning assigned thereto in the definition of Applicable Margin.

 

Capital Expenditures” means, with respect to the Borrower and its Subsidiaries on a Consolidated basis, for any period, the additions to property, plant and equipment and software development costs that are (or would be) set forth under “cash flows from investment activities” in a consolidated statement of cash flows of such Person for such period prepared in accordance with GAAP, but excluding: (a) expenditures for the restoration, repair or replacement of any fixed or capital asset which was destroyed or damaged, in whole or in part, to the extent financed by the proceeds of an insurance policy maintained by such Person; and (b) any expenditure to the extent constituting Permitted Acquisition Consideration.

 

6 

 

 

Capital Lease” means, as to any Person, any lease (or other arrangement conveying the right to use) of Property (whether real, personal or mixed) by such Person as lessee that, in conformity with GAAP, is accounted for as a capital lease on the balance sheet of such Person.

 

Capital Lease Obligations” of any Person means, on any date of determination, in respect of any Capital 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.

 

Cash Collateralize” means, to deposit in a Controlled Account located in the United States or to pledge and deposit with, or deliver to the Administrative Agent, or directly to the applicable Issuing Lender (with notice thereof to the Administrative Agent) for the benefit of one or more of the Issuing Lenders, the Swingline Lender or the Lenders, as collateral for L/C Obligations or obligations of the Lenders to fund participations in respect of L/C Obligations or Swingline Loans, cash or deposit account balances or, if the Administrative Agent and the applicable Issuing Lender and the Swingline Lender shall agree, in their sole discretion, other credit support, in each case pursuant to documentation in form and substance satisfactory to the Administrative Agent, such Issuing Lender and the Swingline Lender, as applicable. “Cash Collateral” and “Cash Collateralization” shall have a meaning correlative to the foregoing and “Cash Collateral” shall include the proceeds of such cash collateral and other credit support.

 

Cash Equivalents” means, collectively: (a) marketable direct obligations issued or unconditionally guaranteed by the United States or any agency thereof maturing within one hundred eighty (180) days from the date of acquisition thereof; (b) marketable direct obligations issued by any state, commonwealth or territory of the United States or any political subdivision of any such state, commonwealth or territory, as applicable, maturing within one hundred eighty (180) days from the date of acquisition thereof and having, at the time of the acquisition thereof, one of the two highest ratings obtainable from either S&P, Moody’s or Fitch; (c) commercial paper maturing no more than one hundred eighty (180) days from the date of creation thereof and currently having a rating of at least A-1 from S&P, P-1 from Moody’s or F1 from Fitch; (d) certificates of deposit maturing no more than one hundred eighty (180) days from the date of creation thereof issued by commercial banks incorporated under the laws of the United States, each having combined capital, surplus and undivided profits of not less than $500,000,000 and having a rating of “A” or better by a nationally recognized rating agency; (e) repurchase agreements entered into by any Person with a commercial bank described in clause (d) above (including any of the Lenders) for direct obligations issued or fully guaranteed by the United States; (f) time deposits maturing no more than thirty (30) days from the date of creation thereof with commercial banks or savings banks or savings and loan associations each having membership either in the FDIC or the deposits of which are insured by the FDIC and in amounts not exceeding the maximum amounts of insurance thereunder; and (g) shares of any money market mutual fund that: (i) has at least 95% of its assets invested continuously in the types of investments referred to in clauses (a) and (b) above; (ii) has net assets of not less than $2,000,000,000; and (iii) has the highest rating obtainable from either S&P or Moody’s.

 

Cash Management Agreement” means any agreement to provide Cash Management Services.

 

Cash Management Services” means treasury, depository, overdraft, cash pooling, netting, credit or debit card (including non-card electronic payables), credit card processing services, electronic funds transfer (including automated clearing house funds transfers), and other cash management arrangements.

 

7 

 

 

Cash Management Bank” means any Person that: (a) at the time it enters into a Cash Management Agreement with a Credit Party or a Subsidiary thereof, is the Administrative Agent or an Affiliate of the Administrative Agent; or (b) at the time it enters into a Cash Management Agreement with a Credit Party or a Subsidiary thereof, is a Lender or an Affiliate of a Lender, and is designated by written notice to the Administrative Agent from the Borrower as a “Cash Management Bank”; or (c) at the time it (or its Affiliate) becomes a Lender (including on the Effective Date), is a party to a Cash Management Agreement with a Credit Party or a Subsidiary thereof and is designated by written notice to the Administrative Agent from the Borrower as a “Cash Management Bank”.

 

CFC” means any Person that is a “controlled foreign corporation” within the meaning of Section 957 of the Code.

 

Change in Control” means an event or series of events by which:

 

(a)                 any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act, but excluding any Employee Benefit Plan of such person or its Subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a “person” or “group” shall be deemed to have “beneficial ownership” of all Equity Interests that such “person” or “group” has the right to acquire, whether such right is exercisable immediately or only after the passage of time (such right, an “option right”)), directly or indirectly, of more than forty percent (40%) of the Equity Interests of the Borrower entitled to vote in the election of members of the board of directors (or equivalent governing body) of the Borrower; or

 

(b)                 there shall have occurred under any indenture or other instrument evidencing any Indebtedness or Equity Interests having a liquidation preference in excess of $10,000,000 any “change in control,” “ fundamental change” or similar provision (as set forth in the indenture, agreement or other evidence of such Indebtedness or certificate or designation or other instrument governing such Equity Interests, as applicable) obligating the Borrower or any of its Subsidiaries to repurchase, redeem or repay all or any part of the Indebtedness or Equity Interests provided for therein.

 

Change in Law” means the occurrence, after the date of this Agreement, 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: (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith; and (ii) 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, implemented or issued.

 

Citizens” means Citizens Bank, N.A., a national banking association.

 

Class” means, when used in reference to any Loan, whether such Loan is a Revolving Credit Loan, Swingline Loan or Term Loan and, when used in reference to any Commitment, whether such Commitment is a Revolving Credit Commitment or a Term Loan Commitment.

 

8 

 

 

Code” means the United States Internal Revenue Code of 1986, as amended, and the rules and regulations promulgated thereunder.

 

Collateral” means the collateral security for the Secured Obligations pledged or granted pursuant to the Security Documents.

 

Collateral Agreement” means the collateral agreement dated as of the Original Closing Date executed by the Credit Parties in favor of the Administrative Agent, for the ratable benefit of the Secured Parties, which shall be in form and substance acceptable to the Administrative Agent.

 

Commitment Fee” has the meaning assigned thereto in Section 5.3(a).

 

Commitment Percentage” means, as to any Lender, such Lender’s Revolving Credit Commitment Percentage or Term Loan Percentage, as applicable.

 

Commitments” means, collectively, as to all Lenders, the Revolving Credit Commitments and the Term Loan Commitments of such Lenders.

 

Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.). “Competitor” means any Person designated in writing by the Borrower to the Administrative Agent that competes with the Borrower or any of its Subsidiaries in a principal line of business of the Borrower and its Subsidiaries, considered as a whole.

 

Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.

 

Consolidated” means, when used with reference to financial statements or financial statement items of any Person, such statements or items on a consolidated basis in accordance with applicable principles of consolidation under GAAP.

 

9 

 

 

Consolidated Adjusted EBITDA” means, for any period, the sum of the following determined on a Consolidated basis, without duplication, for the Borrower and its Subsidiaries in accordance with GAAP: (a) Consolidated Net Income for such period; plus (b) the sum of the following, without duplication, to the extent deducted in determining (or otherwise reducing) Consolidated Net Income for such period: (i) income and franchise Taxes; (ii) Consolidated Interest Expense; (iii) amortization, depreciation and other non-cash charges (except to the extent that such non-cash charges are reserved for cash charges to be taken in the future), including adjustments arising under purchase accounting for any Acquisition; (iv) extraordinary losses (excluding extraordinary losses from discontinued operations); (v) non-cash equity-based compensation expenses; (vi) Transaction Costs related to the Transactions; (vii) Transaction Costs related to any issuance of Indebtedness permitted pursuant to Section 9.1 (other than the issuance of Indebtedness pursuant to this Agreement and the other Loan Documents); provided that the aggregate amount added back pursuant to this clause (vii) during any period of four (4) consecutive fiscal quarters shall not exceed $15,000,000; (viii) Transaction Costs related to any equity offering, Asset Disposition, Permitted Acquisition or other Investment and any restructuring costs (including severance and retention expenses), integration costs, and write-offs of intangibles in connection with such transaction, in each case with respect to such restructuring costs or write-offs, to the extent paid or made within twelve (12) months of the closing of such transaction, as applicable; provided that the aggregate amount added back pursuant to this clause (viii) and clause (ixclauses (ix) and (x) below during any period of four (4) consecutive fiscal quarters shall not exceed 20% of Consolidated Adjusted EBITDA (calculated prior to giving effect to such addbacks); (ix) any severance, relocation, retention, contract termination, legal settlements, transition, integration, insourcing, outsourcing, recruiting or other restructuring expenses (including, but not limited to, accounting and legal fees in connection with any of the foregoing); provided that the aggregate amount added back pursuant to this clause (ix), clause (viii) above and clause (x) below during any period of four (4) consecutive fiscal quarters shall not exceed 20% of Consolidated Adjusted EBITDA (calculated prior to giving effect to such addbacks); and (ixx) the amount of “run rate” synergies, operating expense reductions, operating improvements and other operating changes that are reasonably identifiable and factually supportable and projected by the Borrower in good faith to be realized within twelveeighteen (1218) months of any applicable Specified Transaction occurring during such period (as certified by a financial officer of the Borrower providing reasonable detail with respect to such “run rate” synergies, operating expense reductions, operating improvements and other operating changes delivered together with the applicable financial statements delivered pursuant to Section 8.1(a) or (b)), calculated as though such “run rate” synergies, operating expense reductions, operating improvements and other operating changes had been realized during the entirety of such period and net of the actual benefits realized during such period from such actions; provided that (A) no “run rate” synergies, operating expense reductions, operating improvements and other operating changes shall be added pursuant to this clause (ixx) to the extent duplicative of any expenses or charges otherwise added to Consolidated Adjusted EBITDA, whether through a pro forma adjustment or otherwise, for such period, (B) projected amounts (and not yet realized) may no longer be added in calculating Consolidated Adjusted EBITDA pursuant to this clause (ixx) to the extent more than twelveeighteen (1218) months have elapsed after the specified action taken in order to realize such projected “run rate” synergies, operating expense reductions, operating improvements and other operating changes and (C) the aggregate amount added pursuant to this clause (ixx) and clauseclauses (viii) and (ix) above during any period of four (4) consecutive fiscal quarters shall not exceed 20% of Consolidated Adjusted EBITDA (calculated prior to giving effect to such addbacks); less (c) the sum of the following, without duplication, to the extent included in the determination of Consolidated Net Income for such period: (i) interest income, (ii) any extraordinary gains and (iii) non-cash gains or non-cash items increasing Consolidated Net Income. For purposes of this Agreement, Consolidated Adjusted EBITDA shall be calculated on a Pro Forma Basis.

 

Consolidated Interest Coverage Ratio” means, as of any date of determination, the ratio of: (a) Consolidated Adjusted EBITDA for the period of four (4) consecutive fiscal quarters ending on or immediately prior to such date; to (b) Consolidated Interest Expense that is paid or payable in cash for the period of four (4) consecutive fiscal quarters ending on or immediately prior to such date, calculated on a Pro Forma Basis.

 

Consolidated Interest Expense” means, for any period, the sum of the following determined on a Consolidated basis, without duplication, for the Borrower and its Subsidiaries in accordance with GAAP, interest expense (including, without limitation, interest expense attributable to Capital Lease Obligations and all net payment obligations pursuant to Hedge Agreements) for such period.

 

Consolidated Net Income” means, for any period, the net income (or loss) of the Borrower and its Subsidiaries for such period, determined on a Consolidated basis, without duplication, in accordance with GAAP; provided that in calculating Consolidated Net Income of the Borrower and its Subsidiaries for any period, there shall be excluded: (a) the net income (or loss) of any Person (other than a Subsidiary which shall be subject to clause (c) below), in which the Borrower or any of its Subsidiaries has a joint interest with a third party, except to the extent such net income is actually paid in cash to the Borrower or any of its Subsidiaries by dividend or other distribution during such period; (b) the net income (or loss) of any Person accrued prior to the date it becomes a Subsidiary of the Borrower or any of its Subsidiaries, or is merged into or consolidated with the Borrower or any of its Subsidiaries, or that Person’s assets are acquired by the Borrower or any of its Subsidiaries; (c) the net income (if positive), of any Non-Guarantor Subsidiary to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary to the Borrower or any of its Subsidiaries of such net income is not at the time permitted by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to such Subsidiary, but in each case only to the extent of such prohibition; and (d) any net after-tax gains or losses attributable to Asset Dispositions in excess of $1,000,000 in any period of four (4) consecutive fiscal quarters (other than any Asset Disposition permitted under Section 9.5(c), Section 9.5(d), Section 9.5(i) or Section 9.5(j)) during such period.

 

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“ Consolidated Secured Net Leverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated Total Funded Indebtedness that is secured by a Lien on any asset or property of the Borrower or any of its Subsidiaries minus Unrestricted Cash on such date to (b) Consolidated Adjusted EBITDA for the period of four (4) consecutive fiscal quarters ending on or immediately prior to such date.

 

Consolidated Total Assets” means, as of any date of determination, the book value of the consolidated total assets of the Borrower and its Subsidiaries, as determined on a Consolidated basis in accordance with GAAP, as set forth on the consolidated balance sheet of the Borrower as of the last day of the fiscal quarter of the Borrower ending immediately prior to the date of determination and for which financial statements are required to have been, or have been, delivered under Section 8.1.

 

Consolidated Total Funded Indebtedness” means, as of any date of determination with respect to the Borrower and its Subsidiaries on a Consolidated basis without duplication, the sum of all Indebtedness of the Borrower and its Subsidiaries of the type described in clauses (a), (b) (but excluding any obligations in respect of purchase price adjustments, earn-outs, holdbacks or deferred payments of a similar nature in connection with any Acquisition or Asset Disposition permitted under this Agreement), (c), (e), (f) (limited to the amounts thereunder that have been drawn and not reimbursed), (g) and (i) (but only to the extent relating to the foregoing clauses) of the definition of “Indebtedness”. For the avoidance of doubt, “Consolidated Total Funded Indebtedness” shall not include (i) any obligations of the Borrower or any Subsidiary in respect of Customer Lease Financings so long as there is no recourse to the Borrower or any Subsidiary thereunder other than Standard Receivables Financing Undertakings, (ii) any obligations of the Borrower or any Subsidiary in respect of Qualified Accounts Receivable Dispositions, (iii) (A) any obligations of the Borrower or any Subsidiary (other than Special Purpose Receivables Subsidiaries) in respect of Permitted Receivables Financings so long as there is no recourse to the Borrower or any Subsidiary (other than Special Purpose Receivables Subsidiaries) thereunder other than Standard Receivables Financing Undertakings and (B) any obligations of Special Purpose Receivables Subsidiaries in respect of Permitted Receivables Financings, and (iv) Indebtedness in respect of Cash Management Services.

 

Consolidated Total Net Leverage Ratio” means, as of any date of determination, the ratio of: (a) Consolidated Total Funded Indebtedness minus Unrestricted Cash on such date; to (b) Consolidated Adjusted EBITDA for the period of four (4) consecutive fiscal quarters ending on or immediately prior to such date.

 

Consolidated Total Net Leverage Ratio Holiday” has the meaning assigned thereto in Section 9.14(a).” means, as of any date of determination, the ratio of: (a) Consolidated Total Funded Indebtedness minus Unrestricted Cash on such date; to (b) Consolidated Adjusted EBITDA for the period of four (4) consecutive fiscal quarters ending on or immediately prior to such date.

 

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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.

 

Control Agreement” means an agreement, satisfactory in form and substance to the Administrative Agent and executed by the financial institution or securities intermediary at which a Deposit Account or a Securities Account, as the case may be, is maintained, pursuant to which such financial institution or securities intermediary confirms and acknowledges the Administrative Agent’s security interest in such account, and agrees that the financial institution or securities intermediary, as the case may be, will comply with instructions originated by the Administrative Agent as to disposition of funds in such account, without further consent by the Borrower or any Subsidiary (it being agreed as between the Administrative Agent and the Credit Parties that the Administrative Agent shall not originate such instructions except upon the occurrence and during the continuance of an Event of Default).

 

Controlled Account” means each Deposit Account and Securities Account that is subject to a Control Agreement.

 

Credit Facility” means, collectively, the Revolving Credit Facility, the Term Loan Facility, the Swingline Facility, and the L/C Facility.

 

Credit Parties” means, collectively, the Borrower and the Subsidiary Guarantors.

 

“ Cross-Default Reference Obligation” has the meaning set forth in the definition of “ Permitted Convertible Indebtedness”.

 

Customer Lease Financing” means any sale of accounts receivable, chattel paper and other property arising from or relating to customer leases originated by the Borrower or any Subsidiary in the ordinary course of business to third party financing companies, and intended by the parties thereto to be a “true sale” and which do not materially interfere with the business of the Borrower and its Subsidiaries or adversely affect the Collateral (other than by virtue of being a disposition of property that would otherwise be Collateral to the extent such disposition is expressly permitted by this Agreement).

 

Debt Issuance” means the issuance of any Indebtedness for borrowed money by any Credit Party or any of its Subsidiaries.

 

Debtor Relief Laws” means the Bankruptcy Code of the United States of America, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect.

 

Default” means any of the events specified in Section 10.1 which with the passage of time, the giving of notice or any other condition, would constitute an Event of Default.

 

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Defaulting Lender” means, subject to Section 5.15(b), any Lender that: (a) has failed to: (i) fund all or any portion of the Revolving Credit Loans, any Term Loan, participations in L/C Obligations or participations in Swingline Loans required to be funded by it hereunder within two (2) Business Days of the date such Loans or participations 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 good-faith determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied; or (ii) pay to the Administrative Agent, any Issuing Lender, 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 (2) Business Days of the date when due; (b)   has notified the Borrower, the Administrative Agent, any Issuing Lender 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 good-faith 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 (3)    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); (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 FDIC or any other state or federal regulatory authority acting in such a capacity; or (e) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 5.15(b)) upon delivery of written notice of such determination to the Borrower, each Issuing Lender, the Swingline Lender and each Lender.

 

Deposit Account” means a demand, time, savings, passbook or similar account maintained with a Person engaged in the business of banking, including a savings bank, savings and loan association, credit union or trust company.

 

Discharge of the Obligations” means the termination of all Commitments, payment in full, in cash, of all of the Obligations (other than any unasserted contingent reimbursement or indemnity obligations) and the termination, expiration or Cash Collateralization of all Letters of Credit.

 

Discharge of the Secured Obligations” means the termination of all Commitments, payment in full, in cash, of all of the Obligations (other than any unasserted contingent reimbursement or indemnity obligations), the termination of all Secured Hedge Agreements and Secured Cash Management Agreements (or with respect to Secured Hedge Agreements and Secured Cash Management Agreements, other arrangements satisfactory to the applicable Hedge Banks and Cash Management Banks) and the termination, expiration or Cash Collateralization of all Letters of Credit.

 

Disclosure Letter” means the disclosure letter dated the Effective Date and delivered to the Administrative Agent and the Lenders in respect of this Agreement.

 

Disposition Consideration” means, with respect to any disposition of assets or series of related dispositions of assets, the lower of: (a) the aggregate fair market value of the assets sold, transferred, licensed, leased or otherwise disposed of in such disposition or series of related dispositions; and (b) the gross proceeds yielded to the Borrower or any Subsidiary from such disposition or series of related dispositions.

 

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Disqualified Equity Interests” means any Equity Interests that, by their terms (or by the terms of any security or other Equity Interest into which they are convertible or for which they are exchangeable) or upon the happening of any event or condition: (a) mature or are mandatorily redeemable (other than solely for Qualified Equity Interests), pursuant to a sinking fund obligation or otherwise (except as a result of a change of control, fundamental change, or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control, fundamental change, or asset sale event shall be subject to the prior Discharge of the Obligations); (b) are redeemable at the option of the holder thereof (other than solely for Qualified Equity Interests) (except as a result of a change of control, fundamental change, or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control, fundamental change, or asset sale event shall be subject to the prior Discharge of the Obligations), in whole or in part; (c) require any scheduled payment of dividends in cash; or (d) are or become convertible into or exchangeable for Indebtedness or any other Equity Interests that would constitute Disqualified Equity Interests, in each case, prior to the date that is ninety-one (91) days after the Term Loan Maturity Date; provided that if such Equity Interests are issued pursuant to a plan for the benefit of the Borrower or its Subsidiaries or by any such plan to such employees, such Equity Interests shall not constitute Disqualified Equity Interests solely because they may be required to be repurchased by the Borrower or its Subsidiaries in order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s termination, death or disability.

 

Disqualified Institution” means, on any date: (a) any Person designated by the Borrower as a “Disqualified Institution” by written notice delivered to the Administrative Agent on or prior to June 7, 2019; (b) any other Person that is a Competitor of the Borrower or any of its Subsidiaries, which Person has been designated by the Borrower as a “Disqualified Institution” by written notice (which notice shall specify such Person by exact legal name) to the Administrative Agent not less than five (5) Business Days prior to such date; and (c) in the case of any Person properly designated pursuant to clause (a) or (b) above, any Subsidiary or Affiliate of such Person, but only to the extent that such Subsidiary or Affiliate: (i)   has been designated by the Borrower as a “Disqualified Institution” by written notice (which notice shall specify such Person by exact legal name) to the Administrative Agent and posted by the Administrative Agent on the Platform (or otherwise provided by the Administrative Agent to each of the Lenders) not less than five (5) Business Days prior to such date; or (ii) is readily identifiable as a Subsidiary or Affiliate of such Person based on the legal name of such Subsidiary or Affiliate; provided that “Disqualified Institutions” shall exclude any Person that the Borrower has designated as no longer being a “Disqualified Institution” by written notice delivered to the Administrative Agent from time to time until such time as Borrower has subsequently provided written notice pursuant to the terms hereof that such Person is a “Disqualified Institution”; provided further that any bona fide debt Fund that is engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of business which is an Affiliate of, or is managed, sponsored or advised by any Affiliate of, any Person identified pursuant to clause (b) above or its Controlling owner, and for which no personnel involved with the competitive activities of such Person or Controlling owner: (x)     makes any investment decisions for such debt Fund; and (y) has access to any confidential information (other than publicly available information) relating to the Borrower and its Subsidiaries, shall be deemed not to be a Disqualified Institution by virtue of being a Subsidiary or Affiliate of a Person identified pursuant to clause (b) above; provided further that none of the foregoing Persons designated as a Disqualified Institution pursuant to clause (a), (b) or (c) above shall be a Disqualified Institution to the extent of any Commitments or Loans that were allocated to such Person, were assigned to such Person, or in which such Person was participating, in each case prior to the proper designation of such Person as a Disqualified Institution pursuant to clause (a), (b), or (c) above.

 

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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 Administrative Agent or the Issuing Lender, as the case may be, at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of Dollars with such Alternative Currency.

 

Dollars” or “$” means, unless otherwise qualified, dollars in lawful currency of the United States.

 

Domestic Subsidiary” means any Subsidiary organized under the laws of any political subdivision of the United States.

 

DQ List” has the meaning set forth in Section 12.9(f)(iv)(A).

 

Early Opt-in Election” means the occurrence of:

 

(a)                 (i) a determination by the Administrative Agent or (ii) a notification by the Required Lenders to the Administrative Agent (with a copy to the Borrower) that the Required Lenders have determined that U.S. dollar-denominated syndicated credit facilities being executed at such time, or that include language similar to that contained in Section 5.8(c) are being executed or amended, as applicable, to incorporate or adopt a new benchmark interest rate to replace LIBOR, and

 

(b)                 (i) the election by the Administrative Agent or (ii) the election by the Required Lenders to declare that an Early Opt-in Election has occurred and the provision, as applicable, by the Administrative Agent of written notice of such election to the Borrower and the Lenders or by the Required Lenders of written notice of such election to the Administrative Agent.

 

EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.

 

EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.

 

EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

 

Effective Date” has the meaning set forth in the introductory paragraph to this Agreement.

 

Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 12.9(b)(iii), (v) and (vi) (subject to such consents, if any, as may be required under Section 12.9(b)(iii)). For the avoidance of doubt, any Disqualified Institution is subject to Section 12.9(f).

 

Employee Benefit Plan” means (a) any employee benefit plan within the meaning of Section 3(3) of ERISA that is maintained for employees of any Credit Party or any ERISA Affiliate or (b) any Pension Plan or Multiemployer Plan that has at any time within the preceding seven (7) years been maintained, funded or administered for the employees of any Credit Party or any current or former ERISA Affiliate.

 

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Environmental Claims” means any and all administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, accusations, allegations, notices of noncompliance or violation, governmental investigations or proceedings (other than internal reports prepared by any Person in the ordinary course of business and not in response to any third party action or request of any kind) relating in any way to any actual or alleged violation of or liability under any Environmental Law or relating to any permit issued, or any approval given, under any such Environmental Law, including, without limitation, any and all claims by Governmental Authorities for enforcement, cleanup, removal, response, remedial or other actions or damages, contribution, indemnification, cost recovery, compensation or injunctive relief resulting from Hazardous Materials or arising from alleged injury or threat of injury to human health or the environment.

 

Environmental Laws” means any and all applicable federal, foreign, state, provincial and local laws, statutes, ordinances, codes, rules, standards and regulations, permits, licenses, approvals, interpretations and orders of courts or Governmental Authorities, relating to the protection of human health or the environment, including, but not limited to, requirements pertaining to the manufacture, processing, distribution, use, treatment, storage, disposal, transportation, handling, reporting, licensing, permitting, investigation or remediation of Hazardous Materials.

 

Equity Interests” 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; (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; and (f) any and all warrants, rights or options to purchase any of the foregoing (including through convertible securities, but excluding debt securities and other Indebtedness for borrowed money convertible into or exchangeable for any of the foregoing).

 

Equity Issuance” means (a) any issuance by the Borrower of shares of its Equity Interests to any Person that is not a Credit Party and (b) any capital contribution from any Person that is not a Credit Party into the Borrower. The term “Equity Issuance” shall not include (A) any Asset Disposition or (B) any Debt Issuance.

 

ERISA” means the Employee Retirement Income Security Act of 1974, and the rules and regulations thereunder.

 

ERISA Affiliate” means any Person who together with any Credit Party or any of its Subsidiaries is treated as a single employer within the meaning of Section 414(b), (c), (m) or (o) of the Code or Section 4001(b) of ERISA.

 

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.

 

Eurodollar Reserve Percentage” means, for any day, the percentage which is in effect for such day as prescribed by the Board of Governors of the Federal Reserve System (or any successor) for determining the maximum reserve requirement (including, without limitation, any basic, supplemental or emergency reserves) in respect of eurocurrency liabilities or any similar category of liabilities for a member bank of the Federal Reserve System in New York City.

 

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Event of Default” means any of the events specified in Section 10.1; provided that any requirement for passage of time, giving of notice, or any other condition, has been satisfied.

 

Excluded Accounts” means (a) escrow accounts and trust accounts; (b) payroll accounts; (c) accounts used for payroll taxes and/or withheld income taxes; (d) accounts used for employee wage and benefit payments; (e) accounts pledged to secure performance (including to secure letters of credit and bank guarantees) to the extent constituting Liens permitted by Section 9.2; (f) custodial accounts; (g) zero balance accounts, and (h) accounts established and used solely for Cash Management Services to the extent (i) a Lien thereon is prohibited by the applicable Cash Management Agreement governing such accounts and (ii) the amounts held in such accounts do not at any one time exceed $25,000,000 in the aggregate.

 

Exchange Act” means the Securities Exchange Act of 1934.

 

Excluded Foreign Subsidiary” means a Subsidiary of the Borrower that is: (a) a CFC; or (b) owned directly or indirectly by a CFC, irrespective of whether it is a Domestic Subsidiary or a Foreign Subsidiary.

 

Excluded Subsidiary” means any Subsidiary of the Borrower that is: (a) an Immaterial Subsidiary; (b) a Foreign Subsidiary Holding Company; (c) an Excluded Foreign Subsidiary; or (d) a Special Purpose Receivables Subsidiary.

 

Excluded Swap Obligation” means, with respect to any Credit Party, any Swap Obligation if, and to the extent that, all or a portion of the liability of such Credit Party for or the guarantee of such Credit Party of, or the grant by such Credit Party of a security interest to secure, such Swap Obligation (or any liability or guarantee thereof) 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 Credit Party’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 liability for or the guarantee of such Credit Party or the grant of such security interest becomes effective with respect to such Swap Obligation (such determination being made after giving effect to any applicable keepwell, support or other agreement for the benefit of the applicable Credit Party, including under Section 1(d) of the Guaranty Agreement). 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 guarantee or security interest is or becomes illegal for the reasons identified in the immediately preceding sentence of this definition.

 

Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient: (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case: (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof); or (ii) that are Other Connection Taxes; (b) in the case of a Lender, United States federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to an Applicable Law in effect on the date on which: (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under Section 5.12(b)); or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 5.11, amounts with respect to such Taxes were payable either to such Lender's assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office; (c) Taxes attributable to such Recipient’s failure to comply with Section 5.11(g); and (d) any United States federal withholding Taxes imposed under FATCA.

 

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Existing Credit Agreement” has the meaning assigned thereto in the introductory paragraph.

 

Extended Revolving Credit Commitment” means any Class of Revolving Credit Commitments the maturity of which shall have been extended pursuant to Section 5.16.

 

Extended Revolving Credit Loans” means any Revolving Credit Loans made pursuant to the Extended Revolving Credit Commitments.

 

Extended Term Loans” means any Class of Term Loans the maturity of which shall have been extended pursuant to Section 5.16.

 

Extension” has the meaning set forth in Section 5.16(a).

 

Extension Amendment” means an amendment to this Agreement (which may, at the option of the Administrative Agent and the Borrower, be in the form of an amendment and restatement of this Agreement) among the Credit Parties, the applicable extending Lenders, the Administrative Agent and, to the extent required by Section 5.16, the Issuing Lender and/or the Swingline Lender implementing an Extension in accordance with Section 5.16.

 

Extension Offer” has the meaning set forth in Section 5.16(a).

 

Extensions of Credit” means, as to any Lender at any time, (a) an amount equal to the sum of (i) the aggregate principal amount of all Revolving Credit Loans made by such Lender then outstanding, (ii) such Lender’s Revolving Credit Commitment Percentage of the L/C Obligations then outstanding, (iii)  such Lender’s Revolving Credit Commitment Percentage of the Swingline Loans then outstanding and (iv) the aggregate principal amount of the Term Loans made by such Lender then outstanding, or (b) the making of any Loan or participation in any Letter of Credit by such Lender, as the context requires.

 

Fair Market Value” shall mean the current value that would be attributed to the Receivables Assets by an independent and unaffiliated third party purchasing the Receivables Assets in an arms-length sale transaction, as determined in good faith by the Borrower.

 

FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations promulgated thereunder or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code.

 

FDA” means the Food and Drug Administration of the United States or any successor entity thereto.

 

FDIC” means the Federal Deposit Insurance Corporation.

 

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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 (or, if such day is not a Business Day, for the immediately preceding Business Day), as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that if such rate is not so published for any day which is a Business Day, the average of the quotation for such day on such transactions received by the Administrative Agent from three federal funds brokers of recognized standing selected by the Administrative Agent. Notwithstanding the foregoing, if the Federal Funds Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.

 

Federal Reserve Bank of New York’s Website” means the website of the Federal Reserve Bank of New York at http://www.newyorkfed.org, or any successor source.

 

Fee Letters” means: (a) that certain fee letter agreement, dated June 7, 2019, by and between the Borrower and Wells Fargo Securities, LLC; (b) that certain fee letter agreement dated June 7, 2019, by and between the Borrower and JPMorgan Chase Bank, N.A., (c) that certain fee letter agreement, dated June 7, 2019, by and between the Borrower and Citizens Bank, N.A. and (d) any letter between the Borrower and any Issuing Lender relating to certain fees payable to such Issuing Lender in its capacity as such.

 

Fiscal Year” means the fiscal year of the Borrower and its Subsidiaries ending on December 31.

 

Foreign Casualty Event” means any Insurance and Condemnation Event resulting in the receipt of Net Cash Proceeds by a Foreign Subsidiary and giving rise to a prepayment pursuant to Section 4.4(b)(ii).

 

Foreign Disposition” means any Asset Disposition resulting in the receipt of Net Cash Proceeds by a Foreign Subsidiary and giving rise to a prepayment pursuant to Section 4.4(b)(ii).

 

Foreign Lender” means: (a) if the Borrower is a U.S. Person, a Lender that is not a U.S. Person; and (b) if the Borrower is not a U.S. Person, a Lender that is resident or organized under the laws of a jurisdiction other than that in which the Borrower is resident for tax purposes.

 

Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.

 

Foreign Subsidiary Holding Company” means any direct or indirect Subsidiary of the Borrower, all or substantially all of the assets of which consist of, directly or indirectly, the Equity Interests in one or more CFCs and any of such CFCs’ Subsidiaries.

 

Fronting Exposure” means, at any time there is a Defaulting Lender: (a) with respect to any Issuing Lender, such Defaulting Lender’s Revolving Credit Commitment Percentage of the outstanding L/C Obligations with respect to Letters of Credit issued by such Issuing Lender, other than such L/C Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof; and (b) with respect to the Swingline Lender, such Defaulting Lender’s Revolving Credit Commitment Percentage of outstanding Swingline Loans other than Swingline Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof.

 

Fund” means any Person (other than a natural Person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans, bonds and similar extensions of credit in the ordinary course of its activities.

 

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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 or such other principles as may be approved by a significant segment of the accounting profession in the United States, that are applicable to the circumstances as of the date of determination, consistently applied.

 

Governmental Approvals” means all authorizations, consents, approvals, permits, licenses and exemptions of, and all registrations and filings with or issued by, any Governmental Authorities.

 

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 supranational bodies such as the European Union or the European Central Bank).

 

Guarantee” of or by any Person (the “guarantor”) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect: (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof; (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof; (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation; (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or obligation; or (e) for the purpose of assuming 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 (whether in whole or in part); provided that the term “Guarantee” shall not include endorsements for collection or deposit, in either case, in the ordinary course of business, or customary and reasonable indemnity obligations in connection with any disposition of assets permitted under this Agreement (other than any such obligations with respect to Indebtedness).

 

Guaranty Agreement” means the unconditional guaranty agreement dated as of the Original Closing Date executed by the Borrower and the Subsidiary Guarantors in favor of the Administrative Agent, for the ratable benefit of the Secured Parties, which shall be in form and substance acceptable to the Administrative Agent.

 

Hazardous Materials” means any substances or materials (a) which are or become defined as hazardous wastes, hazardous substances, pollutants, contaminants, chemical substances or mixtures or toxic substances under any Environmental Law, (b) which are toxic, explosive, corrosive, flammable, infectious, radioactive, carcinogenic, mutagenic or otherwise harmful to human health or the environment and are or become regulated by any Governmental Authority, (c) the presence of which require investigation or remediation under any Environmental Law or common law, (d) the discharge or emission or release of which requires a permit or license under any Environmental Law or other Governmental Approval, (e) which are deemed by a Governmental Authority to constitute a nuisance or a trespass which pose a health or safety hazard to Persons or neighboring properties, or (f) which contain, without limitation, asbestos, polychlorinated biphenyls, urea formaldehyde foam insulation, petroleum hydrocarbons, petroleum derived substances or waste, crude oil, nuclear fuel, natural gas or synthetic gas.

 

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Hedge Agreement” 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, which are subject to the terms 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; provided that, the term “Hedge Agreement” shall not include any Permitted Equity Derivatives.

 

Hedge Bank” means any Person that: (a) at the time it enters into a Hedge Agreement with a Credit Party or a Subsidiary thereof permitted under Article IX, is the Administrative Agent or an Affiliate of the Administrative Agent (unless the Administrative Agent provides written notice to the Borrower that the Administrative Agent has designated such Hedge Agreement as not constituting a Secured Hedge Agreement); (b) at the time it enters into a Hedge Agreement with a Credit Party or a Subsidiary thereof permitted under Article IX, is a Lender or an Affiliate of a Lender, and is designated by written notice to the Administrative Agent from the Borrower and such Person as a “Hedge Bank”; or

 

(c)   at the time it (or its Affiliate) becomes a Lender (including on the Effective Date), is a party to a Hedge Agreement with a Credit Party or a Subsidiary thereof, in each case in its capacity as a party to such Hedge Agreement, and is designated by written notice to the Administrative Agent from the Borrower and such Person as a “Hedge Bank.”

 

Hedge Termination Value” means, in respect of any one or more Hedge Agreements, after taking into account the effect of any legally enforceable netting agreement relating to such Hedge Agreements: (a) for any date on or after the date such Hedge Agreements have been closed out and termination value(s) determined in accordance therewith, such termination value(s); and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Hedge Agreements, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Hedge Agreements (which may include a Lender or any Affiliate of a Lender).

 

HIPAA” means the Health Insurance Portability and Accountability Act of 1996, as the same may be amended, modified or supplemented from time to time, any successor statute thereto, any and all rules or regulations promulgated from time to time thereunder, and any comparable state laws.

 

Immaterial Acquisition” means any Permitted Acquisition for which the Permitted Acquisition Consideration is less than $25,000,000.

 

Immaterial Subsidiary” means, as of any date of determination, any Subsidiary that, on a Consolidated basis with its Subsidiaries, does not have: (a) assets in excess of 5% of Consolidated Total Assets as set forth on the most recent financial statements delivered pursuant to Section 8.1(a); or (b) annual revenues in excess of 5% of the Consolidated revenues of the Borrower and its Subsidiaries as set forth on the most recent financial statements delivered pursuant to Section 8.1(a) and has been designated in writing as an “Immaterial Subsidiary” to the Administrative Agent; provided that if at any time: (i) the aggregate amount of revenues or assets attributable to all Subsidiaries designated as Immaterial Subsidiaries exceeds: (A) 10% of Consolidated revenues of the Borrower and its Subsidiaries for any such Fiscal Year; or (B) 10% of Consolidated Total Assets as of the end of any such Fiscal Year, then the Borrower shall revoke the designation of sufficient Immaterial Subsidiaries to eliminate such excess and shall take all actions required by Section 8.14 with respect to each such Subsidiary.

 

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Increased Amount Date” has the meaning assigned thereto in Section 5.13(b).

 

Incremental Lender” has the meaning assigned thereto in Section 5.13(b).

 

Incremental Loan Commitments” has the meaning assigned thereto in Section 5.13(a)(ii).

 

Incremental Loans” has the meaning assigned thereto in Section 5.13(a)(ii).

 

Incremental Revolving Credit Commitment” has the meaning assigned thereto in Section 5.13(a)(ii).

 

Incremental Revolving Credit Increase” has the meaning assigned thereto in Section 5.13(a)(ii).

 

Incremental Term Loan” has the meaning assigned thereto in Section 5.13(a)(i).

 

Incremental Term Loan Commitment” has the meaning assigned thereto in Section 5.13(a)(i).

 

Indebtedness” means, with respect to any Person at any date and without duplication, the sum of the following:

 

(a)                 all liabilities, obligations and indebtedness for borrowed money including, but not limited to, obligations evidenced by bonds, debentures, notes or other similar instruments of any such Person;

 

(b)                 all obligations to pay the deferred purchase price of property or services of any such Person, except: (i) operating leases, licenses, trade payables, and accrued liabilities, in each case arising in the ordinary course of business not more than one hundred twenty (120) days past due, or that are currently being contested in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided for on the books of such Person; (ii) deferred compensation payable to directors, officers and employees of the Borrower or any Subsidiary so long as such compensation: (A) is incurred in the ordinary course of business and pursuant to any incentive compensation plan adopted by the board of directors of the Borrower in the ordinary course of business; and (B) is not evidenced by a note or similar written instrument (other than such incentive compensation plan’s governing documentation or any grant notices issued thereunder); (iii) any purchase price adjustment, earn-out, holdback or deferred payment of a similar nature incurred in connection with an Acquisition permitted under this Agreement so long as not evidenced by a note or similar written instrument (except to the extent that the amount payable pursuant to such purchase price adjustment, earn-out, holdback or deferred payment is reflected, or would otherwise be required to be reflected, on a balance sheet prepared in accordance with GAAP); and (iv) obligations in respect of non-competition agreements or similar arrangements (except for such payments that are accounted for as acquisition consideration under GAAP);

 

(c)                 such Person’s Capital Lease Obligations and the Attributable Indebtedness of such Person with respect to such Person’s Synthetic Leases;

 

(d)                 all obligations of such Person under conditional sale or other title retention agreements relating to property purchased by such Person to the extent of the value of such property (other than customary reservations or retentions of title under agreements with suppliers entered into in the ordinary course of business and non-exclusive licenses and operating leases arising in the ordinary course of business);

 

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(e)                 all Indebtedness of any other Person secured by a Lien on any asset owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements except trade payables arising in the ordinary course of business), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse;

 

(f)                  all obligations, contingent or otherwise, of any such Person relative to the face amount of letters of credit, whether or not drawn, including, without limitation, any Reimbursement Obligation, and banker’s acceptances, bank guarantees and similar instruments issued for the account of any such Person;

 

(g)                  all obligations of any such Person in respect of Disqualified Equity Interests;

 

(h)                  all net obligations of such Person under any Hedge Agreements; and

 

(i)                  all Guarantees of any such Person with respect to any of the foregoing.

 

For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, unless such Indebtedness is expressly made non-recourse to such Person. The amount of any net obligation under any Hedge Agreement on any date shall be deemed to be the Hedge Termination Value thereof as of such date.

 

Indemnified Taxes” means: (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Credit Party under any Loan Document; and (b) to the extent not otherwise described in clause (a), Other Taxes.

 

Indemnitee” has the meaning assigned thereto in Section 12.3(b).

 

Information” has the meaning assigned thereto in Section 12.10.

 

Initial Issuing Lenders” means Wells Fargo, Citizens and JPMorgan, each in its capacity as an Issuing Lender, or any successor thereto.

 

Insurance and Condemnation Event” means the receipt by any Credit Party or any of its Subsidiaries of any cash insurance proceeds or condemnation award payable by reason of theft, loss, physical destruction or damage, taking or similar event with respect to any of their respective Property.

 

Interest Period” means, as to each LIBOR Rate Loan, the period commencing on the date such LIBOR Rate Loan is disbursed or converted to or continued as a LIBOR Rate Loan and ending on the date one (1), two (2), three (3), or six (6) months thereafter (or if available and agreed to by all of the relevant Lenders, twelve (12) months thereafter), in each case as selected by the Borrower in its Notice of Borrowing or Notice of Conversion/Continuation and subject to availability; provided that:

 

(a)                 the Interest Period shall commence on the date of advance of or conversion to any LIBOR Rate Loan and, in the case of immediately successive Interest Periods, each successive Interest Period shall commence on the date on which the immediately preceding Interest Period expires;

 

(b)                 if any Interest Period would otherwise expire on a day that is not a Business Day, such Interest Period shall expire on the next succeeding Business Day; provided that if any Interest Period with respect to a LIBOR Rate Loan would otherwise expire on a day that is not a Business Day but is a day of the month after which no further Business Day occurs in such month, such Interest Period shall expire on the immediately preceding Business Day;

 

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(c)                 any Interest Period with respect to a LIBOR Rate Loan 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 relevant calendar month at the end of such Interest Period;

 

(d)                 no Interest Period shall extend beyond the Revolving Credit Maturity Date or the Term Loan Maturity Date, as applicable; and

 

(e)                 there shall be no more than six (6) Interest Periods in effect at any time.

 

Investments” has the meaning assigned thereto in Section 9.3.

 

IRS” means the United States Internal Revenue Service.

 

ISP98” means the International Standby Practices (1998 Revision, effective January 1, 1999), International Chamber of Commerce Publication No. 590.

 

Issuing Lender” means: (a) the Initial Issuing Lenders; and/or (b) any other Revolving Credit Lender, or any successor or affiliate thereto, that has agreed in its sole discretion to act as an “Issuing Lender” hereunder and that has been approved in writing by the Borrower and the Administrative Agent (such approval by the Administrative Agent not to be unreasonably delayed or withheld) as an “Issuing Lender” hereunder, in each case in its capacity as issuer of any Letter of Credit.

 

JPMorgan” means JPMorgan Chase Bank, a national banking association.

 

Judgment Currency” has the meaning assigned thereto in Section 12.22.

 

Latest Maturity Date” means, at any date of determination, the later of the Revolving Credit Maturity Date and the latest Term Loan Maturity Date.

 

L/C Commitment” means, as to any Issuing Lender, the obligation of such Issuing Lender to issue Letters of Credit for the account of the Borrower or one or more of its Subsidiaries from time to time in an aggregate amount equal to: (a) for the Initial Issuing Lenders, the amount set forth opposite the name of each Initial Issuing Lender on Schedule 1.1(a); and (b) for any other Issuing Lender becoming an Issuing Lender after the Effective Date, such amount as separately agreed to in a written agreement between the Borrower and such Issuing Lender (which such agreement shall be promptly delivered to the Administrative Agent upon execution), in each case of clauses (a) and (b) above, any such amount may be changed after the Effective Date in a written agreement between the Borrower and such Issuing Lender (which such agreement shall be promptly delivered to the Administrative Agent upon execution); provided that the L/C Commitment with respect to any Person that ceases to be an Issuing Lender for any reason pursuant to the terms hereof shall be $0 (subject to the Letters of Credit of such Person remaining outstanding in accordance with the provisions hereof).

 

L/C Facility” means the letter of credit facility established pursuant to Article III.

 

L/C Obligations” means at any time, an amount equal to the Dollar Equivalent amount of the sum of: (a) the aggregate undrawn and unexpired amount of the then outstanding Letters of Credit; and (b)    the aggregate amount of drawings under Letters of Credit which have not then been reimbursed pursuant to Section 3.5. For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of ISP98, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.

 

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L/C Participants” means, with respect to any Letter of Credit, the collective reference to all the Revolving Credit Lenders other than the applicable Issuing Lender.

 

L/C Sublimit” means the lesser of: (a) $15,000,000.00; and (b) the Revolving Credit Commitment.

 

Lender Joinder Agreement” means a joinder agreement in form and substance reasonably satisfactory to the Administrative Agent delivered in connection with Section 5.13.

 

Lender” means each Person executing this Agreement as a Lender on the Effective Date and any other Person that shall have become a party to this Agreement as a Lender pursuant to an Assignment and Assumption or pursuant to Section 5.13, other than any Person that ceases to be a party hereto as a Lender pursuant to an Assignment and Assumption. Unless the context otherwise requires, the term “Lenders” includes the Swingline Lender.

 

Lending Office” means, with respect to any Lender, the office of such Lender maintaining such Lender’s Extensions of Credit.

 

Letter of Credit Application” means an application, in the form specified by the applicable Issuing Lender from time to time, requesting such Issuing Lender to issue a Letter of Credit.

 

Letters of Credit” means the collective reference to letters of credit issued pursuant to Section 3.1.

 

LIBOR” means, subject to the implementation of a Benchmark Replacement in accordance with Section 5.8(c):

 

(a)                 for any interest rate calculation with respect to a LIBOR Rate Loan, the rate of interest per annum determined on the basis of the rate for deposits in Dollars for a period equal to the applicable Interest Period as published by the ICE Benchmark Administration Limited, a United Kingdom company, or a comparable or successor quoting service approved by the Administrative Agent, at approximately 11:00 a.m. (London time) two (2) London Banking Days prior to the first day of the applicable Interest Period. If, for any reason, such rate does not appear on Reuters Screen LIBOR01 Page (or any applicable successor page), then “LIBOR” shall be determined by the Administrative Agent to be the arithmetic average of the rate per annum at which deposits in Dollars in amounts comparable to the principal amount of the LIBOR Rate Loan would be offered by first class banks in the London interbank market to the Administrative Agent at approximately 11:00 a.m. (London time) two (2) London Banking Days prior to the first day of the applicable Interest Period for a period equal to such Interest Period; and

 

(b)                 for any interest rate calculation with respect to a Base Rate Loan, the rate of interest per annum determined on the basis of the rate for deposits in Dollars in amounts comparable to the principal amount of the Base Rate Loan for an Interest Period equal to one month (commencing on the date of determination of such interest rate) as published by ICE Benchmark Administration Limited, a United Kingdom company, or a comparable or successor quoting service approved by the Administrative Agent, at approximately 11:00 a.m. (London time) on such date of determination, or, if such date is not a Business Day, then the immediately preceding Business Day. If, for any reason, such rate does not appear on Reuters Screen LIBOR01 Page (or any applicable successor page) then “LIBOR” for such Base Rate Loan shall be determined by the Administrative Agent to be the arithmetic average of the rate per annum at which deposits in Dollars would be offered by first class banks in the London interbank market to the Administrative Agent at approximately 11:00 a.m. (London time) on such date of determination for a period equal to one month commencing on such date of determination.

 

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Each calculation by the Administrative Agent of LIBOR shall be conclusive and binding for all purposes, absent manifest error.

 

Notwithstanding the foregoing, (x) in no event shall LIBOR (including, without limitation, any Benchmark Replacement with respect thereto) be less than 0% and (y) unless otherwise specified in any amendment to this Agreement entered into in accordance with Section 5.8(c), in the event that a Benchmark Replacement with respect to LIBOR is implemented then all references herein to LIBOR shall be deemed references to such Benchmark Replacement.

 

LIBOR Rate” means a rate per annum determined by the Administrative Agent pursuant to the following formula:

 

  LIBOR Rate = LIBOR  
    1.00-Eurodollar Reserve Percentage  

 

LIBOR Rate Loan” means any Loan bearing interest at a rate based upon the LIBOR Rate (other than a Base Rate Loan for which interest is determined by reference to LIBOR), as provided in Section 5.1(a).

 

Lien” means, with respect to any asset, any mortgage, leasehold mortgage, lien, pledge, charge, security interest, hypothecation or encumbrance of any kind in respect of such asset; provided, however, in no event shall an operating lease or non-exclusive license be deemed to constitute a Lien. For the purposes of this Agreement, a Person shall be deemed to own subject to a Lien any asset which it has acquired or holds subject to the interest of a vendor or lessor under any conditional sale agreement, Capital Lease or other title retention agreement (other than an operating lease) relating to such asset.

 

Limited Condition Acquisition” means any Permitted Acquisition or other Investment that is not conditioned on the availability of, or on obtaining, third-party financing.

 

Loan Documents” means, collectively, this Agreement, the Disclosure Letter, each Note, the Letter of Credit Applications and each reimbursement agreement and each other document and certificate executed by any Credit Party relating to any Letter of Credit, the Security Documents, the Guaranty Agreement, the Fee Letters, any Lender Joinder Agreement and each other document, instrument, certificate and agreement executed and delivered by any Credit Party or any of its Subsidiaries in connection with this Agreement (whether in favor of the Administrative Agent or any Secured Party or otherwise) (excluding any Secured Hedge Agreement and any Secured Cash Management Agreement).

 

Loans” means the collective reference to the Revolving Credit Loans, the Term Loan and the Swingline Loans, and “Loan” means any of such Loans.

 

London Banking Day” means any day on which dealings in Dollar deposits are conducted by and between banks in the London interbank Eurodollar market.

 

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Material Adverse Effect” means, with respect to the Borrower and its Subsidiaries: (a) a material adverse effect on the business, results of operations, assets, properties, liabilities, or condition (financial or otherwise) of the Borrower and its Subsidiaries taken as a whole; (b) a material adverse effect on the ability of any Credit Party to perform its obligations under the Loan Documents to which it is a party; (c) a material impairment of the rights and remedies of the Administrative Agent or any Lender under any Loan Document; or (d) a material adverse effect on the legality, validity, binding effect or enforceability against any Credit Party of any Loan Document to which it is a party.

 

Material Contract” means: (a) any material contract or agreement which the Borrower may file or be required to file with the SEC under the Exchange Act or the Securities Act of 1933 (other than any management contract or compensatory plan, contract or arrangement); or (b) any other contract or agreement, written or oral, of any Credit Party or any of its Subsidiaries, the breach, non-performance, cancellation or failure to renew of which could reasonably be expected to have a Material Adverse Effect.

 

Material Real Property” means real property owned in fee by any Credit Party with a fair market value of $25,000,000 or greater.

 

Minimum Collateral Amount” means, at any time: (a) with respect to Cash Collateral consisting of cash or deposit account balances, an amount equal to 102% of the sum of: (i) the Fronting Exposure of the Issuing Lender with respect to Letters of Credit issued and outstanding at such time; and (ii) the Fronting Exposure of the Swingline Lender with respect to all Swingline Loans outstanding at such time; and (b) otherwise, an amount determined by the Administrative Agent and each of the applicable Issuing Lenders that is entitled to Cash Collateral hereunder at such time in their sole discretion.

 

Moody’s” means Moody’s Investors Service, Inc.

 

Mortgages” means the collective reference to each mortgage, deed of trust or other real property security document, encumbering any real property now or hereafter owned by any Credit Party, in each case, in form and substance reasonably satisfactory to the Administrative Agent and executed by such Credit Party in favor of the Administrative Agent, for the ratable benefit of the Secured Parties, as any such document may be amended, restated, supplemented or otherwise modified from time to time.

 

Multiemployer Plan” means a “multiemployer plan” as defined in Section 4001(a)(3) of ERISA to which any Credit Party or any ERISA Affiliate is making, or is accruing an obligation to make, or has accrued an obligation to make contributions within the preceding seven (7) years.

 

Net Cash Proceeds” means, as applicable: (a) with respect to any Asset Disposition or Insurance and Condemnation Event, the gross proceeds received by any Credit Party or any of its Subsidiaries therefrom consisting of (x) cash, (y) Cash Equivalents and (z) any cash or Cash Equivalent payments received by way of a deferred payment pursuant to, or by monetization of, a note receivable or otherwise, as and when received, but excluding any interest and royalty payments, less the sum of: (i) in the case of an Asset Disposition only, all income taxes and other taxes assessed by, or reasonably estimated to be payable to, a Governmental Authority as a result of such transaction (provided that if such estimated taxes exceed the amount of actual taxes required to be paid in cash in respect of such Asset Disposition, the amount of such excess shall constitute Net Cash Proceeds); (ii) all reasonable and customary out-of-pocket legal and other fees and expenses incurred in connection with such transaction or event; (iii)  the principal amount of, premium, if any, and interest on any Indebtedness (other than any Indebtedness arising under the Loan Documents) that is required to be repaid in connection with such transaction or event and that is secured by Liens on the Collateral prior to or equal and ratable with any Lien of the Administrative Agent in such assets (provided that if such Indebtedness is secured by a Lien on the asset that is equal and ratable to the Lien of the Administrative Agent on such asset, then any such repayment of Indebtedness shall be limited to such Indebtedness’ ratable share of such gross proceeds); (iv) reasonable reserves retained from such gross proceeds to fund contingent liabilities directly attributable to such Asset Disposition or Insurance and Condemnation Event and reasonably estimated to be payable (provided that, to the extent and at the time any such amounts are released from such reserve, such amounts shall constitute Net Cash Proceeds); and (v) other costs, expenses and taxes incurred by the Borrower and its Subsidiaries (or any of their respective affiliates or equity partners) as a direct result of actions taken by the Borrower and its Subsidiaries (and any of their affiliates or equity partners) pursuant to Section 4.4(b)(iv); and (b) with respect to any Debt Issuance, the gross cash proceeds received by any Credit Party or any of its Subsidiaries therefrom less all reasonable and customary out-of-pocket legal, underwriting and other fees and expenses incurred in connection therewith.

 

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Non-Consenting Lender” means any Lender that does not approve any consent, waiver, amendment, modification or termination that: (a) requires the approval of all Lenders or all affected Lenders or all Lenders or all affected Lenders with respect to a certain Class or Series in accordance with the terms of Section 12.2; and (b) has been approved by the Required Lenders.

 

Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such time.

 

Non-Guarantor Subsidiary” means any Subsidiary of the Borrower that is not a Subsidiary Guarantor.

 

Notes” means the collective reference to the Revolving Credit Notes, the Swingline Note and the Term Loan Notes.

 

Notice of Account Designation” has the meaning assigned thereto in Section 2.3(b).

 

Notice of Borrowing” has the meaning assigned thereto in Section 2.3(a).

 

Notice of Conversion/Continuation” has the meaning assigned thereto in Section 5.2.

 

Notice of Prepayment” has the meaning assigned thereto in Section 2.4(c).

 

Obligations” means, in each case, whether now in existence or hereafter arising: (a) the principal of and interest on (including interest accruing after the filing of any bankruptcy or similar petition, whether or not allowable in such proceeding) the Loans; (b) the L/C Obligations; and (c) all other fees and commissions (including reasonable attorneys’ fees), charges, indebtedness, loans, liabilities, financial accommodations, obligations, covenants and duties owing by the Credit Parties and each of their respective Subsidiaries to the Lenders, the Issuing Lender or the Administrative Agent, in each case under any Loan Document, with respect to any Loan or Letter of Credit of every kind, nature and description, direct or indirect, absolute or contingent, due or to become due, contractual or tortious, liquidated or unliquidated, and whether or not evidenced by any note and including interest and fees that accrue after the commencement by or against any Credit Party or any Subsidiary thereof 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.

 

OFAC” means the U.S. Department of the Treasury’s Office of Foreign Assets Control.

 

Officer’s Compliance Certificate” means a certificate of the chief executive officer, chief financial officer, treasurer, or controller of the Borrower substantially in the form attached as Exhibit F.

 

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Operating Lease” means, as to any Person as determined in accordance with GAAP, any lease of Property (whether real, personal or mixed) by such Person as lessee which is not a capital lease.

 

Original Closing Date” has the meaning assigned thereto in the introductory paragraph.

 

Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising solely from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).

 

Other Taxes” means all present or future stamp, court, documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 5.12).

 

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 or the Issuing Lender, as the case may be, in accordance with banking industry rules on interbank compensation; and (b) with respect to any amount denominated in an Alternative Currency, the rate of interest per annum at which overnight deposits in the applicable Alternative Currency, in an amount approximately equal to the amount with respect to which such rate is being determined, would be offered for such day by a branch or Affiliate of Wells Fargo in the applicable offshore interbank market for such currency to major banks in such interbank market.

 

Participant” has the meaning assigned thereto in Section 12.9(d).

 

Participant Register” has the meaning assigned thereto in Section 12.9(d).

 

PATRIOT Act” means the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)).

 

PBGC” means the Pension Benefit Guaranty Corporation or any successor agency.

 

Pension Plan” means any Employee Benefit Plan, other than a Multiemployer Plan, which is subject to the provisions of Title IV of ERISA or Section 412 of the Code and which (a) is maintained, funded or administered for the employees of any Credit Party or any ERISA Affiliate or (b) has at any time within the preceding seven (7) years been maintained, funded or administered for the employees of any Credit Party or any current or former ERISA Affiliates.

 

Perfection Certificate” means, with respect to any Credit Party, a certificate, substantially in the form of Exhibit J to this Agreement, completed and supplemented with schedules and attachments contemplated thereby and duly executed on behalf of such Credit Party by a Responsible Officer of such Credit Party.

 

Permitted Acquisition” means: any Acquisition that meets all of the following requirements:

 

(a)                 After giving effect to such Acquisition, on a Pro Forma Basis, calculated for the most recent fiscal quarter end for which financial statements are required to have been, or have been, delivered under Section 8.1, (A) the Consolidated Total Net Leverage Ratio shall be no greater than 0.25 to 1.00 less than the level set forth in Section 9.14(a) for such period (as such level may be adjusted during a Consolidated Total Net Leverage Ratio Holiday, if applicable at such time (whether due to a prior Acquisition or elected in writing to be applicable to such Acquisition)); and (B) the Borrower shall be in compliance with the covenantcovenants set forth in Section 9.14(b), in each case under this clause (a), as of either (x) the date of the Acquisition and after giving effect thereto and any Indebtedness incurred in connection therewith or (y) in the case of a Limited Condition Acquisition, the date the Permitted Acquisition Documents are entered into and after giving pro forma effect to such Acquisition and any Indebtedness incurred in connection therewith;

 

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(b)                 either (i) no Default or Event of Default shall have occurred and be continuing both before and after giving effect to such Acquisition and any Indebtedness incurred in connection therewith or (ii) in the case of a Limited Condition Acquisition, (x) no Default of Event of Default shall have occurred and be continuing on the date the Permitted Acquisition Documents are entered into and after giving pro forma effect to such Acquisition and any Indebtedness incurred in connection therewith and (y) no Event of Default under Section 10.1(a), (b), (h) or (i) shall have occurred and be continuing both before and after giving pro forma effect to such Acquisition and any Indebtedness incurred in connection therewith;

 

(c)                 the Borrower shall have: (i) delivered to the Administrative Agent a certificate of a Responsible Officer certifying that all of the requirements set forth above have been satisfied or will be satisfied on or prior to the consummation of such purchase or other Acquisition (including, other than in the case of an Immaterial Acquisition, calculations in reasonable detail demonstrating compliance with clause (a) above); and (ii) provided such other customary documents and other customary information as may be reasonably requested by the Administrative Agent or the Required Lenders (through the Administrative Agent) in connection with such purchase or other Acquisition.

 

Permitted Acquisition Consideration” means the aggregate amount of the purchase price, including, but not limited to, any assumed debt, earn-outs (provided that to the extent such earn-out is subject to a contingency, such earn-out shall be valued at the amount of reserves, if any, required under GAAP at the date of such acquisition), payments in respect of non-competition agreements or other arrangements accounted for as acquisition consideration under GAAP, deferred payments (valued at the discounted present value thereof), or Equity Interests of the Borrower, to be paid on a singular basis in connection with any applicable Permitted Acquisition as set forth in the applicable Permitted Acquisition Documents executed by the Borrower or any of its Subsidiaries in order to consummate the applicable Permitted Acquisition (but excluding ongoing royalty payments).

 

Permitted Acquisition Documents” means with respect to any Acquisition or other Investment proposed by the Borrower or any Subsidiary, final copies or substantially final drafts if not executed at the required time of delivery of the purchase agreement, sale agreement, merger agreement or other agreement evidencing such Acquisition or other Investment, including, without limitation, each other document executed, delivered, contemplated by or prepared in connection therewith and any amendment, modification or supplement to any of the foregoing.

 

“Permitted Convertible Indebtedness” means any Permitted Unsecured Indebtedness in the form of notes issued by Borrower that are convertible into a fixed number (subject to customary anti-dilution adjustments, “make-whole” increases and other customary changes thereto) of shares of common stock of Borrower (or other securities or property following a merger event or other change of the common stock of Borrower), cash or any combination thereof (with the amount of such cash or such combination determined by reference to the market price of such common stock or such other securities); provided that, the Indebtedness thereunder must satisfy each of the following conditions: (i) such Indebtedness is not guaranteed by any Subsidiary of Borrower, (ii) any cross-default or cross-acceleration event of default (each howsoever defined) provision contained therein that relates to indebtedness or other payment obligations of Borrower (such indebtedness or other payment obligations, a “Cross-Default Reference Obligation”) contains a cure period of at least thirty (30) calendar days (after written notice to the issuer of such Indebtedness by the trustee or to such issuer and such trustee by holders of at least 25% in aggregate principal amount of such Indebtedness then outstanding) before a default, event of default, acceleration or other event or condition under such Cross-Default Reference Obligation results in an event of default under such cross-default or cross-acceleration provision and (iii) the terms, conditions and covenants of such Indebtedness must be customary for convertible Indebtedness of such type, as determined in good faith by the Borrower ..

 

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Permitted Equity Derivative” means any forward purchase, accelerated share repurchase, call option, warrant or other derivative transactions in respect of the Borrower’s Equity Interests; provided, that (x) the terms, conditions and covenants of each such transaction shall be customary for transactions of such type, as determined by the Borrower in good faith, (y) such transaction may, at the option of the Borrower, be settled in Equity Interests of the Borrower and any Restricted Payments made in connection with(z) such transaction is entered into contemporaneously and otherwise in connection with the issuance of Permitted Convertible Indebtedness or the Restricted Payments in respect of such transaction are otherwise permitted pursuant to Section 9.6(g).

 

Permitted Factoring Transaction” means a direct sale of Receivables Assets or interests therein in the ordinary course of business to third party financing companies, and intended by the parties thereto to be a “true sale” and which do not materially interfere with the business of the Borrower and its Subsidiaries or adversely affect the Collateral (other than by virtue of being a disposition of property that would otherwise be Collateral to the extent such disposition is expressly permitted by this Agreement).

 

Permitted Intercompany Transfer” means any transfer or series of related transfers of Investments or other assets among the Borrower and its Subsidiaries that, upon completion of such transfer or series of related transfers, meets all of the following requirements:

 

(a)                 the net investment amount of the Credit Parties in Non-Guarantor Subsidiaries is not increased after giving effect to such transfer or series of related transfers;

 

(b)                 no additional cash or Cash Equivalent Investment (measured on a net basis taking into account existing cash and Cash Equivalent Investments by the Credit Parties in Non-Guarantor Subsidiaries) has been made by any Credit Party; and

 

(c)                 such transfer or series of related transfers could not reasonably be expected to adversely affect the rights or interests of the Administrative Agent or the Lenders hereunder in any material respect (it being understood that any such transfer or series of related transfers that does not effect a transfer or contribution of any Investment or asset directly held by a Credit Party prior to such transfer, or series of related transfers, to a Non-Guarantor Subsidiary shall not be deemed adverse to the Administrative Agent or the Lenders).

 

Permitted Liens” means the Liens permitted pursuant to Section 9.2.

 

Permitted Receivables Documents” shall mean all documents and agreements evidencing, relating to or otherwise governing a Permitted Receivables Financing.

 

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Permitted Receivables Financing” means a Securitization or a Permitted Factoring Transaction that complies with the following criteria: (a) such Securitization or Permitted Factoring Transaction (including financing terms, covenants, termination events and other provisions) is in the aggregate fair and reasonable to the Borrower and the related Special Purpose Receivables Subsidiary or financing company, as applicable, as determined in good faith by the Borrower; (b) all sales and/or contributions of Receivables Assets to the related Special Purpose Receivables Subsidiary or financing company are made at Fair Market Value; (c) the financing terms, covenants, termination events and other provisions shall be market terms as determined in good faith by the Borrower; and (d) the Receivables Assets Net Investment does not exceed $20,000,000 at any one time.

 

Permitted Refinancing Indebtedness” means any Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund (collectively, to “Refinance”), other Indebtedness; provided that (a) the principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so refinanced (plus unpaid accrued interest and premium (including tender premium) thereon, any original issue discount on, and underwriting discounts, fees, commissions and expenses incurred in connection with, such Permitted Refinancing Indebtedness), (b) no Permitted Refinancing Indebtedness shall have direct obligors or contingent obligors that were not the direct obligors or contingent obligors (or that would not have been required to become direct obligors or contingent obligors) in respect of the Indebtedness being Refinanced, (c) the final maturity date of such Permitted Refinancing Indebtedness is no earlier than the final maturity date of the Indebtedness being Refinanced, (d) if the Indebtedness (including any Guarantee thereof) being Refinanced is by its terms subordinated in right of payment to the Obligations, such Permitted Refinancing Indebtedness (including any Guarantee thereof) shall be subordinated in right of payment to the Obligations on terms at least as favorable to the Lenders as those contained in the documentation governing the Indebtedness being Refinanced, taken as a whole (as determined in good faith by the Borrower in consultation with the Administrative Agent), (e) to the extent any Liens securing such Indebtedness being Refinanced are subordinated to any Liens securing the Obligations, the Liens securing such Permitted Refinancing Indebtedness are subordinated to the Liens securing the Obligations on terms, taken as a whole, at least as favorable to the Lenders as those contained in the documentation governing the Indebtedness being modified, refinanced, refunded, renewed or extended and (f) to the extent such Indebtedness is unsecured, such Permitted Refinancing Indebtedness shall be unsecured.

 

Permitted Reorganization” means (i) the transactions among the Borrower and its Subsidiaries as specified in that certain Legal Entity Consolidated summary provided by the Borrower to the Administrative Agent prior to the Effective Date and (ii) the transactions among the Borrower and its Subsidiaries as specified in that certain Germany IP Transfer & Restructuring summary provided by the Borrower to the Administrative Agent prior to the Effective Date.

 

Permitted Unsecured Indebtedness” means unsecured Indebtedness of the Borrower and Guarantees thereof by any Credit Party; provided that: (a) the stated final maturity of such Indebtedness shall not be earlier than ninety-one (91) days after the Latest Maturity Date, and such stated final maturity shall not be subject to any conditions that could result in such stated final maturity occurring on a date that precedes the date that is ninety-one (91) days after the Latest Maturity Date; (b) such Indebtedness shall not be required to be repaid, prepaid, redeemed, repurchased or defeased, in whole or in part, whether on one or more fixed dates, upon the occurrence of one or more events or at the option of any holder thereof (except, in each case, upon the occurrence of an event of default, a change in control, fundamental change, an asset disposition or an event of loss, or in the case of convertible notes, upon conversion) prior to the date that is ninety-one (91) days after the Latest Maturity Date; (c) such Indebtedness contains terms and conditions (excluding interest rate, fees and other pricing terms, premiums and optional prepayment or optional redemption provisions) that are market terms for a registered public offering of debt securities or an offering of debt securities under Rule 144A or Regulation S under the Securities Act of 1933 on the date such Indebtedness is incurred, or are not materially more restrictive, taken as a whole, than the covenants and events of default contained in this Agreement (in each case, as determined in good faith by the chief financial officer of the Borrower); (d) such Indebtedness shall not constitute an obligation (including pursuant to a Guarantee) of any Subsidiary that is not a Credit Party; (e) such Indebtedness shall not be secured by any Lien on any asset of the Borrower or any Subsidiary; (f) at the time of and immediately after giving effect to the incurrence of such Indebtedness and the application of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing; and (g) after giving effect to the incurrence of such Indebtedness and the application of the proceeds thereof, the Borrower shall be in Pro Forma Compliance with the covenants set forth in Section 9.14.

 

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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 plan of reorganization or plan of liquidation pursuant to any Debtor Relief Laws.

 

Plan Asset Regulations” means the regulations issued by the United States Department of Labor at Section 2510.3-101 of Part 2510 of Chapter XXV, Title 29 of the United States Code of Federal Regulations, as modified by Section 3(42) of ERISA, as the same may be amended from time to time.

 

Platform” means Debt Domain, Intralinks, SyndTrak or a substantially similar electronic transmission system.

 

Prime Rate” means, at any time, the rate of interest per annum publicly announced from time to time by the Administrative Agent as its prime commercial lending rate, as established from time to time at the Administrative Agent’s principal U.S. office. Each change in the Prime Rate shall be effective as of the opening of business on the day such change in such prime rate occurs. The parties hereto acknowledge that the rate announced publicly by the Administrative Agent as its prime commercial lending rate is an index or base rate and shall not necessarily be its lowest or best rate charged to its customers or other banks.

 

Pro Forma Basis” means, (i) with respect to determining actual compliance with any financial covenant hereunder, compliance with such financial covenant for any period during which one or more Specified Transactions occurs calculated after giving pro forma effect to such Specified Transaction (and all other Specified Transactions that have been consummated during the applicable period and any related Indebtedness incurred or repaid in connection therewith), or (ii) in the case of any pro forma computation made hereunder to determine whether a Specified Transaction or other transaction is permitted to be consummated hereunder, compliance with such test or covenant for the applicable period calculated after giving pro forma effect to such Specified Transaction (and all other Specified Transactions that have been consummated (x) during the applicable period and (y) subsequent to the applicable period and prior to or concurrently with the event for which the calculation of any such test or covenant is made, and in each case any related Indebtedness incurred or repaid in connection therewith), in each case as if such Specified Transaction(s) or other transaction and any related incurrence or reduction of Indebtedness had occurred on the first day of the applicable period of measurement ending with the most recent fiscal quarter for which financial statements shall have been delivered, or are being delivered, as applicable, pursuant to Section 8.1(a) or Section 8.1(b) (or, prior to the delivery of any such financial statements, ending with the last fiscal quarter included in the financial statements referred to in Section 6.1(e)(iii)) and, to the extent applicable, to the historical financial statements of all entities or assets acquired or disposed of, and the consolidated financial statements of the Borrower and its Subsidiaries, all in accordance with Article 11 of Regulation S-X under the Exchange Act, calculated on a basis consistent with GAAP; provided that, notwithstanding the foregoing, pro forma adjustments shall exclude the pro forma effects of marking deferred revenue to fair market value. 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 determination had been the applicable rate for the entire period (taking into account any Hedge Agreement applicable to such Indebtedness if such Hedge Agreement has a remaining term in excess of twelve (12) months).

 

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Pro Forma Compliance” means, at any date of determination, that the Borrower and its Subsidiaries shall be in pro forma compliance with any or all of the covenants set forth in Section 9.14 (in the case of the Consolidated Total Net Leverage Ratio, as such level may be adjusted during a Consolidated Total Net Leverage Ratio Holiday, if applicable), as of the date of such determination or the last day of the most recently completed fiscal quarter for which financial statements shall have been delivered, or are being delivered, as applicable, pursuant to Section 8.1(a) or Section 8.1(b) (or, prior to the delivery of any such financial statements, ending with the last fiscal quarter included in the financial statements referred to in Section 6.1(e)(iii)) (computed on the basis of: (a) balance sheet amounts as of the last day of such quarter; and (b) income statement amounts for such period of four (4) consecutive fiscal quarters and calculated on a Pro Forma Basis in respect of the event giving rise to such determination and all other Specified Transactions that have been consummated during the applicable period and any related Indebtedness incurred or repaid in connection therewith).

 

Property” means any right or interest in or to property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, including, without limitation, Equity Interests.

 

PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.

 

Public Lenders” has the meaning assigned thereto in Section 8.2.

 

Qualified Accounts Receivable” means accounts receivable owned by the Borrower or any of its Subsidiaries with respect to which the Borrower or such Subsidiary is the beneficiary of a commercial letter of credit issued by a commercial bank or other financial institution supporting the invoiced amount of such accounts receivable.

 

Qualified Accounts Receivable Disposition” means the factoring, sale or other disposition of Qualified Accounts Receivable, to the extent Qualified Accounts Receivable Disposition Net Outstandings do not exceed $25,000,000 at any one time.

 

Qualified Accounts Receivable Disposition Net Outstandings” shall mean, on any date of determination, the aggregate cash amount paid by the purchasers of Qualified Accounts Receivable in connection with a factoring, sale or other disposition of Qualified Accounts Receivable, as the same may be reduced from time to time by collections with respect to such Qualified Accounts Receivable or otherwise in accordance with the terms of the documents governing such factoring, sale or other disposition of Qualified Accounts Receivable.

 

Qualified Equity Interests” means any Equity Interests that are not Disqualified Equity Interests.

 

Qualifying Permitted Acquisition” means a Permitted Acquisition (or series of related Permitted Acquisitions) by the Borrower and its Subsidiaries with aggregate Permitted Acquisition Consideration in excess of $50,000,000.

 

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Reaffirmation Agreement” means the reaffirmation agreement and amendment to collateral agreement dated as of the Effective Date by each of the Credit Parties in favor of the Administrative Agent.

 

Real Estate Support Documents” means, with respect to any real property constituting Collateral, such commercially reasonable warehousemen and bailee letters, third party consents, intercreditor agreements, mortgagee title insurance policies (in amounts and with endorsements acceptable to the Administrative Agent), surveys, appraisals, environmental reports, flood hazard certifications and evidence of flood insurance (if such insurance is required by Applicable Law), leases, landlord waivers and such other mortgage-related documents as the Administrative Agent may reasonably request.

 

Receivables Assets” shall mean any accounts receivable and lease receivables owed to the Borrower or any Subsidiary (whether now existing or arising or acquired in the future) arising in the ordinary course of business from the sale or lease of goods, all collateral securing such accounts receivable and lease receivables, all contracts and contract rights and all guarantees or other obligations in respect of such accounts receivable and lease receivables, all supporting obligations in respect of such accounts receivable and lease receivables, all proceeds of such accounts receivable and lease receivables and other assets (including contract rights) which are of the type customarily factored, sold, transferred or in respect of which security interests are customarily granted in connection with securitizations of accounts receivable and lease receivables and which are sold, transferred or otherwise conveyed by the Borrower or a Subsidiary to a Special Purpose Receivables Subsidiary.

 

Receivables Assets Net Investment” shall mean, on any date of determination, the aggregate cash amount paid by the lenders or purchasers under Permitted Receivables Financings to Special Purpose Receivables Subsidiaries in connection with their purchase of, or the making of loans secured by, Receivables Assets or interests therein, as the same may be reduced from time to time by collections with respect to such Receivables Assets or otherwise in accordance with the terms of the Permitted Receivables Documents.

 

Recipient” means: (a) the Administrative Agent; (b) any Lender; and (c) any Issuing Lender, as applicable.

 

Refinancing” means (a) the repayment in full of all “Term Loans” (as defined in the Existing Credit Agreement) on the Effective Date, including all principal and accrued interest thereon, and (b) the reallocation of the “Revolving Credit Commitments” (as defined in the Existing Credit Agreement) to be held by the Lenders hereunder on the Effective Date as set forth herein and the payment of all accrued and unpaid interest in respect of such “Revolving Credit Commitments” to the “Revolving Credit Lenders” (as defined in the Existing Credit Agreement).

 

Register” has the meaning assigned thereto in Section 12.9(c).

 

Reimbursement Obligation” means the obligation of the Borrower to reimburse any Issuing Lender pursuant to Section 3.5 for amounts drawn under Letters of Credit issued by such Issuing Lender.

 

Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and of such Person’s Affiliates.

 

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Relevant Governmental Body” means the Federal Reserve Board and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board and/or the Federal Reserve Bank of New York or any successor thereto.

 

Removal Effective Date” has the meaning assigned thereto in Section 11.6(b).

 

Required Lenders” means, at any time, Lenders having Total Credit Exposures representing more than fifty percent (50%) of the Total Credit Exposures of all Lenders. The Total Credit Exposure of any Defaulting Lender shall be disregarded in determining Required Lenders at any time.

 

Required Revolving Credit Lenders” means, at any date, any combination of Revolving Credit Lenders holding more than fifty percent (50%) of the sum of the aggregate amount of the Revolving Credit Commitment or, if the Revolving Credit Commitment has been terminated, any combination of Revolving Credit Lenders holding more than fifty percent (50%) of the aggregate Extensions of Credit under the Revolving Credit Facility; provided that the Revolving Credit Commitment of, and the portion of the Extensions of Credit under the Revolving Credit Facility, as applicable, held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Revolving Credit Lenders.

 

“ Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.

 

Responsible Officer” means, as to any Person, the chief executive officer, president, chief financial officer, controller, treasurer or assistant treasurer of such Person or any other officer of such Person designated in writing by the Borrower and reasonably acceptable to the Administrative Agent; provided that, to the extent requested thereby, the Administrative Agent shall have received a certificate of such Person certifying as to the incumbency and genuineness of the signature of each such officer. Any document delivered hereunder or under any other Loan Document that is signed by a Responsible Officer of a Person shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Person and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Person.

 

Restricted Payment” has the meaning assigned thereto in Section 9.6.

 

Revaluation Date” means, with respect to any Letter of Credit, each of the following: (a) each date of issuance of a Letter of Credit denominated in an Alternative Currency; (b) each date of an amendment of any such Letter of Credit having the effect of increasing the amount thereof; (c) each date of any payment by the Issuing Lender under any Letter of Credit denominated in an Alternative Currency; and (d) such additional dates as the Administrative Agent or the Issuing Lender shall determine or the Required Lenders shall require.

 

Revolving Credit Commitment” means: (a) as to any Revolving Credit Lender, the obligation of such Revolving Credit Lender to make Revolving Credit Loans to, and to purchase participations in L/C Obligations and Swingline Loans for the account of, the Borrower hereunder in an aggregate principal amount at any time outstanding not to exceed the amount set forth opposite such Revolving Credit Lender’s name on the Register, as such amount may be modified at any time or from time to time pursuant to the terms hereof (including, without limitation, Section 5.13); and (b) as to all Revolving Credit Lenders, the aggregate commitment of all Revolving Credit Lenders to make Revolving Credit Loans, as such amount may be modified at any time or from time to time pursuant to the terms hereof (including, without limitation, Section 5.13). The aggregate Revolving Credit Commitment of all the Revolving Credit Lenders as of the Effective Date shall be $500,000,000. The initial Revolving Credit Commitment of each Revolving Credit Lender is set forth opposite the name of such Lender on Schedule 1.1(a).

 

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Revolving Credit Commitment Percentage” means, with respect to any Revolving Credit Lender at any time, the percentage of the total Revolving Credit Commitments of all the Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment. If the Revolving Credit Commitments have terminated or expired, the Revolving Credit Commitment Percentages shall be determined based upon the Revolving Credit Commitments most recently in effect, giving effect to any assignments. The initial Revolving Credit Commitment Percentage of each Revolving Credit Lender is set forth opposite the name of such Lender on Schedule 1.1(a).

 

Revolving Credit Exposure” means, as to any Revolving Credit Lender at any time, the aggregate principal amount at such time of its outstanding Revolving Credit Loans and such Revolving Credit Lender’s participation in L/C Obligations and Swingline Loans at such time.

 

Revolving Credit Facility” means the revolving credit facility established pursuant to Article II (including any increase in such revolving credit facility established pursuant to Section 5.13).

 

Revolving Credit Lenders” means, collectively, all of the Lenders with a Revolving Credit Commitment (or, if the Revolving Credit Commitment has been terminated, all of the Lenders having Revolving Credit Exposure).

 

Revolving Credit Loan” means any revolving loan made to the Borrower pursuant to Section 2.1, and all such revolving loans collectively as the context requires.

 

Revolving Credit Maturity Date” means the earliest to occur of: (a) the date that is the fifth (5th) anniversary of the Effective Date (or, with respect to any Lender, such later date as requested by the Borrower pursuant to Section 5.16 and accepted by such Lender); (b) the date of termination of the entire Revolving Credit Commitment by the Borrower pursuant to Section 2.5; and (c) the date of termination of the Revolving Credit Commitment pursuant to Section 10.2(a).

 

Revolving Credit Note” means a promissory note made by the Borrower in favor of a Revolving Credit Lender evidencing the Revolving Credit Loans made by such Revolving Credit Lender, substantially in the form attached as Exhibit A-1, and any substitutes therefor, and any replacements, restatements, renewals or extension thereof, in whole or in part.

 

Revolving Credit Outstandings” means the sum of: (a) with respect to Revolving Credit Loans and Swingline Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Revolving Credit Loans and Swingline Loans, as the case may be, occurring on such date; plus (b) with respect to any L/C Obligations on any date, the aggregate outstanding amount thereof on such date after giving effect to any Extensions of Credit 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 of outstanding unpaid drawings under any Letters of Credit or any reductions in the maximum amount available for drawing under Letters of Credit taking effect on such date.

 

S&P” means Standard & Poor’s Financial Services LLC, a part of McGraw-Hill Financial, and any successor thereto.

 

Same Day Funds” means: (a) with respect to disbursements and payments in Dollars, immediately available funds; and (b) with respect to disbursements and payments in an Alternative Currency, same day or other funds as may be determined by the Administrative Agent or the Issuing Lender, as the case may be, to be customary in the place of disbursement or payment for the settlement of international banking transactions in the relevant Alternative Currency.

 

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Sanctioned Country” means at any time, a country, region or territory which is itself the subject or target of comprehensive Sanctions (including, without limitation, Cuba, Iran, North Korea, Sudan, Syria and the Crimea region of Ukraine).

 

Sanctioned Person” means, at any time: (a) any Person listed in any Sanctions-related list of designated Persons maintained by OFAC, the U.S. Department of State, the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other applicable sanctions authority; (b) any Person operating, organized or resident in a Sanctioned Country; or (c) any Person owned or controlled by any such Person or Persons described in clauses (a) and (b).

 

Sanctions” means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by the U.S. government (including those administered by OFAC), the European Union, Her Majesty’s Treasury, or other applicable sanctions authority.

 

SEC” means the Unites States Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.

 

Secured Cash Management Agreement” means any Cash Management Agreement between or among any Credit Party or any Subsidiary thereof and any Cash Management Bank that has been designated as a “Secured Cash Management Agreement” by written notice from the Borrower and the applicable Cash Management Bank to the Administrative Agent.

 

Secured Hedge Agreement” means any Hedge Agreement between or among any Credit Party or any Subsidiary thereof and any Hedge Bank that has been designated as a “Secured Hedge Agreement” by written notice from the Borrower and the applicable Hedge Bank to the Administrative Agent.

 

Secured Obligations” means, collectively: (a) the Obligations; and (b) all existing or future payment and other obligations owing by any Credit Party or any Subsidiary thereof under: (i) any Secured Hedge Agreement (other than an Excluded Swap Obligation); and (ii) any Secured Cash Management Agreement.

 

Secured Parties” means, collectively, the Administrative Agent, the Lenders, the Issuing Lenders, the Hedge Banks, the Cash Management Banks, each co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to Section 11.5, any other holder from time to time of any of any Secured Obligations and, in each case, their respective successors and permitted assigns.

 

Securities Account” means an account to which a financial asset is or may be credited in accordance with an agreement under which the Person maintaining the account undertakes to treat the Person for whom the account is maintained as entitled to exercise the rights that comprise the financial asset.

 

Securitization” shall mean any transaction or series of transactions entered into by the Borrower or any Subsidiary pursuant to which the Borrower or such Subsidiary, as the case may be, sells, conveys, assigns, grants an interest in or otherwise transfers Receivables Assets to a Special Purpose Receivables Subsidiary (and/or grants a security interest in such Receivables Assets transferred or purported to be transferred to such Special Purpose Receivables Subsidiary), and which Special Purpose Receivables Subsidiary finances the acquisition of such Receivables Assets (i) with cash, (ii) with the issuance to the Borrower or such Subsidiary of Seller’s Retained Interests of an increase in such Seller’s Retained Interests or (iii) with proceeds from the sale or collection of Receivables Assets.

 

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Security Documents” means the collective reference to the Collateral Agreement, the Mortgages, the Reaffirmation Agreement and each other agreement or writing pursuant to which any Credit Party pledges, grants or perfects, or purports to pledge, grant or perfect, a security interest in any Property or assets securing the Secured Obligations.

 

Seller’s Retained Interest” shall mean the debt or equity interests held by the Borrower or any Subsidiary in a Special Purpose Receivables Subsidiary to which the Borrower or any Subsidiary has transferred Receivables Assets, including any such debt or equity received as consideration for or as a portion of the purchase price of the Receivables Assets transferred, or any other instrument through which the Borrower or any Subsidiary has rights to or receives distributions in respect of any residual or excess interest in the Receivables Assets.

 

Series” shall mean (i) when used with respect to the Lenders, each of the following classes of Lenders: (a) Lenders having Revolving Credit Loans incurred pursuant to the Revolving Credit Commitments incurred on the Effective Date or any Incremental Revolving Credit Commitment having the same maturity date, (b) Lenders having Revolving Credit Loans or Revolving Credit Commitments extended pursuant an Extension Amendment and having the same maturity date, (c) Lenders having Incremental Term Loans or Incremental Term Loan Commitments issued on the same date and having the same maturity date and (d) Lenders having such other Series of Term Loans or Term Loan Commitments extended pursuant to the same Extension Amendment and having the same maturity date, and (ii) when used with respect to Loans or Commitments, each of the following classes of Loans or Commitments: (a) Revolving Credit Loans incurred pursuant to the Revolving Credit Commitments incurred on the Effective Date and any Incremental Revolving Credit Commitment having the same maturity date, (b) Revolving Credit Loans or Revolving Credit Commitments extended pursuant to an Extension Amendment and having the same maturity date, (c) Incremental Term Loans or Incremental Term Loan Commitments issued on the same date and having the same maturity date and (d) such other Series of Term Loans or Term Loan Commitments extended pursuant to the same Extension Amendment and having the same maturity date.

 

SOFR” with respect to any day means the secured overnight financing rate published for such day by the Federal Reserve Bank of New York, as the administrator of the benchmark, (or a successor administrator) on the Federal Reserve Bank of New York’s Website.

 

Solvent” and “Solvency” mean, with respect to any Person on any date of determination, that on such date (a) the fair value of the property of such Person is greater than the total amount of liabilities, including contingent liabilities, of such Person, (b) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they mature, (d) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property would constitute an unreasonably small capital, and (e) such Person is able to pay its debts and liabilities, contingent obligations and other commitments as they become absolute and matured in the ordinary course of business. The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

 

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Special Purpose Receivables Subsidiary” shall mean a Person in which the Borrower or any Subsidiary makes an Investment and to which the Borrower or any Subsidiary sells, conveys, transfers or grants a security interest in Receivables Assets, which Person (i) engages in no other activities other than the purchase or acquisition of Receivables Assets for the limited purpose of effecting one or more Securitizations and related activities; (ii) does not have any Indebtedness that is guaranteed by or otherwise recourse to the Borrower or any Subsidiary or any of their respective assets or properties (other than pursuant to Standard Receivables Financing Undertakings); (iii) is not party to any contracts, agreements, arrangements or understanding with the Borrower or any of its Subsidiaries other than on terms that are no less favorable to the Borrower or such Subsidiary than those that might be obtained by the Borrower or such Subsidiary from a Person that is not an Affiliate of the Borrower as determined by the Borrower in good faith; (iv) with respect to which none of the Borrower or any of its Subsidiaries has any obligation to maintain such Person’s financial condition or cause such entity to achieve any specified level of operating results; and (v) is designated by the Borrower to the Administrative Agent in writing as a Special Purpose Receivables Subsidiary.

 

Specified Disposition” means any disposition or series of related dispositions of all or substantially all of the assets or Equity Interests of any Subsidiary of the Borrower or any division, business unit, product line or line of business for which Disposition Consideration exceeds $10,000,000.

 

Specified Transactions” means: (a) any Specified Disposition; (b) any Permitted Acquisition permitted hereunder (other than Immaterial Acquisitions); (c) any Investment pursuant to Section 9.3(s) in respect of which the Borrower is required to be, by the terms of this Agreement, in Pro Forma Compliance with the financial covenants set forth in Section 9.14; (d) any Equity Issuance (but solely for purposes of clause (ii) of the definition of Pro Forma Basis), (e) any incurrence of Indebtedness in respect of which the Borrower is required to be, by the terms of this Agreement, in Pro Forma Compliance with the financial covenants set forth in Section 9.14 (in the case of the Consolidated Total Net Leverage Ratio, as such level may be adjusted during a Consolidated Total Net Leverage Ratio Holiday, if applicable at such time); (f) any; (f) any incurrence of Indebtedness under Section 9.1(k); (g) any Restricted Payment pursuant to Section 9.6(g) in respect of which the Borrower is required to be, by the terms of this Agreement, in Pro Forma Compliance with the financial covenants set forth in Section 9.14; (gh) any payment or prepayment of Subordinated Indebtedness or Permitted Unsecured Indebtedness pursuant to Section 9.9(b)(v) in respect of which the Borrower is required to be, by the terms of this Agreement, in Pro Forma Compliance with the financial covenants set forth in Section 9.14; and (hi) any increase in Commitments pursuant to Section 5.13.

 

Spot Rate” for a currency means the rate determined by the Administrative Agent or the Issuing Lender, as applicable, to be the rate quoted by the Person acting in such capacity as the spot rate for the purchase by such Person of such currency with another currency through its principal foreign exchange trading office at approximately 11:00 a.m. on the date two (2) Business Days prior to the date as of which the foreign exchange computation is made; provided that the Administrative Agent or any Issuing Lender may obtain such spot rate from another financial institution designated by the Administrative Agent or such Issuing Lender if the Person acting in such capacity does not have as of the date of determination a spot buying rate for any such currency; provided further that such Issuing Lender 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.

 

Standard Receivables Financing Undertakings” means representations, warranties, covenants (including customary repurchase obligations) and indemnities entered into by the Borrower or any Subsidiary which are customary for a seller or servicer of accounts receivable and lease receivables assets transferred in non-recourse receivables factoring, sales or securitization transactions.

 

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Subordinated Indebtedness” means the collective reference to any unsecured Indebtedness incurred by the Borrower or any of its Subsidiaries that is subordinated in right and time of payment to the Obligations on terms and conditions satisfactory to the Administrative Agent.

 

Subsidiary” means as to any Person, any corporation, partnership, limited liability company or other entity of which more than fifty percent (50%) of the outstanding Equity Interests having ordinary voting power to elect a majority of the board of directors (or equivalent governing body) or other managers of such corporation, partnership, limited liability company or other entity is at the time owned by (directly or indirectly) or the management is otherwise controlled by (directly or indirectly) such Person (irrespective of whether, at the time, Equity Interests of any other class or classes of such corporation, partnership, limited liability company or other entity shall have or might have voting power by reason of the happening of any contingency). Unless otherwise qualified, references to “Subsidiary” or “Subsidiaries” herein shall refer to those of the Borrower.

 

Subsidiary Guarantors” means, collectively, all direct and indirect Subsidiaries of the Borrower (other than Excluded Subsidiaries) in existence on the Effective Date or which become a party to the Guaranty Agreement pursuant to Section 8.14. For the avoidance of doubt, no Excluded Subsidiary shall be a Subsidiary Guarantor.

 

Swap Obligation” means, with respect to any Subsidiary 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.

 

Swingline Commitment” means the lesser of: (a) $25,000,000.00; and (b) the Revolving Credit Commitment.

 

Swingline Facility” means the swingline facility established pursuant to Section 2.2.

 

Swingline Lender” means Wells Fargo in its capacity as swingline lender hereunder or any successor thereto.

 

Swingline Loan” means any swingline loan made by the Swingline Lender to the Borrower pursuant to Section 2.2, and all such swingline loans collectively as the context requires.

 

Swingline Note” means a promissory note made by the Borrower in favor of the Swingline Lender evidencing the Swingline Loans made by the Swingline Lender, substantially in the form attached as Exhibit A-2, and any substitutes therefor, and any replacements, restatements, renewals or extension thereof, in whole or in part.

 

Synthetic Lease” means any synthetic lease, tax retention operating lease, off-balance sheet loan or similar off-balance sheet financing product where such transaction is considered borrowed money indebtedness for tax purposes but is classified as an Operating Lease in accordance with GAAP.

 

Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges in the nature of a tax imposed by any Governmental Authority, including any interest, fines, additions to tax or penalties applicable thereto.

 

Term Loan Commitment” means: (a) as to any Term Loan Lender, the obligation of such Term Loan Lender to make a portion of the Incremental Term Loans, if any, to the account of the Borrower hereunder on the applicable borrowing date in an aggregate principal amount not to exceed the amount set forth opposite such Lender’s name on the Register, as such amount may be increased, reduced or otherwise modified at any time or from time to time pursuant to the terms hereof; and (b) as to all Term Loan Lenders, the aggregate commitment of all Term Loan Lenders to make such Term Loans.

 

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Term Loan Facility” means any term loan facility(ies) provided for hereunder from time to time. For the avoidance of doubt, the “Term Loan Facility” includes any new term loan facility established pursuant to Section 5.13.

 

Term Loan Lender” means any Lender with a Term Loan Commitment and/or outstanding Term Loans.

 

Term Loan Maturity Date” means, with respect to any Series of Incremental Term Loans, the first to occur of (a) the final maturity date set forth for such Series of Incremental Term Loans in the Lender Joinder Agreement applicable to such Series of Incremental Term Loans (or, with respect to any Lender, such later date as requested by the Borrower pursuant to Section 5.16 and accepted by such Lender) and (b) the date of acceleration of the Term Loans pursuant to Section 10.2(a).

 

Term Loan Note” means a promissory note made by the Borrower in favor of a Term Loan Lender evidencing the portion of the Term Loans made by such Term Loan Lender, substantially in the form attached as Exhibit A-3, and any substitutes therefor, and any replacements, restatements, renewals or extension thereof, in whole or in part.

 

Term Loan Percentage” means, with respect to any Term Loan Lender at any time, the percentage of the total outstanding principal balance of the Term Loans represented by the outstanding principal balance of such Term Loan Lender’s Term Loans.

 

Term Loans” means any Incremental Term Loans. For the avoidance of doubt, Extended Term Loans shall constitute Term Loans.

 

Termination Event” means the occurrence of any of the following which, individually or in the aggregate, has resulted or could reasonably be expected to result in liability of the Borrower in an aggregate amount in excess of the Threshold Amount: (a) a “Reportable Event” described in Section 4043 of ERISA for which the thirty (30) day notice requirement has not been waived by the PBGC, or (b) the withdrawal of any Credit Party or any ERISA Affiliate from a Pension Plan 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, or (c) the termination of a Pension Plan, the filing of a notice of intent to terminate a Pension Plan or the treatment of a Pension Plan amendment as a termination, under Section 4041 of ERISA, if the plan assets are not sufficient to pay all plan liabilities, or (d) the institution of proceedings to terminate, or the appointment of a trustee with respect to, any Pension Plan by the PBGC, or (e) any other event or condition which would constitute grounds under Section 4042(a) of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan, or (f) the imposition of a Lien pursuant to Section 430(k) of the Code or Section 303 of ERISA, or (g) the determination that any Pension Plan or Multiemployer Plan is considered an at-risk plan or plan in endangered or critical status with the meaning of Sections 430, 431 or 432 of the Code or Sections 303, 304 or 305 of ERISA or (h) the partial or complete withdrawal of any Credit Party or any ERISA Affiliate from a Multiemployer Plan if withdrawal liability is asserted by such plan, or (i) any event or condition which results in the reorganization or insolvency of a Multiemployer Plan under Sections 4241 or 4245 of ERISA, or (j) any event or condition which results in the termination of a Multiemployer Plan under Section 4041A of ERISA or the institution by PBGC of proceedings to terminate a Multiemployer Plan under Section 4042 of ERISA, or (k) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any Credit Party or any ERISA Affiliate.

 

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Term SOFR” means the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body.

 

Threshold Amount” means $10,000,000.

 

Total Credit Exposure” means, as to any Lender at any time, the unused Commitments, Revolving Credit Exposure, and outstanding Term Loans of such Lender (if any) at such time.

 

Trade Date” has the meaning assigned thereto in Section 12.9(f)(i).

 

Transaction Costs” means all transaction fees, charges and other amounts related to the Transactions, any issuance of Indebtedness permitted pursuant to Section 9.1 (other than the issuance of Indebtedness pursuant to this Agreement and the other Loan Documents), and, without duplication, any Permitted Acquisitions (including, without limitation, any financing fees (including any underwriting, commitment, arrangement, structuring or similar fees), merger and acquisition fees (including any investment banking or brokerage fees), legal fees and expenses, consulting and valuation fees, due diligence fees or any other fees and expenses in connection therewith).

 

Transactions” means, collectively: (a) the Refinancing; (b) the initial Extensions of Credit on the Effective Date; and (c) the payment of the Transaction Costs incurred in connection with the foregoing.

 

UCC” means the Uniform Commercial Code as in effect in the State of New York.

 

“ UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended form time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.

 

“ UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.

 

Unadjusted Benchmark Replacement” means the Benchmark Replacement excluding the Benchmark Replacement Adjustment.

 

United States” means the United States of America.

 

Unrestricted Cash” means all Cash and Cash Equivalents of the Borrower and its Subsidiaries as of such date that is held in accounts located in the United States established at a Lender and that is not restricted from being applied to repay the Obligations.

 

U.S. Person” means any Person that is a “United States person” as defined in Section 7701(a)(30) of the Code.

 

U.S. Tax Compliance Certificate” has the meaning assigned thereto in Section 5.11(g).

 

Wells Fargo” means Wells Fargo Bank, National Association, a national banking association.

 

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Wholly-Owned” means, with respect to a Subsidiary, that all of the Equity Interests of such Subsidiary are, directly or indirectly, owned or controlled by the Borrower and/or one or more of its Wholly-Owned Subsidiaries (except for directors’ qualifying shares or other shares required by Applicable Law to be owned by a Person other than the Borrower and/or one or more of its Wholly-Owned Subsidiaries).

 

Withholding Agent” means any Credit Party and the Administrative Agent.

 

Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule., and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.

 

SECTION 1.2      Other Definitions and Provisions. With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document: (a) the definitions of terms herein shall apply equally to the singular and plural forms of the terms defined, (b)  whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms, (c) the words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”, (d) the word “will” shall be construed to have the same meaning and effect as the word “shall”, (e) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (f) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (g) the word “or” shall not be exclusive, (h) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement, (i) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights, (j) the term “documents” includes any and all instruments, documents, agreements, certificates, notices, reports, financial statements and other writings, however evidenced, whether in physical or electronic form and (k) 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”.

 

SECTION 1.3     Accounting Terms.

 

(a)                 All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with GAAP, applied on a consistent basis, as in effect from time to time and in a manner consistent with that used in preparing the audited financial statements required by Section 8.1(a), except as otherwise specifically prescribed herein. Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the computation of any financial covenant) contained herein, Indebtedness of the Borrower and its Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB ASC 470-20 on financial liabilities shall be disregarded and operating and capital leases will be treated in a manner consistent with their treatment under GAAP as in effect for reporting periods beginning prior to December 15, 2018, notwithstanding any modifications or interpretive changes thereto that may occur thereafter.

 

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(b)                 If at any time any change in GAAP would affect the computation of any financial ratio or requirement or interpretation of a covenant set forth in any Loan Document, and either the Borrower or the Required Lenders shall so request, the Administrative Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders); provided that, until so amended, (i) such ratio, requirement or covenant shall continue to be computed or interpreted, as applicable, in accordance with GAAP prior to such change therein and (ii) the Borrower shall provide to the Administrative Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP.

 

SECTION 1.4      UCC Terms. Terms defined in the UCC in effect on the Effective Date and not otherwise defined herein shall, unless the context otherwise indicates, have the meanings provided by those definitions. Subject to the foregoing, the term “UCC” refers, as of any date of determination, to the UCC then in effect.

 

SECTION 1.5      Rounding. Any financial ratios required to be maintained pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio or percentage 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 1.6     References to Agreement and Laws. Unless otherwise expressly provided herein, (a) any definition or reference to formation documents, governing documents, agreements (including the Loan Documents) and other contractual documents or instruments shall be deemed to include all subsequent amendments, restatements, extensions, supplements and other modifications thereto, but only to the extent that such amendments, restatements, extensions, supplements and other modifications are not prohibited by any Loan Document; and (b) any definition or reference to any Applicable Law, including, without limitation, the Code, the Commodity Exchange Act, ERISA, the Exchange Act, the Food Drug and Cosmetic Act, the HIPAA, the PATRIOT Act, the Securities Act of 1933, the UCC, the Investment Company Act of 1940 or any of the foreign assets control regulations of the United States Treasury Department, shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such Applicable Law.

 

SECTION 1.7      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 1.8      Letter of Credit Amounts. Unless otherwise specified, all references herein to the amount of a Letter of Credit at any time shall be deemed to mean the Dollar Equivalent of the maximum face amount of such Letter of Credit after giving effect to all increases thereof contemplated by such Letter of Credit or the Letter of Credit Application therefor (at the time specified therefor in such applicable Letter of Credit or Letter of Credit Application and as such amount may be reduced by (a) any permanent reduction of such Letter of Credit or (b) any amount which is drawn, reimbursed and no longer available under such Letter of Credit).

 

SECTION 1.9     Guarantees. Unless otherwise specified, the amount of any Guarantee shall be the lesser of the principal amount of the obligations guaranteed and still outstanding and the maximum amount for which the guaranteeing Person may be liable pursuant to the terms of the instrument embodying such Guarantee.

 

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SECTION 1.10      Covenant Compliance Generally. For purposes of determining compliance under Section 9.1, Section 9.2, Section 9.3, Section 9.5 and Section 9.6, any amount in a currency other than Dollars will be converted to Dollars based on the relevant currency exchange rate in effect on the date of the applicable transaction for which compliance is being determined. Notwithstanding the foregoing, for purposes of determining compliance with Sections 9.1, 9.2 and 9.3, with respect to any amount of Indebtedness or Investment in a currency other than Dollars, no breach of any basket contained in such sections shall be deemed to have occurred solely as a result of changes in rates of exchange occurring after the time such Indebtedness or Investment is incurred; provided that for the avoidance of doubt, the foregoing provisions of this Section 1.10 shall otherwise apply to such Sections, including with respect to determining whether any Indebtedness or Investment may be incurred at any time under such Sections.

 

SECTION 1.11     Exchange Rates; Currency Alternatives.

 

(a)                 The Administrative Agent or the Issuing Lender, as applicable, shall determine the Spot Rates as of each Revaluation Date to be used for calculating Dollar Equivalent amounts of Letters of Credit and L/C Obligations 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 the Credit Parties hereunder or calculating financial covenants hereunder or calculating compliance under Section 9.1, Section 9.2, Section 9.3, Section 9.5 and Section 9.6 or except as otherwise provided herein, the applicable amount of any currency (other than Dollars) for the purposes of the Loan Documents shall be such Dollar Equivalent amount as so determined by the Administrative Agent or any Issuing Lender, as applicable.

 

(b)                 Wherever in this Agreement in connection with 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 Administrative Agent or the Issuing Lender, as the case may be.

 

SECTION 1.12     Alternative Currencies.

 

(a)                 The Borrower may from time to time request that Letters of Credit be issued in a currency other than Dollars; provided that such requested currency is a lawful currency that is readily available and freely transferable and convertible into Dollars, and each such request shall be subject to the approval of the Administrative Agent and the applicable Issuing Lender.

 

(b)                 Any such request shall be made to the Administrative Agent not later than 11:00 a.m., twenty (20) Business Days prior to the date of the desired Letter of Credit issuance (or such other time or date as may be agreed by the Administrative Agent and the applicable Issuing Lender, in its or their sole discretion). The Administrative Agent shall promptly notify the applicable Issuing Lender thereof. The applicable Issuing Lender shall notify the Administrative Agent, not later than 11:00 a.m., ten (10) Business Days after receipt of such request whether it consents, in its sole discretion, to the making of the issuance of Letters of Credit in such requested currency.

 

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(c)              Any failure by the applicable Issuing Lender to respond to such request within the time period specified in the preceding sentence shall be deemed to be a refusal by such Issuing Lender to permit Letters of Credit to be issued in such requested currency. If the Administrative Agent and the applicable Issuing Lender consent to the issuance of Letters of Credit in such requested currency, the Administrative Agent shall so notify the Borrower and such currency shall thereupon be deemed for all purposes to be an Alternative Currency hereunder for purposes of any Letter of Credit issuances. If the Administrative Agent shall fail to obtain consent to any request for an alternative currency under this Section 1.12, the Administrative Agent shall promptly so notify the Borrower.

 

SECTION 1.13      Divisions. Any reference in this Agreement or any other Loan Document to a merger, transfer, consolidation, assignment, sale, disposition or transfer, or similar term, shall be deemed to apply to a division of or by a limited liability company, limited partnership or trust, or an allocation of assets to a series of a limited liability company, limited partnership or trust (or the unwinding of such a division or allocation), as if it were a merger, fundamental change, transfer, amalgamation, consolidation, assignment, sale, disposition or transfer, or similar term, as applicable, to, of or with a separate Person. Any division or series of a limited liability company, limited partnership or trust shall constitute a separate Person under this Agreement and the other Loan Documents (and each division or series of any limited liability company, limited partnership or trust that is a Subsidiary, joint venture or any other like term shall also constitute such a Person or entity).

 

ARTICLE II

 

REVOLVING CREDIT FACILITY

SECTION 2.1      Revolving Credit Loans.

 

Subject to the terms and conditions of this Agreement and the other Loan Documents, and in reliance upon the representations and warranties set forth in this Agreement and the other Loan Documents, each Revolving Credit Lender severally agrees to make Revolving Credit Loans to the Borrower from time to time from the Effective Date to, but not including, the Revolving Credit Maturity Date as requested by the Borrower in accordance with the terms of Section 2.3; provided that: (a) the Revolving Credit Outstandings shall not exceed the aggregate Revolving Credit Commitments; and (b) the Revolving Credit Exposure of any Revolving Credit Lender shall not at any time exceed such Revolving Credit Lender’s Revolving Credit Commitment. Each Revolving Credit Loan by a Revolving Credit Lender shall be in a principal amount equal to such Revolving Credit Lender’s Revolving Credit Commitment Percentage of the aggregate principal amount of Revolving Credit Loans requested on such occasion. Subject to the terms and conditions hereof, the Borrower may borrow, repay and reborrow Revolving Credit Loans hereunder until the Revolving Credit Maturity Date.

 

SECTION 2.2      Swingline Loans.

 

(a)              Availability. Subject to the terms and conditions of this Agreement and the other Loan Documents, including, without limitation, Section 6.2(d) of this Agreement, and in reliance upon the representations and warranties set forth in this Agreement and the other Loan Documents, the Swingline Lender may, in its sole discretion, make Swingline Loans to the Borrower from time to time from the Effective Date to, but not including, the Revolving Credit Maturity Date; provided that: (i) after giving effect to any amount requested, the Revolving Credit Outstandings shall not exceed the Revolving Credit Commitment; and (ii) the aggregate principal amount of all outstanding Swingline Loans (after giving effect to any amount requested) shall not exceed the Swingline Commitment.

 

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(b)            Refunding.

 

(i)             The Swingline Lender, at any time and from time to time in its sole and absolute discretion may, on behalf of the Borrower (which hereby irrevocably directs the Swingline Lender to act on its behalf), by written notice given no later than 11:00 a.m. on any Business Day request each Revolving Credit Lender to make, and each Revolving Credit Lender hereby agrees to make, a Revolving Credit Loan as a Base Rate Loan in an amount equal to such Revolving Credit Lender’s Revolving Credit Commitment Percentage of the aggregate amount of the Swingline Loans outstanding on the date of such notice, to repay the Swingline Lender. Each Revolving Credit Lender shall make the amount of such Revolving Credit Loan available to the Administrative Agent in immediately available funds at the Administrative Agent’s Office not later than 1:00 p.m. on the day specified in such notice. The proceeds of such Revolving Credit Loans shall be immediately made available by the Administrative Agent to the Swingline Lender for application by the Swingline Lender to the repayment of the Swingline Loans. Subject to Section 5.15(a)(iv), no Revolving Credit Lender’s obligation to fund its respective Revolving Credit Commitment Percentage of a Swingline Loan shall be affected by any other Revolving Credit Lender’s failure to fund its Revolving Credit Commitment Percentage of a Swingline Loan, nor shall any Revolving Credit Lender’s Revolving Credit Commitment Percentage be increased as a result of any such failure of any other Revolving Credit Lender to fund its Revolving Credit Commitment Percentage of a Swingline Loan.

 

(ii)           The Borrower shall pay to the Swingline Lender on demand in immediately available funds the amount of such Swingline Loans to the extent amounts received from the Revolving Credit Lenders are not sufficient to repay in full the outstanding Swingline Loans requested or required to be refunded. In addition, the Borrower irrevocably authorizes the Administrative Agent to charge any account maintained by the Borrower with the Swingline Lender (up to the amount available therein) in order to immediately pay the Swingline Lender the amount of such Swingline Loans to the extent amounts received from the Revolving Credit Lenders are not sufficient to repay in full the outstanding Swingline Loans requested or required to be refunded. If any portion of any such amount paid to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in bankruptcy or otherwise, the loss of the amount so recovered shall be ratably shared among all the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitment Percentages.

 

(iii)           If for any reason any Swingline Loan cannot be refinanced with a Revolving Credit Loan pursuant to Section 2.2(b)(i), each Revolving Credit Lender shall, on the date such Revolving Credit Loan was to have been made pursuant to the notice referred to in Section 2.2(b)(i), purchase for cash an undivided participating interest in the then outstanding Swingline Loans by paying to the Swingline Lender an amount (the “Swingline Participation Amount”) equal to such Revolving Credit Lender’s Revolving Credit Commitment Percentage of the aggregate principal amount of Swingline Loans then outstanding. Each Revolving Credit Lender will transfer to the Swingline Lender, in immediately available funds, the amount of its Swingline Participation Amount not later than 1:00 p.m. on the day specified in such notice. Whenever, at any time after the Swingline Lender has received from any Revolving Credit Lender such Revolving Credit Lender’s Swingline Participation Amount, the Swingline Lender receives any payment on account of the Swingline Loans, the Swingline Lender will promptly distribute to such Revolving Credit Lender its Swingline Participation Amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s participating interest was outstanding and funded and, in the case of principal and interest payments, to reflect such Revolving Credit Lender’s pro rata portion of such payment if such payment is not sufficient to pay the principal of and interest on all Swingline Loans then due); provided that in the event that such payment received by the Swingline Lender is required to be returned, such Revolving Credit Lender will return to the Swingline Lender any portion thereof previously distributed to it by the Swingline Lender.

 

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(iv)          Each Revolving Credit Lender’s obligation to make the Revolving Credit Loans referred to in Section 2.2(b)(i) and to purchase participating interests pursuant to Section 2.2(b)(iii) 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 or the Borrower 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 an Event of Default or the failure to satisfy any of the other conditions specified in Article VI, (C) any adverse change in the condition (financial or otherwise) of the Borrower, (D) any breach of this Agreement or any other Loan Document by the Borrower, any other Credit Party or any other Revolving Credit Lender or (E) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.

 

(v)           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 2.2 by the time specified in this Section 2.2, 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 Federal Funds Rate, plus any administrative, processing or similar fees customarily charged by the Swingline Lender in connection with the foregoing. If such Revolving Credit Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Revolving Credit Lender’s Revolving Credit Loan or Swingline Participation Amount, as the case may be. 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 (v) shall be conclusive absent manifest error.

 

(c)           Defaulting Lenders. Notwithstanding anything to the contrary contained in this Agreement, this Section 2.2 shall be subject to the terms and conditions of Section 5.14 and Section 5.15.

 

SECTION 2.3      Procedure for Advances of Revolving Credit Loans and Swingline Loans.

 

(a)            Requests for Borrowing. The Borrower shall give the Administrative Agent irrevocable prior written notice substantially in the form of Exhibit B (a “Notice of Borrowing”) not later than 11:00 a.m. (i) on the same Business Day as each Base Rate Loan and each Swingline Loan and (ii) at least three (3) Business Days before each LIBOR Rate Loan, of its intention to borrow, specifying (A) the date of such borrowing, which shall be a Business Day, (B) the amount of such borrowing, which shall be, (x) with respect to Base Rate Loans (other than Swingline Loans) in an aggregate principal amount of $1,000,000 or a whole multiple of $100,000 in excess thereof, (y) with respect to LIBOR Rate Loans in an aggregate principal amount of $1,000,000 or a whole multiple of $100,000 in excess thereof and (z) with respect to Swingline Loans in an aggregate principal amount of $500,000 or a whole multiple of $100,000 in excess thereof, (C) whether such Loan is to be a Revolving Credit Loan or Swingline Loan, (D) in the case of a Revolving Credit Loan whether the Loans are to be LIBOR Rate Loans or Base Rate Loans, and (E) in the case of a LIBOR Rate Loan, the duration of the Interest Period applicable thereto; provided that if the Borrower wishes to request LIBOR Rate Loans having an Interest Period of twelve (12) months in duration, such notice must be received by the Administrative Agent not later than 11:00 a.m. four (4) Business Days prior to the requested date of such borrowing, whereupon the Administrative Agent shall give prompt notice to the Revolving Credit Lenders of such request and determine whether the requested Interest Period is acceptable to all of them. If the Borrower fails to specify a type of Loan in a Notice of Borrowing, then the applicable Loans shall be made as Base Rate Loans. If the Borrower requests a borrowing of LIBOR Rate Loans in any such Notice of Borrowing, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month. A Notice of Borrowing received after 11:00 a.m. shall be deemed received on the next Business Day. The Administrative Agent shall promptly notify the Revolving Credit Lenders of each Notice of Borrowing.

 

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(b)           Disbursement of Revolving Credit and Swingline Loans. Not later than 1:00 p.m. on the proposed borrowing date, (i) each Revolving Credit Lender (so long as, in respect of Base Rate Loans, the Administrative Agent has provided such Revolving Credit Lender with a copy of the Notice of Borrowing by no later than 11:00 a.m. on the proposed borrowing date) will make available to the Administrative Agent, for the account of the Borrower, at the office of the Administrative Agent in funds immediately available to the Administrative Agent, such Revolving Credit Lender’s Revolving Credit Commitment Percentage of the Revolving Credit Loans to be made on such borrowing date and (ii) the Swingline Lender will make available to the Administrative Agent, for the account of the Borrower, at the office of the Administrative Agent in funds immediately available to the Administrative Agent, the Swingline Loans to be made on such borrowing date. The Administrative Agent will make such Loans available to the Borrower (and the Borrower hereby irrevocably authorizes the Administrative Agent to disburse the proceeds of each borrowing requested pursuant to this Section) in immediately available funds by crediting or wiring such proceeds to the deposit account of the Borrower identified in the most recent notice substantially in the form attached as Exhibit C (a “Notice of Account Designation”) delivered by the Borrower to the Administrative Agent or as may be otherwise agreed upon by the Borrower and the Administrative Agent from time to time. Subject to Section 5.7 hereof, the Administrative Agent shall not be obligated to disburse the portion of the proceeds of any Revolving Credit Loan requested pursuant to this Section to the extent that any Revolving Credit Lender has not made available to the Administrative Agent its Revolving Credit Commitment Percentage of such Loan. Revolving Credit Loans to be made for the purpose of refunding Swingline Loans shall be made by the Revolving Credit Lenders as provided in Section 2.2(b).

 

SECTION 2.4      Repayment and Prepayment of Revolving Credit and Swingline Loans.

 

(a)            Repayment on Termination Date. The Borrower hereby agrees to repay the outstanding principal amount of: (i) all Revolving Credit Loans in full on the Revolving Credit Maturity Date; and (ii) all Swingline Loans in accordance with Section 2.2(b) (but, in any event, no later than the Revolving Credit Maturity Date), together, in each case, with all accrued but unpaid interest thereon.

 

(b)           Mandatory Prepayments. If at any time the Revolving Credit Outstandings exceed the Revolving Credit Commitment, the Borrower agrees to repay immediately upon notice from the Administrative Agent, by payment to the Administrative Agent for the account of the Revolving Credit Lenders, such portions of the Extensions of Credit which equals the amount of such excess with each such repayment applied: first, to the principal amount of outstanding Swingline Loans; second to the principal amount of outstanding Revolving Credit Loans; and third, with respect to any Letters of Credit then outstanding, a payment of Cash Collateral into a Cash Collateral account opened by the Administrative Agent, for the benefit of the Revolving Credit Lenders, in an amount equal to such excess (such Cash Collateral to be applied in accordance with Section 10.2(b)).

 

(c)            Optional Prepayments. The Borrower may at any time and from time to time prepay Revolving Credit Loans and Swingline Loans, in whole or in part, with irrevocable prior written notice to the Administrative Agent substantially in the form attached as Exhibit D (a “Notice of Prepayment”) given not later than 11:00 a.m. (i) on the same Business Day as the prepayment of each Base Rate Loan and each Swingline Loan (or such later time as approved by the Administrative Agent) and (ii) at least three (3) Business Days before the prepayment of each LIBOR Rate Loan (or such later time as approved by the Administrative Agent), specifying the date and amount of prepayment and whether the prepayment is of LIBOR Rate Loans, Base Rate Loans, Swingline Loans or a combination thereof, and, if of a combination thereof, the amount allocable to each. Upon receipt of such notice, the Administrative Agent shall promptly notify each Revolving Credit Lender. If any such notice is given, the amount specified in such notice shall be due and payable on the date set forth in such notice. Partial prepayments shall be in an aggregate amount of $1,000,000 or a whole multiple of $1,000,000 in excess thereof with respect to Base Rate Loans (other than Swingline Loans), $1,000,000 or a whole multiple of $1,000,000 in excess thereof with respect to LIBOR Rate Loans, and $500,000 or a whole multiple of $100,000 in excess thereof with respect to Swingline Loans. A Notice of Prepayment received after 11:00 a.m. shall be deemed received on the next Business Day. Each such repayment shall be accompanied by any amount required to be paid pursuant to Section 5.9 hereof. Notwithstanding the foregoing, any Notice of a Prepayment delivered by the Borrower may state that such notice is conditioned upon the effectiveness of other credit facilities or other transactions or events specified therein, in which case such notice may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied (provided that the failure of such condition to be satisfied shall not relieve the Borrower from its obligations in respect thereof under Section 5.9).

 

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(d)              [Reserved].

 

(e)              Limitation on Prepayment of LIBOR Rate Loans. The Borrower may not prepay any LIBOR Rate Loan on any day other than on the last day of the Interest Period applicable thereto unless such prepayment is accompanied by any amount required to be paid pursuant to Section 5.9 hereof.

 

(f)               Hedge Agreements. No repayment or prepayment of the Loans pursuant to this Section shall affect any of the Borrower’s obligations under any Hedge Agreement entered into with respect to the Loans.

 

SECTION 2.5      Permanent Reduction of the Revolving Credit Commitment.

 

(a)              Voluntary Reduction. The Borrower shall have the right at any time and from time to time, upon at least five (5) Business Days prior irrevocable written notice to the Administrative Agent, to permanently reduce, without premium or penalty: (i) the entire Revolving Credit Commitment at any time; or (ii) portions of the Revolving Credit Commitment, from time to time, in an aggregate principal amount not less than $1,000,000 or any whole multiple of $1,000,000 in excess thereof. Any reduction of the Revolving Credit Commitment shall be applied to the Revolving Credit Commitment of each Revolving Credit Lender according to its Revolving Credit Commitment Percentage. All Commitment Fees accrued until the effective date of any termination of the Revolving Credit Commitment shall be paid on the effective date of such termination. Notwithstanding the foregoing, any notice to reduce the Revolving Credit Commitment delivered by the Borrower may state that such notice is conditioned upon the effectiveness of other credit facilities or other transactions or events specified therein, in which case such notice may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied (provided that the failure of such condition to be satisfied shall not relieve the Borrower from its obligations in respect thereof under Section 5.9).

 

(b)              Corresponding Payment. Each permanent reduction permitted pursuant to this Section shall be accompanied by a payment of principal sufficient to reduce the aggregate outstanding Revolving Credit Loans, Swingline Loans and L/C Obligations, as applicable, after such reduction to the Revolving Credit Commitment as so reduced, and if the aggregate amount of all outstanding Letters of Credit exceeds the Revolving Credit Commitment as so reduced, the Borrower shall be required to deposit Cash Collateral in a Cash Collateral account opened by the Administrative Agent in an amount equal to such excess. Such Cash Collateral shall be applied in accordance with Section 10.2(b). Any reduction of the Revolving Credit Commitment to zero shall be accompanied by payment of all outstanding Revolving Credit Loans and Swingline Loans (and furnishing of Cash Collateral satisfactory to the Administrative Agent for all L/C Obligations) and shall result in the termination of the Revolving Credit Commitment and the Swingline Commitment and the Revolving Credit Facility. If the reduction of the Revolving Credit Commitment requires the repayment of any LIBOR Rate Loan, such repayment shall be accompanied by any amount required to be paid pursuant to Section 5.9 hereof.

 

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SECTION 2.6       Termination of Revolving Credit Facility. The Revolving Credit Facility and the Revolving Credit Commitments shall terminate on the Revolving Credit Maturity Date.

 

ARTICLE III

 

LETTER OF CREDIT FACILITY

 

SECTION 3.1      L/C Facility.

 

(a)              Availability. Subject to the terms and conditions of this Agreement and the other Loan Documents, including, without limitation, Section 6.2(d) and Section 6.2(e), each Issuing Lender, in reliance on the representations and warranties set forth in the Agreement and the other Loan Documents and on the agreements of the Revolving Credit Lenders set forth in Section 3.4(a), agrees to issue standby Letters of Credit, in an aggregate amount not to exceed its L/C Commitment, for the account of the Borrower or, subject to Section 3.10, any Subsidiary thereof on any Business Day from the Effective Date to, but not including the fifth (5th) Business Day prior to the Revolving Credit Maturity Date, in such form as may be approved from time to time by the applicable Issuing Lender; provided that no Issuing Lender shall issue any Letter of Credit if, after giving effect to such issuance: (a) the L/C Obligations would exceed the L/C Sublimit; (b) the Revolving Credit Outstandings would exceed the Revolving Credit Commitment; or (c) the Revolving Credit Exposure of any Revolving Credit Lender would exceed such Lender’s Revolving Credit Commitment.

 

(b)              Form and Amount. Each Letter of Credit shall: (i) be denominated in Dollars or in an Alternative Currency in a minimum amount agreed to by the Issuing Lender; (ii) be a standby letter of credit issued to support obligations of the Borrower or any of its Subsidiaries, contingent or otherwise, incurred in the ordinary course of business; (iii) expire on a date no more than twelve (12) months after the date of issuance or last renewal of such Letter of Credit (subject to automatic renewal for additional one (1) year periods pursuant to the terms of the Letter of Credit Application or other documentation acceptable to the applicable Issuing Lender), which date shall be no later than the fifth (5th) Business Day prior to the Revolving Credit Maturity Date; and (iv) be subject to the ISP98 as set forth in the Letter of Credit Application or as determined by the applicable Issuing Lender and, to the extent not inconsistent therewith, the laws of the State of New York.

 

(c)              Restrictions on Issuance. No Issuing Lender shall at any time be obligated to issue any Letter of Credit hereunder if: (i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such Issuing Lender from issuing such Letter of Credit, or any Applicable Law applicable to such Issuing Lender or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such Issuing Lender shall prohibit, or request that such Issuing Lender refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such Issuing Lender with respect to letters of credit generally or such Letter of Credit in particular any restriction or reserve or capital requirement (for which such Issuing Lender is not otherwise compensated) not in effect on the Effective Date, or any unreimbursed loss, cost or expense that was not applicable, in effect or known to such Issuing Lender as of the Effective Date and that such Issuing Lender in good faith deems material to it; or (ii) the conditions set forth in Section 6.2 are not satisfied. References herein to “issue” and derivations thereof with respect to Letters of Credit shall also include extensions or modifications of any outstanding Letters of Credit, unless the context otherwise requires.

 

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(d)              Defaulting Lenders. Notwithstanding anything to the contrary contained in this Agreement, Article III shall be subject to the terms and conditions of Section 5.14 and Section 5.15.

 

SECTION 3.2      Procedure for Issuance of Letters of Credit. The Borrower may from time to time request that any Issuing Lender issue a Letter of Credit by delivering to such Issuing Lender at its applicable office (with a copy to the Administrative Agent at the Administrative Agent’s Office) a Letter of Credit Application therefor, completed to the satisfaction of such Issuing Lender, and such other certificates, documents and other papers and information as such Issuing Lender or the Administrative Agent may request. Upon receipt of any Letter of Credit Application, the applicable Issuing Lender shall, process such Letter of Credit Application and the certificates, documents and other papers and information delivered to it in connection therewith in accordance with its customary procedures and shall, subject to Section 3.1 and Article VI, promptly issue the Letter of Credit requested thereby (but in no event shall such Issuing Lender be required to issue any Letter of Credit earlier than three (3) Business Days after its receipt of the Letter of Credit Application therefor and all such other certificates, documents and other papers and information relating thereto) by issuing the original of such Letter of Credit to the beneficiary thereof or as otherwise may be agreed by such Issuing Lender and the Borrower. The applicable Issuing Lender shall promptly furnish to the Borrower and the Administrative Agent a copy of such Letter of Credit and the Administrative Agent shall promptly notify each Revolving Credit Lender of the issuance and upon request by any Lender, furnish to such Revolving Credit Lender a copy of such Letter of Credit and the amount of such Revolving Credit Lender’s participation therein.

 

SECTION 3.3      Commissions and Other Charges.

 

(a)              Letter of Credit Commissions. Subject to Section 5.15(a)(iii)(B), the Borrower shall pay to the Administrative Agent, for the account of the applicable Issuing Lender and the L/C Participants, in Dollars, a letter of credit commission with respect to each Letter of Credit in the amount equal to the Dollar Equivalent of the daily amount available to be drawn under such standby Letters of Credit times the Applicable Margin with respect to Revolving Credit Loans that are LIBOR Rate Loans (determined, in each case, on a per annum basis). Such commission shall be payable quarterly in arrears on the last Business Day of each calendar quarter, on the Revolving Credit Maturity Date and thereafter on demand of the Administrative Agent. The Administrative Agent shall, promptly following its receipt thereof, distribute to the applicable Issuing Lender and the L/C Participants all commissions received pursuant to this Section 3.3 in accordance with their respective Revolving Credit Commitment Percentages.

 

(b)              Issuance Fee. In addition to the foregoing commission, the Borrower shall pay directly to the applicable Issuing Lender, for its own account and in Dollars, an issuance fee with respect to each Letter of Credit issued by such Issuing Lender as set forth in the Fee Letter executed by such Issuing Lender. Such issuance fee shall be payable quarterly in arrears on the last Business Day of each calendar quarter commencing with the first such date to occur after the issuance of such Letter of Credit, on the Revolving Credit Maturity Date and thereafter on demand of the applicable Issuing Lender.

 

(c)              Other Fees, Costs, Charges and Expenses. In addition to the foregoing fees and commissions, the Borrower shall pay or reimburse each Issuing Lender in Dollars for such normal and customary fees, costs, charges and expenses as are incurred or charged by such Issuing Lender in issuing, effecting payment under, amending or otherwise administering any Letter of Credit issued by it.

 

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SECTION 3.4      L/C Participations.

 

(a)              Each Issuing Lender irrevocably agrees to grant and hereby grants to each L/C Participant, and, to induce each Issuing Lender to issue Letters of Credit hereunder, each L/C Participant irrevocably agrees to accept and purchase and hereby accepts and purchases from each Issuing Lender, on the terms and conditions hereinafter stated, for such L/C Participant’s own account and risk, an undivided interest equal to such L/C Participant’s Revolving Credit Commitment Percentage in each Issuing Lender’s obligations and rights under and in respect of each Letter of Credit issued by it hereunder and the amount of each draft paid by such Issuing Lender thereunder. Each L/C Participant unconditionally and irrevocably agrees with each Issuing Lender that, if a draft is paid under any Letter of Credit issued by such Issuing Lender for which such Issuing Lender is not reimbursed in full by the Borrower through a Revolving Credit Loan or otherwise in accordance with the terms of this Agreement, such L/C Participant shall pay to such Issuing Lender upon demand, in Dollars, at such Issuing Lender’s address for notices specified herein an amount equal to such L/C Participant’s Revolving Credit Commitment Percentage of the Dollar Equivalent of the amount of such draft, or any part thereof, which is not so reimbursed.

 

(b)              Upon becoming aware of any amount required to be paid by any L/C Participant to any Issuing Lender pursuant to Section 3.4(a) in respect of any unreimbursed portion of any payment made by such Issuing Lender under any Letter of Credit, issued by it, such Issuing Lender shall notify the Administrative Agent of such unreimbursed amount and the Administrative Agent shall notify each L/C Participant (with a copy to the applicable Issuing Lender) of the amount and due date of such required payment and such L/C Participant shall pay to the Administrative Agent (which, in turn shall pay such Issuing Lender) the amount specified on the applicable due date. If any such amount is paid to such Issuing Lender after the date such payment is due, such L/C Participant shall pay to such Issuing Lender on demand, in addition to such amount, the product of: (i) such amount; times (ii) the Overnight Rate as determined by the Administrative Agent during the period from and including the date such payment is due to the date on which such payment is immediately available to such Issuing Lender; times (iii) a fraction the numerator of which is the number of days that elapse during such period and the denominator of which is 360. A certificate of such Issuing Lender with respect to any amounts owing under this Section shall be conclusive in the absence of manifest error. With respect to payment to such Issuing Lender of the unreimbursed amounts described in this Section, if the L/C Participants receive notice that any such payment is due (A) prior to 1:00 p.m. on any Business Day, such payment shall be due that Business Day, and (B) after 1:00 p.m. on any Business Day, such payment shall be due on the following Business Day.

 

(c)              Whenever, at any time after any Issuing Lender has made payment under any Letter of Credit issued by it and has received from any L/C Participant its Revolving Credit Commitment Percentage of such payment in accordance with this Section, such Issuing Lender receives any payment related to such Letter of Credit (whether directly from the Borrower or otherwise), or any payment of interest on account thereof, such Issuing Lender will promptly distribute to such L/C Participant its pro rata share thereof; provided, that in the event that any such payment received by such Issuing Lender shall be required to be returned by such Issuing Lender, such L/C Participant shall promptly return in Dollars to such Issuing Lender the portion thereof previously distributed by such Issuing Lender to it.

 

(d)              Each L/C Participant’s obligation to make the Revolving Credit Loans referred to in Section 3.4(b) and to purchase participating interests pursuant to Section 3.4(a) shall be absolute and unconditional and shall not be affected by any circumstance, including (i) any setoff, counterclaim, recoupment, defense or other right that such Revolving Credit Lender or the Borrower may have against the Issuing Lender, the Borrower or any other Person for any reason whatsoever, (ii) with respect to the obligation to purchase participating interests pursuant to Section 3.4(a), the occurrence or continuance of a Default or an Event of Default or the failure to satisfy any of the other conditions specified in Article VI, (iii) any adverse change in the condition (financial or otherwise) of the Borrower, (iv) any breach of this Agreement or any other Loan Document by the Borrower, any other Credit Party or any other Revolving Credit Lender or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.

 

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SECTION 3.5       Reimbursement Obligation of the Borrower. In the event of any drawing under any Letter of Credit, the Borrower agrees to reimburse (either with the proceeds of a Revolving Credit Loan as provided for in this Section or with funds from other sources), in same day funds, in Dollars, the applicable Issuing Lender on each date on which such Issuing Lender notifies the Borrower of the date and amount of a draft paid by it under any Letter of Credit for the Dollar Equivalent of the amount of (a) such draft so paid and (b) any amounts referred to in Section 3.3(c) incurred by such Issuing Lender in connection with such payment. Unless the Borrower shall immediately notify such Issuing Lender that the Borrower intends to reimburse such Issuing Lender for such drawing from other sources or funds, the Borrower shall be deemed to have timely given a Notice of Borrowing to the Administrative Agent requesting that the Revolving Credit Lenders make a Revolving Credit Loan as a Base Rate Loan on the applicable repayment date in the Dollar Equivalent of the amount of (i) such draft so paid and (ii) any amounts referred to in Section 3.3(c) incurred by such Issuing Lender in connection with such payment, and, subject to satisfaction or waiver of the conditions specified in Section 6.02, the Revolving Credit Lenders shall make a Revolving Credit Loan as a Base Rate Loan in such amount, the proceeds of which shall be applied to reimburse such Issuing Lender for the amount of the related drawing and such fees and expenses. Each Revolving Credit Lender acknowledges and agrees that its obligation to fund a Revolving Credit Loan in accordance with this Section to reimburse such Issuing Lender for any draft paid under a Letter of Credit issued by it is absolute and unconditional and shall not be affected by any circumstance whatsoever, including, without limitation, non-satisfaction of the conditions set forth in Section 2.3(a), except for the failure to satisfy any of the conditions specified in Section 6.02 which have not been waived. If the Borrower has elected to pay the amount of such drawing with funds from other sources and shall fail to reimburse such Issuing Lender as provided above, or if the amount of such drawing is not fully refunded through a Base Rate Loan as provided above, the unreimbursed amount of such drawing shall bear interest at the rate which would be payable on any outstanding Base Rate Loans which were then overdue from the date such amounts become payable (whether at stated maturity, by acceleration or otherwise) until payment in full.

 

SECTION 3.6      Obligations Absolute. The Borrower’s obligations under this Article III (including, without limitation, the Reimbursement Obligation) shall be absolute and unconditional under any and all circumstances and irrespective of any set off, counterclaim or defense to payment which the Borrower may have or have had against the applicable Issuing Lender or any beneficiary of a Letter of Credit or any other Person. The Borrower also agrees that the applicable Issuing Lender and the L/C Participants shall not be responsible for, and the Borrower’s Reimbursement Obligation under Section 3.5 shall not be affected by, among other things, the validity or genuineness of documents or of any endorsements thereon, even though such documents shall in fact prove to be invalid, fraudulent or forged, or any dispute between or among the Borrower and any beneficiary of any Letter of Credit or any other party to which such Letter of Credit may be transferred or any claims whatsoever of the Borrower against any beneficiary of such Letter of Credit or any such transferee, or 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. Any Issuing Lender shall not be liable for any error, omission, interruption or delay in transmission, dispatch or delivery of any message or advice, however transmitted, in connection with any Letter of Credit issued by it, except for errors or omissions caused by such Issuing Lender’s gross negligence or willful misconduct, as determined by a court of competent jurisdiction by final nonappealable judgment. The Borrower agrees that any action taken or omitted by any Issuing Lender under or in connection with any Letter of Credit issued by it or the related drafts or documents, if done in the absence of gross negligence or willful misconduct shall be binding on the Borrower and shall not result in any liability of such Issuing Lender or any L/C Participant to the Borrower. The responsibility of any Issuing Lender to the Borrower in connection with any draft presented for payment under any Letter of Credit issued by it shall, in addition to any payment obligation expressly provided for in such Letter of Credit, be limited to determining that the documents (including each draft) delivered under such Letter of Credit in connection with such presentment substantially conforms to the requirements under such Letter of Credit.

 

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SECTION 3.7      Effect of Letter of Credit Application. To the extent that any provision of any Letter of Credit Application related to any Letter of Credit is inconsistent with the provisions of this Article III, the provisions of this Article III shall apply.

 

SECTION 3.8      Resignation of Issuing Lenders.

 

(a)              Any Lender may at any time resign from its role as an Issuing Lender hereunder upon not less than thirty (30) days prior notice to the Borrower and the Administrative Agent (or such shorter period of time as may be acceptable to the Borrower and the Administrative Agent).

 

(b)              Any resigning Issuing Lender shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit issued by it that are outstanding as of the effective date of its resignation as an Issuing Lender and all L/C Obligations with respect thereto (including, without limitation, the right to require the Revolving Credit Lenders to take such actions as are required under Section 3.4). Without limiting the foregoing, upon the resignation of a Lender as an Issuing Lender hereunder, the Borrower may, or at the request of such resigned Issuing Lender the Borrower shall, use commercially reasonable efforts to, arrange for one or more of the other Issuing Lenders to issue Letters of Credit hereunder in substitution for the Letters of Credit, if any, issued by such resigned Issuing Lender and outstanding at the time of such resignation, or make other arrangements satisfactory to the resigned Issuing Lender to effectively cause another Issuing Lender to assume the obligations of the resigned Issuing Lender with respect to any such Letters of Credit.

 

SECTION 3.9       Reporting of Letter of Credit Information and L/C Commitment. At any time that there is an Issuing Lender that is not also the financial institution acting as Administrative Agent, then: (a) on the last Business Day of each calendar month; (b) on each date that a Letter of Credit is amended, terminated or otherwise expires; (c) on each date that a Letter of Credit is issued or the expiry date of a Letter of Credit is extended; and (d) upon the request of the Administrative Agent, each Issuing Lender (or, in the case of clauses (b), (c) or (d) of this Section, the applicable Issuing Lender) shall deliver to the Administrative Agent a report setting forth in form and detail reasonably satisfactory to the Administrative Agent information (including, without limitation, any reimbursement, Cash Collateral, or termination in respect of Letters of Credit issued by such Issuing Lender) with respect to each Letter of Credit issued by such Issuing Lender that is outstanding hereunder. In addition, each Issuing Lender shall provide notice to the Administrative Agent of its L/C Commitment, or any change thereto, promptly upon it becoming an Issuing Lender or making any change to its L/C Commitment. No failure on the part of any Issuing Lender to provide such information pursuant to this Section 3.9 shall limit the obligations of the Borrower or any Revolving Credit Lender hereunder with respect to its reimbursement and participation obligations hereunder.

 

SECTION 3.10      Letters of Credit Issued for Subsidiaries. Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support of any obligations of, or is for the account of, a Subsidiary, the Borrower shall be obligated to reimburse, or to cause the applicable Subsidiary to reimburse, the applicable Issuing Lender hereunder 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 of its Subsidiaries inures to the benefit of the Borrower and that the Borrower’s business derives substantial benefits from the businesses of such Subsidiaries.

 

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ARTICLE IV

 

TERM LOAN FACILITY

SECTION 4.1      [Reserved].

 

SECTION 4.2      Procedure for Advance of Term Loan.

 

(a)              [Reserved].

 

(b)             Incremental Term Loans. Any Incremental Term Loans shall be borrowed pursuant to, and in accordance with Section 5.13.

 

SECTION 4.3      Repayment of Term Loans.

 

(a)              [Reserved].

 

(b)                 Incremental Term Loans. The Borrower shall repay the aggregate outstanding principal amount of each Incremental Term Loan (if any) as determined pursuant to, and in accordance with, Section 5.13 and the applicable Lender Joinder Agreement.

 

SECTION 4.4      Prepayments of Term Loans.

 

(a)              Optional Prepayments. Subject to the terms of any applicable Lender Joinder Agreement, the Borrower shall have the right at any time and from time to time, without premium or penalty (except as set forth in Section 5.9), to prepay the Term Loans, in whole or in part, upon delivery to the Administrative Agent of a Notice of Prepayment not later than 11:00 a.m.: (i) on the same Business Day with respect to each Base Rate Loan (or such later time as approved by the Administrative Agent); and (ii) at least three (3) Business Days before with respect to each LIBOR Rate Loan (or such later time as approved by the Administrative Agent), specifying the date and amount of repayment, whether the repayment is of LIBOR Rate Loans or Base Rate Loans or a combination thereof, and if a combination thereof, the amount allocable to each and whether the repayment is of a particular Series of Incremental Term Loans or a combination thereof, and if a combination thereof, the amount allocable to each. Each optional prepayment of the Term Loans hereunder shall be in an aggregate principal amount of at least $1,000,000 or any whole multiple of $1,000,000 in excess thereof and shall be applied as permitted by the applicable Lender Joinder Agreements. Each repayment shall be accompanied by any amount required to be paid pursuant to Section 5.9 hereof. A Notice of Prepayment received after 11:00 a.m. shall be deemed received on the next Business Day. The Administrative Agent shall promptly notify the applicable Term Loan Lenders of each Notice of Prepayment. Notwithstanding the foregoing, any Notice of Prepayment delivered by the Borrower may state that such notice is conditioned upon the effectiveness of other credit facilities or other transactions or events specified therein, in which case such notice may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied (provided that the failure of such condition to be satisfied shall not relieve the Borrower from its obligations in respect thereof under Section 5.9).

 

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(b)Mandatory Prepayments.

 

(i)             Debt Issuances. The Borrower shall make mandatory principal prepayments of the Term Loans in the manner set forth in clause (v) below in an amount equal to one hundred percent (100%) of the aggregate Net Cash Proceeds from any Debt Issuance not otherwise permitted pursuant to Section 9.1. Such prepayment shall be made within three (3) Business Days after the date of receipt of the Net Cash Proceeds of any such Debt Issuance.

 

(ii)            Asset Dispositions and Insurance and Condemnation Events. Subject to Section 4.4(b)(iv), the Borrower shall make mandatory principal prepayments of the Term Loans in the manner set forth in clause (v) below in amounts equal to one hundred percent (100%) of the aggregate Net Cash Proceeds from: (A) any Asset Disposition (other than any Asset Disposition permitted pursuant to, and in accordance with, clauses (a), (b), (c), (d), (f), (g), (h), (i), (j), (k), (l) (m) and (p) of Section 9.5); or (B) any Insurance and Condemnation Event; provided that, (1) no mandatory prepayment shall be required under this clause (ii) with respect to any individual or series of related Asset Dispositions or Insurance and Condemnation Events that results in Net Cash Proceeds not in excess of $5,000,000 for such single event or series of related events and (2) no mandatory prepayment shall be required in any Fiscal Year pursuant to this clause (ii) until the date on which the Net Cash Proceeds required to be applied as mandatory prepayments pursuant to this clause (ii) in such Fiscal Year shall exceed $10,000,000 (and thereafter only Net Cash Proceeds in excess of such amount shall be required to be applied to mandatory prepayments pursuant to this clause (ii)). Such prepayments shall be made within three (3) Business Days after the date of receipt of the Net Cash Proceeds; provided that, so long as no Default or Event of Default has occurred and is continuing at the time of receipt of such Net Cash Proceeds, no prepayment shall be required under this Section 4.4(b)(ii) with respect to such portion of such Net Cash Proceeds that the Borrower shall have, on or prior to such date given written notice to the Administrative Agent of its intent to reinvest in accordance with Section 4.4(b)(iii) ; provided, however, that any Lender may elect in its sole discretion, by delivering a written notice to the Administrative Agent promptly after receiving notice from the Administrative Agent of any such prepayment pursuant to this Section 4.4(b)(ii), to forego its ratable portion of any such prepayment, in which case such declined portion of the prepayment may be retained by the Borrower.

 

(iii)           Reinvestment Option. With respect to any Net Cash Proceeds realized or received with respect to any Asset Disposition or any Insurance and Condemnation Event by any Credit Party of any Subsidiary thereof (in each case, to the extent not excluded pursuant to Section 4.4(b)(ii)), at the option of the Borrower, the Credit Parties or any of their Subsidiaries may reinvest all or any portion of such Net Cash Proceeds in assets used or useful for the business of the Credit Parties and their Subsidiaries within: (x) twelve (12) months following receipt of such Net Cash Proceeds; or (y) if such Credit Party or Subsidiary, within twelve (12) months following receipt of such Net Cash Proceeds, enters into a bona fide commitment to reinvest such Net Cash Proceeds, within eighteen (18) months following receipt of such Net Cash Proceeds; provided that if any Net Cash Proceeds have not been so reinvested within such twelve (12) months or eighteen (18) months, as applicable, an amount equal to such Net Cash Proceeds that have not been so reinvested shall be applied to the repayment of the Term Loans pursuant to Section 4.4(b) within three (3) Business Days after the end of such twelve (12) twelve months or eighteen (18) months, as applicable. Pending the final application of any such Net Cash Proceeds, the applicable Credit Party may invest an amount equal to such Net Cash Proceeds in any manner that is not prohibited by this Agreement.

 

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(iv)           Restriction on Mandatory Prepayments. Notwithstanding any other provision of this Section 4.4(b), to the extent that any or all of the Net Cash Proceeds of a Foreign Disposition or the Net Cash Proceeds of any Foreign Casualty Event is prohibited or delayed by applicable local law or organizational document restrictions (including financial assistance, corporate benefit, restrictions on dividends and the fiduciary and statutory duties of directors of the applicable Foreign Subsidiaries and as a result of minority ownership in the applicable Foreign Subsidiaries) from being repatriated to the United States, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to make a prepayment of the Term Loans at the time provided in this Section 4.4(b). Instead, such amounts may be retained so long as, but only so long as, the applicable local law or organizational document restriction will not permit repatriation to the United States (the Borrower hereby agreeing to cause the applicable Foreign Subsidiary for a period of one year after the occurrence of the applicable Foreign Disposition or Foreign Casualty Event to promptly take all commercially reasonable actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local law, such repatriation will be promptly (and in any event not later than three (3) Business Days after such repatriation) applied (net of additional taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 4.4(b). In addition, notwithstanding any other provision of this Section 4.4(b), to the extent the Borrower has reasonably determined in good faith that repatriation of any or all of the Net Cash Proceeds of any Foreign Disposition or any Foreign Casualty Event would have an adverse tax consequence (taking into account any foreign tax credit or benefit received in connection with such repatriation), then, to the extent that such adverse tax consequence is not directly attributable to actions taken by the Borrower or any of its Subsidiaries with the intent of avoiding or reducing any mandatory prepayment otherwise required, the Borrower shall not be required to make a prepayment with an amount equal to such portion of Net Cash Proceeds as required pursuant to this Section 4.4(b). Instead, such amounts may be retained so long as, but only so long as, repatriation of the Net Cash Proceeds would have an adverse tax consequence (the Borrower hereby agreeing to use commercially reasonable efforts for a period of one year after such Foreign Disposition or Foreign Casualty Event to reduce or eliminate such adverse tax consequence) and once such repatriation would not have an adverse tax consequence, an amount equal to such Net Cash Proceeds will be promptly (and in any event not later than three (3) Business Days after such repatriation would not have an adverse tax consequence) applied (net of additional taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 4.4(b). Notwithstanding the foregoing, the Borrower agrees to use commercially reasonable efforts for a period of one year after the occurrence of the applicable Foreign Disposition or Foreign Casualty Event to use other cash resources of the Borrower and its Subsidiaries (subject to the limitations set forth in this clause (iv)) to make any such mandatory prepayment required by this Section 4.4(b).

 

(v)          Notice; Manner of Payment. Upon the occurrence of any event triggering the prepayment requirement under clauses (i) and (ii) above, the Borrower shall promptly deliver a Notice of Prepayment to the Administrative Agent and upon receipt of such notice, the Administrative Agent shall promptly so notify the Lenders. Each prepayment of the Term Loans under this Section shall be applied ratably between each Series of Term Loans (unless otherwise agreed by the Lenders of the applicable Series of Term Loans) to reduce in inverse order of maturity the remaining scheduled principal installments of each such Series pursuant to Section 4.3 (or such other order as is set forth in the Lender Joinder Agreement for such Series).

 

(vi)          Prepayment of LIBOR Rate Loans. Each prepayment shall be accompanied by any amount required to be paid pursuant to Section 5.9; provided that, so long as no Default or Event of Default shall have occurred and be continuing, if any prepayment of LIBOR Rate Loans is required to be made under this Section 4.4(b) prior to the last day of the Interest Period therefor, in lieu of making any payment pursuant to this Section 4.4(b) in respect of any such LIBOR Rate Loan prior to the last day of the Interest Period therefor, the Borrower may, in its sole discretion, deposit an amount sufficient to make any such prepayment otherwise required to be made thereunder together with accrued interest to the last day of such Interest Period into an account held at, and subject to the sole control of, the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from the Borrower or any other Credit Party) to apply such amount to the prepayment of such Term Loans in accordance with this Section 4.4(b). Upon the occurrence and during the continuance of any Default or Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from the Borrower or any other Credit Party) to apply such amount to the prepayment of the outstanding Term Loans in accordance with the relevant provisions of this Section 4.4(b).

 

(vii)          No Reborrowings. Amounts applied to the repayment or prepayment of the Term Loans pursuant to this Section may not be reborrowed.

 

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ARTICLE V

 

GENERAL LOAN PROVISIONS

SECTION 5.1         Interest.

 

(a)                 Interest Rate Options. Subject to the provisions of this Section, at the election of the Borrower: (i) Revolving Credit Loans and the Term Loans shall bear interest at: (A) the Base Rate plus the Applicable Margin; or (B) the LIBOR Rate plus the Applicable Margin (provided that the LIBOR Rate shall not be available until three (3) Business Days (or four (4) Business Days with respect to a LIBOR Rate based on a twelve month Interest Period) after the Effective Date unless the Borrower has delivered to the Administrative Agent a letter in form and substance reasonably satisfactory to the Administrative Agent indemnifying the Lenders in the manner set forth in Section 5.9 of this Agreement); and (ii) any Swingline Loan shall bear interest at the Base Rate plus the Applicable Margin. The Borrower shall select the rate of interest and Interest Period, if any, applicable to any Loan at the time a Notice of Borrowing is given or at the time a Notice of Conversion/Continuation is given pursuant to Section 5.2.

 

(b)                 Default Rate. Subject to Section 10.3: (i) immediately upon the occurrence and during the continuance of an Event of Default under Section 10.1(a), (b), (h) or (i); or (ii) at the election of the Required Lenders (or of the Administrative Agent at the direction of the Required Lenders), upon the occurrence and during the continuance of any other Event of Default: (A) the Borrower shall no longer have the option to request LIBOR Rate Loans, Swingline Loans or Letters of Credit; (B) all outstanding LIBOR Rate Loans shall bear interest at a rate per annum of two percent (2%) in excess of the rate (including the Applicable Margin) then applicable to LIBOR Rate Loans until the end of the applicable Interest Period and thereafter at a rate equal to two percent (2%) in excess of the rate (including the Applicable Margin) then applicable to Base Rate Loans; (C) all outstanding Base Rate Loans and other Obligations arising hereunder or under any other Loan Document shall bear interest at a rate per annum equal to two percent (2%) in excess of the rate (including the Applicable Margin) then applicable to Base Rate Loans or such other Obligations arising hereunder or under any other Loan Document; and (D) all accrued and unpaid interest shall be due and payable on demand of the Administrative Agent. Interest shall continue to accrue on the Obligations after the filing by or against the Borrower of any petition seeking any relief in bankruptcy or under any Debtor Relief Law.

 

(c)                 Interest Payment and Computation. Interest on each Base Rate Loan shall be due and payable in arrears on the last Business Day of each calendar quarter commencing with the last Business Day of the first calendar quarter ending after the Effective Date; and interest on each LIBOR Rate Loan shall be due and payable on the last day of each Interest Period applicable thereto, and if such Interest Period extends over three (3) months, at the end of each three (3) month interval during such Interest Period. All computations of interest for Base Rate Loans when the Base Rate is determined by the Prime 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 provided hereunder shall be made on the basis of a 360-day year and actual days elapsed (which results in more fees or interest, as applicable, being paid than if computed on the basis of a 365/366-day year).

 

(d)                 Maximum Rate. In no contingency or event whatsoever shall the aggregate of all amounts deemed interest under this Agreement charged or collected pursuant to the terms of this Agreement exceed the highest rate permissible under any Applicable Law which a court of competent jurisdiction shall, in a final determination, deem applicable hereto. In the event that such a court determines that the Lenders have charged or received interest hereunder in excess of the highest applicable rate, the rate in effect hereunder shall automatically be reduced to the maximum rate permitted by Applicable Law and the Lenders shall at the Administrative Agent’s option: (i) promptly refund to the Borrower any interest received by the Lenders in excess of the maximum lawful rate; or (ii) apply such excess to the principal balance of the Obligations. It is the intent hereof that the Borrower not pay or contract to pay, and that neither the Administrative Agent nor any Lender receive or contract to receive, directly or indirectly in any manner whatsoever, interest in excess of that which may be paid by the Borrower under Applicable Law.

 

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SECTION 5.2        Notice and Manner of Conversion or Continuation of Loans. Provided that no Default or Event of Default has occurred and is then continuing, the Borrower shall have the option to: (a)  convert at any time following the third (3rd) Business Day after the Effective Date all or any portion of any outstanding Base Rate Loans (other than Swingline Loans) in a principal amount equal to $1,000,000 or any whole multiple of $100,000 in excess thereof into one or more LIBOR Rate Loans; and (b)  upon the expiration of any Interest Period: (i) convert all or any part of its outstanding LIBOR Rate Loans in a principal amount equal to $1,000,000 or a whole multiple of $100,000 in excess thereof into Base Rate Loans (other than Swingline Loans); or (ii) continue such LIBOR Rate Loans as LIBOR Rate Loans. Whenever the Borrower desires to convert or continue Loans as provided above, the Borrower shall give the Administrative Agent irrevocable prior written notice in the form attached as Exhibit E (a “Notice of Conversion/Continuation”) not later than 11:00 a.m. three (3) Business Days before the day on which a proposed conversion or continuation of such Loan is to be effective specifying: (A) the Loans to be converted or continued, and, in the case of any LIBOR Rate Loan to be converted or continued, the last day of the Interest Period therefor; (B) the effective date of such conversion or continuation (which shall be a Business Day); (C) the principal amount of such Loans to be converted or continued; and (D)  the Interest Period to be applicable to such converted or continued LIBOR Rate Loan; provided that if the Borrower wishes to request LIBOR Rate Loans having an Interest Period of twelve months in duration, such notice must be received by the Administrative Agent not later than 11:00 a.m. four (4) Business Days prior to the requested date of such conversion or continuation, whereupon the Administrative Agent shall give prompt notice to the applicable Lenders of such request and determine whether the requested Interest Period is acceptable to all of them; provided, further, that the Notice of Borrowing with respect to the Loans to be borrowed on the Effective Date may be in such form and may be delivered on such shorter notice as may be agreed by the Administrative Agent. If the Borrower fails to give a timely Notice of Conversion/Continuation prior to the end of the Interest Period for any LIBOR Rate Loan, then the applicable LIBOR Rate Loan shall be continued as a LIBOR Rate Loan and will be deemed to have the same Interest Period as was then in effect prior to the expiration of the previous Interest Period during which the Borrower failed to give a timely Notice of Conversion/Continuation. Any such automatic continuation of a LIBOR Rate Loan shall be effective as of the last day of the Interest Period then in effect with respect to the applicable LIBOR Rate Loan. If the Borrower requests a conversion to, or continuation of, LIBOR Rate Loans, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month. Notwithstanding anything to the contrary herein, a Swingline Loan may not be converted to a LIBOR Rate Loan. The Administrative Agent shall promptly notify the affected Lenders of such Notice of Conversion/Continuation.

 

SECTION 5.3        Fees.

 

(a)                 Commitment Fee. Commencing on the Effective Date, subject to Section 5.15(a)(iii)(A), the Borrower shall pay to the Administrative Agent, for the account of the Revolving Credit Lenders, a non-refundable commitment fee (the “Commitment Fee”), at a rate per annum equal to the applicable amount for Commitment Fees set forth in the definition of “Applicable Margin”, on the average daily unused portion of the Revolving Credit Commitment of the Revolving Credit Lenders (other than the Defaulting Lenders, if any); provided that the amount of outstanding Swingline Loans shall not be considered usage of the Revolving Credit Commitment for the purpose of calculating the Commitment Fee. The Commitment Fee shall be fully earned and due and payable quarterly in arrears (calculated on a 360-day basis) on the last Business Day of each calendar quarter during the term of this Agreement commencing with the last Business Day of the first calendar quarter ending after the Effective Date and ending on the date upon which all Obligations (other than contingent indemnification obligations not then due) arising under the Revolving Credit Facility shall have been indefeasibly and irrevocably paid and satisfied in full, all Letters of Credit have been terminated or expired (or been Cash Collateralized) and the Revolving Credit Commitment has been terminated. The Commitment Fee shall be distributed by the Administrative Agent to the Revolving Credit Lenders (other than any Defaulting Lender) pro rata in accordance with such Revolving Credit Lenders’ respective Revolving Credit Commitment Percentages.

 

(b)                 Other Fees. The Borrower shall pay to the Arrangers and the Administrative Agent for their own respective accounts fees in the amounts and at the times specified in their respective Fee Letters. The Borrower shall pay to the Lenders such fees as shall have been separately agreed upon in writing in the amounts and at the times so specified.

 

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SECTION 5.4        Manner of Payment. Each payment by the Borrower on account of the principal of or interest on the Loans or of any fee, commission or other amounts (including the Reimbursement Obligation) payable to the Lenders under this Agreement shall be made not later than 1:00 p.m. on the date specified for payment under this Agreement to the Administrative Agent at the Administrative Agent’s Office for the account of the Lenders entitled to such payment in Dollars, in immediately available funds and shall be made without any set off, counterclaim or deduction whatsoever. Any payment received after such time but before 2:00 p.m. on such day shall be deemed a payment on such date for the purposes of Section 10.1, but for all other purposes shall be deemed to have been made on the next succeeding Business Day. Any payment received: (i) after 2:00 p.m., in the case of payments in Dollars; or (ii) after the Applicable Time specified by Administrative Agent in the case of payments in an Alternative Currency, shall in each case be deemed to have been made on the next succeeding Business Day for all purposes. Upon receipt by the Administrative Agent of each such payment, the Administrative Agent shall distribute to each such Lender at its address for notices set forth herein its Commitment Percentage in respect of the relevant Credit Facility (or other applicable share as provided herein) of such payment and shall wire advice of the amount of such credit to each Lender. Each payment to the Administrative Agent on account of the principal of or interest on the Swingline Loans or of any fee, commission or other amounts payable to the Swingline Lender shall be made in like manner, but for the account of the Swingline Lender. Each payment to the Administrative Agent of any Issuing Lender’s fees or L/C Participants’ commissions shall be made in like manner, but for the account of such Issuing Lender or the L/C Participants, as the case may be. Each payment to the Administrative Agent of Administrative Agent’s fees or expenses shall be made for the account of the Administrative Agent and any amount payable to any Lender under Sections 5.9, 5.10, 5.11 or 12.3 shall be paid to the Administrative Agent for the account of the applicable Lender. Subject to the definition of Interest Period, if any payment under this Agreement shall be specified to be made upon a day which is not a Business Day, it shall be made on the next succeeding day which is a Business Day and such extension of time shall in such case be included in computing any interest if payable along with such payment. Notwithstanding the foregoing, if there exists a Defaulting Lender each payment by the Borrower to such Defaulting Lender hereunder shall be applied in accordance with Section 5.15(a)(ii). If, for any reason, the Borrower is prohibited by any law from making any required payment hereunder in an Alternative Currency, the Borrower shall make such payment in Dollars in the Dollar Equivalent of the Alternative Currency payment amount.

 

SECTION 5.5        Evidence of Indebtedness.

 

(a)                 Extensions of Credit. The Extensions of Credit made by each Lender and each Issuing Lender shall be evidenced by one or more accounts or records maintained by such Lender or such Issuing Lender and by the Administrative Agent in the ordinary course of business. The accounts or records maintained by the Administrative Agent and each Lender or the applicable Issuing Lender shall be conclusive absent manifest error of the amount of the Extensions of Credit made by the Lenders or such Issuing Lender to the Borrower and its Subsidiaries 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 or any Issuing 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 such Lender (through the Administrative Agent) a Revolving Credit Note, Term Loan Note and/or Swingline Note, as applicable, which shall evidence such Lender’s Revolving Credit Loans, Term Loans and/or Swingline Loans, as applicable, in addition to such accounts or records. Each Lender may attach schedules to its Notes and endorse thereon the date, amount and maturity of its Loans and payments with respect thereto.

 

(b)                 Participations. 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.

 

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SECTION 5.6        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 its Loans or other obligations hereunder resulting in such Lender’s receiving payment of a proportion of the aggregate amount of its Loans and accrued interest thereon or other such obligations (other than pursuant to Section 5.9, Section 5.10, Section 5.11 or Section 12.3) greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall: (a) notify the Administrative Agent of such fact; and (b) purchase (for cash at face value) participations in the Loans and such other obligations of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing them; provided that:

 

(i)             if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and

 

(ii)             the provisions of this paragraph shall not be construed to apply to: (A) any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender or a Disqualified Institution); (B) the application of Cash Collateral provided for in Section 5.14; or (C) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in Swingline Loans and Letters of Credit to any assignee or participant, other than to the Borrower or any of its Subsidiaries or Affiliates (as to which the provisions of this paragraph shall apply).

 

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 each Credit Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of each Credit Party in the amount of such participation.

 

SECTION 5.7        Administrative Agent’s Clawback.

 

(a)                 Funding by Lenders; Presumption by Administrative Agent. Unless the Administrative Agent shall have received notice from a Lender: (i) in the case of Base Rate Loans, not later than 12:00 noon on the date of any proposed borrowing; and (ii) otherwise, prior to the proposed date of any 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 Sections 2.3(b) and 4.2 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 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: (A) 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; and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. 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.

 

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(b)                 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, the Issuing Lender or the Swingline Lender 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, the Issuing Lender or the Swingline Lender, 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, the Issuing Lender or the Swingline Lender, as the case maybe, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender, Issuing Lender or the Swingline Lender, in Same Day Funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the Overnight Rate.

 

(c)                 Nature of Obligations of Lenders Regarding Extensions of Credit. The obligations of the Lenders under this Agreement to make the Loans and issue or participate in Letters of Credit or pay any other amounts hereunder are several and are not joint or joint and several. The failure of any Lender to make available its Commitment Percentage of any Loan requested by the Borrower or of any other amount hereunder shall not relieve it or any other Lender of its obligation, if any, hereunder to make its Commitment Percentage of such Loan available on the borrowing date or of such other amount hereunder on the applicable payment date, but no Lender shall be responsible for the failure of any other Lender to make its Commitment Percentage of such Loan available on the borrowing date or of such other amount available on the applicable payment date.

 

SECTION 5.8         Changed Circumstances.

 

(a)                 Circumstances Affecting LIBOR Rate Availability. Unless and until a Benchmark Replacement is implemented in accordance with clause (c) below, in connection with any request for a LIBOR Rate Loan or a conversion to or continuation thereof or otherwise, if for any reason (i) the Administrative Agent shall determine (which determination shall be conclusive and binding absent manifest error) that Dollar deposits are not being offered to banks in the London interbank Eurodollar market for the applicable amount and Interest Period of such Loan, (ii) the Administrative Agent shall determine (which determination shall be conclusive and binding absent manifest error) that reasonable and adequate means do not exist for the ascertaining the LIBOR Rate for such Interest Period with respect to a proposed LIBOR Rate Loan or (iii) the Required Lenders shall determine (which determination shall be conclusive and binding absent manifest error) that the LIBOR Rate does not adequately and fairly reflect the cost to such Lenders of making or maintaining such Loans during such Interest Period, then the Administrative Agent shall promptly give notice thereof to the Borrower. Thereafter, until the Administrative Agent notifies the Borrower that such circumstances no longer exist, the obligation of the Lenders to make LIBOR Rate Loans and the right of the Borrower to convert any Loan to or continue any Loan as a LIBOR Rate Loan shall be suspended, and the Borrower shall either (A) repay in full (or cause to be repaid in full) the then outstanding principal amount of each such LIBOR Rate Loan together with accrued interest thereon (subject to Section 5.1(d)), on the last day of the then current Interest Period applicable to such LIBOR Rate Loan; or (B) convert the then outstanding principal amount of each such LIBOR Rate Loan to a Base Rate Loan as of the last day of such Interest Period.

 

(b)                 Laws Affecting LIBOR Rate Availability. If, after the date hereof, the introduction of, or any change in, any Applicable Law or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any of the Lenders (or any of their respective Lending Offices) with any request or directive (whether or not having the force of law) of any such Governmental Authority, central bank or comparable agency, shall make it unlawful or impossible for any of the Lenders (or any of their respective Lending Offices) to honor its obligations hereunder to make or maintain any LIBOR Rate Loan, such Lender shall promptly give notice thereof to the Administrative Agent and the Administrative Agent shall promptly give notice to the Borrower and the other Lenders. Thereafter, until the Administrative Agent notifies the Borrower that such circumstances no longer exist, (i) the obligations of the Lenders to make LIBOR Rate Loans, and the right of the Borrower to convert any Loan to a LIBOR Rate Loan or continue any Loan as a LIBOR Rate Loan shall be suspended and thereafter the Borrower may select only Base Rate Loans and (ii) if any of the Lenders may not lawfully continue to maintain a LIBOR Rate Loan to the end of the then current Interest Period applicable thereto, the applicable Loan shall immediately be converted to a Base Rate Loan for the remainder of such Interest Period.

 

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(c)                 Effect of Benchmark Transition Event.

 

(i)             Benchmark Replacement. Notwithstanding anything to the contrary herein or in any other Loan Document, upon the occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, the Administrative Agent and the Borrower may amend this Agreement to replace LIBOR with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. on the fifth (5th) Business Day after the Administrative Agent has posted such proposed amendment to all Lenders and the Borrower so long as the Administrative Agent has not received, by such time, written notice of objection to such amendment from Lenders comprising the Required Lenders of each Class. Any such amendment with respect to an Early Opt-in Election will become effective on the date that Lenders comprising the Required Lenders of each Class have delivered to the Administrative Agent written notice that such Required Lenders accept such amendment. No replacement of LIBOR with a Benchmark Replacement pursuant to this Section 5.8(c) will occur prior to the applicable Benchmark Transition Start Date.

 

(ii)             Benchmark Replacement Conforming Changes. In connection with the implementation of a Benchmark Replacement, the Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement.

 

(iii)             Notices; Standards for Decisions and Determinations. The Administrative Agent will promptly notify the Borrower and the Lenders of (A) any occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date and Benchmark Transition Start Date, (B) the implementation of any Benchmark Replacement, (C) the effectiveness of any Benchmark Replacement Conforming Changes and (D) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or Lenders pursuant to this Section 5.8(c), including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party hereto, except, in each case, as expressly required pursuant to this Section 5.8(c).

 

(iv)            Benchmark Unavailability Period. Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any request for a LIBOR Rate Loan of, conversion to or continuation of LIBOR Rate Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request into a request for a borrowing of or conversion to Base Rate Loans. During any Benchmark Unavailability Period, the component of the Base Rate based upon LIBOR will not be used in any determination of the Base Rate.

 

SECTION 5.9        Indemnity. The Borrower hereby indemnifies each of the Lenders against any loss or expense (including any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain a LIBOR Rate Loan or from fees payable to terminate the deposits from which such funds were obtained) which may arise or be attributable to each Lender’s obtaining, liquidating or employing deposits or other funds acquired to effect, fund or maintain any Loan: (a) as a consequence of any failure by the Borrower to make any payment when due of any amount due hereunder in connection with a LIBOR Rate Loan; (b) due to any failure of the Borrower to borrow, continue or convert on a date specified therefor in a Notice of Borrowing or Notice of Conversion/Continuation; or (c) due to any payment, prepayment or conversion of any LIBOR Rate Loan on a date other than the last day of the Interest Period therefor. The amount of such loss or expense shall be determined, in the applicable Lender’s sole discretion, based upon the assumption that such Lender funded its Commitment Percentage of the LIBOR Rate Loans in the London interbank market and using any reasonable attribution or averaging methods which such Lender deems appropriate and practical. A certificate of such Lender setting forth the basis for determining such amount or amounts necessary to compensate such Lender shall be forwarded to the Borrower through the Administrative Agent and shall be conclusively presumed to be correct save for manifest error.

 

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SECTION 5.10       Increased Costs.

 

(a)                 Increased Costs Generally. If any Change in Law shall:

 

(i)              impose, modify or deem applicable any reserve (whether for capital adequacy or liquidity or otherwise), special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or advances, loans or other credit extended or participated in by, any Lender (except any reserve requirement reflected in the LIBOR Rate) or any Issuing Lender;

 

(ii)             subject any Recipient to any Taxes (other than: (A) Indemnified Taxes; (B) Taxes described in clauses (b) through (d) of the definition of “Excluded Taxes”; and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or

 

(iii)            impose on any Lender or any Issuing Lender or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or LIBOR 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, the Issuing Lender or such other Recipient of making, converting to, continuing or maintaining any Loan (or of maintaining its obligation to make any such Loan), or to increase the cost to such Lender, such Issuing Lender or such other Recipient 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, such Issuing Lender or such other Recipient hereunder (whether of principal, interest or any other amount) then, upon written request of such Lender, such Issuing Lender or other Recipient, the Borrower shall promptly pay to any such Lender, such Issuing Lender or other Recipient, as the case may be, such additional amount or amounts as will compensate such Lender, such Issuing Lender or other Recipient, as the case may be, for such additional costs incurred or reduction suffered.

 

(b)                 Capital Requirements. If any Lender or any Issuing Lender determines that any Change in Law affecting such Lender or such Issuing Lender or any lending office of such Lender or such Lender’s or such Issuing Lender’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 such Issuing Lender’s capital or on the capital of such Lender’s or such Issuing Lender’s holding company, if any, as a consequence of this Agreement, the Revolving Credit Commitment of such Lender or the Loans made by, or participations in Letters of Credit or Swingline Loans held by, such Lender, or the Letters of Credit issued by such Issuing Lender, to a level below that which such Lender or such Issuing Lender or such Lender’s or such Issuing Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or such Issuing Lender’s policies and the policies of such Lender’s or such Issuing Lender’s holding company with respect to capital adequacy and liquidity), then from time to time upon written request of such Lender or such Issuing Lender the Borrower shall promptly pay to such Lender or such Issuing Lender, as the case may be, such additional amount or amounts as will compensate such Lender or such Issuing Lender or such Lender’s or such Issuing Lender’s holding company for any such reduction suffered.

 

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(c)                 Certificates for Reimbursement. A certificate of a Lender, or an Issuing Lender or such other Recipient setting forth the amount or amounts necessary to compensate such Lender or such Issuing Lender, such other Recipient or any of their respective holding companies, as the case may be, as specified in clause (a) or (b) of this Section and delivered to the Borrower, shall be conclusive absent manifest error. The Borrower shall pay such Lender or such Issuing Lender or such other Recipient, as the case may be, the amount shown as due on any such certificate within ten (10) days after receipt thereof.

 

(d)                 Delay in Requests. Failure or delay on the part of any Lender or any Issuing Lender or such other Recipient to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s or such Issuing Lender’s or such other Recipient’s right to demand such compensation; provided that the Borrower shall not be required to compensate any Lender or an Issuing Lender or any other Recipient pursuant to this Section for any increased costs incurred or reductions suffered more than six (6) months prior to the date that such Lender or such Issuing Lender or such other Recipient, 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 such Issuing Lender’s or such other Recipient’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).

 

SECTION 5.11      Taxes.

 

(a)                 Defined Terms. For purposes of this Section 5.11, the term “Lender” includes any Issuing Lender and the term “Applicable Law” includes FATCA.

 

(b)                 Payments Free of Taxes. Any and all payments by or on account of any obligation of any Credit Party under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by Applicable Law. If any Applicable Law (as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with Applicable Law and, if such Tax is an Indemnified Tax, then the sum payable by the applicable Credit Party shall be increased as necessary so that, after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section), the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.

 

(c)                 Payment of Other Taxes by the Credit Parties. The Credit Parties shall timely pay to the relevant Governmental Authority in accordance with Applicable Law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.

 

(d)                 Indemnification by the Credit Parties. The Credit Parties shall jointly and severally indemnify each Recipient, within ten (10) days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Borrower by a Recipient (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Recipient, shall be conclusive absent manifest error.

 

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(e)                 Indemnification by the Lenders. Each Lender and each Issuing Lender shall severally indemnify the Administrative Agent, within ten (10) days after demand therefor, for: (i) any Indemnified Taxes attributable to such Lender (but only to the extent that any Credit Party has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Credit Parties to do so); (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 12.9(d) relating to the maintenance of a Participant Register; and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan 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 Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this clause (e). Any amounts set off and applied by the Administrative Agent pursuant to the preceding sentence in respect of amounts paid by the Borrower shall be treated as having been paid by the Borrower for purposes of the Loan Documents. The agreements in this paragraph (e) shall survive the resignation and/or replacement of the Administrative Agent.

 

(f)                  Evidence of Payments. As soon as practicable after any payment of Taxes by any Credit Party to a Governmental Authority pursuant to this Section 5.11, such Credit Party shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.

 

(g)                  Status of Lenders.

 

(i)              Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by Applicable Law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 5.11(g)(ii)(B), (ii)(C) and (ii)(E) 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, in the event that the Borrower is a U.S. Person:

 

(A)              The Administrative Agent, and any successor Administrative Agent that is a U.S. Person, shall deliver an executed IRS Form W-9 to the Borrower on or prior to the date the Administrative Agent becomes a party hereto and any successor Administrative Agent that is not a U.S. Person shall, to the extent it is legally entitled to do so, provide to the Borrower any and all forms described in Section 5.11(g)(ii)(C) and Section 5.11(g)(ii)(D) below;

 

(B)               Any Lender that is a U.S. Person shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of IRS Form W-9 certifying that such Lender is exempt from United States federal backup withholding tax;

 

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(C)               any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of the following is applicable:

 

(1)                 in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party: (x) with respect to payments of interest under any Loan Document, executed copies of IRS Form W-8BEN-E establishing an exemption from, or reduction of, United States federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN-E establishing an exemption from, or reduction of, United States federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;

 

(2)                 executed copies of IRS Form W-8ECI;

 

(3)                 in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code: (x) a certificate substantially in the form of Exhibit H-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”); and

(y) executed copies of IRS Form W-8BEN-E; or

 

(4)                 to the extent a Foreign Lender is not the beneficial owner of payments made to it, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 or Exhibit H-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 on behalf of each such direct and indirect partner;

 

(D)              any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of any other form prescribed by Applicable Law as a basis for claiming exemption from or a reduction in United States federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by Applicable Law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and

 

(E)               if a payment made to a Recipient under any Loan Document would be subject to United States federal withholding Tax imposed by FATCA if such Recipient were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Recipient shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by Applicable Law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by Applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Recipient 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 (E), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

 

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Each Recipient agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.

 

(h)                 Treatment of Certain Refunds. If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it is entitled and for which it has been indemnified pursuant to this Section 5.11 (including by the payment of additional amounts pursuant to this Section 5.11), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this clause (h) (plus any interest imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority and the requirement to repay such refund to such Governmental Authority is not due to the indemnified party’s failure to file a timely and accurate form or certification or timely update such form for certification as required pursuant to Section 5.11(g). Notwithstanding anything to the contrary in this clause (h), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this clause (h) if: (i) payment of the additional amounts pursuant to this Section 5.11 are not due to the indemnified party’s failure to file a timely and accurate form or certification or timely update such form or certification as required pursuant to Section 5.11(g); and (ii) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.

 

(i)                  Tax Reporting Cooperation. The Administrative Agent shall, to the extent such information is in its possession, provide the information reasonably requested by the Borrower for the purpose of complying with the requirements of Treasury Regulations Section 1.1273-2(f)(9) to the extent such regulation is applicable to any Loan made pursuant to this Agreement.

 

(j)                  Survival. Each party’s obligations under this Section 5.11 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 Loan Document.

 

SECTION 5.12       Mitigation Obligations; Replacement of Lenders.

 

(a)                 Designation of a Different Lending Office. If any Lender requests compensation under Section 5.10, or requires the Borrower to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 5.11, then such Lender shall, at the request of the Borrower, use reasonable efforts to designate a different lending office for funding or booking its Loans 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 5.10 or Section 5.11, as the case may be, in the future; and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.

 

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(b)                 Replacement of Lenders. If any Lender requests compensation under Section 5.10, or if the Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 5.11, and, in each case, such Lender has declined or is unable to designate a different lending office in accordance with Section 5.12(a), or if any Lender is a Defaulting Lender or a Non-Consenting 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 12.9), all of its interests, rights (other than its existing rights to payments pursuant to Section 5.10 or Section 5.11) and obligations under this Agreement and the related Loan Documents (or in the case of a Non-Consenting Lender, all of such interests, rights and obligations with respect to the Series or Class of Loans or Commitments that is the subject of the related consent, waiver, amendment, modification or termination) to an Eligible 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 (if any) specified in Section 12.9;

 

(ii)              such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and funded participations in Letters of Credit and Swingline Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 5.9) 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 5.10 or payments required to be made pursuant to Section 5.11, such assignment will result in a reduction in such compensation or payments thereafter;

 

(iv)            such assignment does not conflict with Applicable Law; and

 

(v)             in the case of any assignment resulting from a Lender becoming a Non-Consenting Lender, the applicable assignee shall have consented to the applicable amendment, waiver or consent.

 

A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply.

 

SECTION 5.13       Incremental Loans.

 

(a)                 At any time after the Effective Date, the Borrower may by written notice to the Administrative Agent elect to request the establishment of:

 

(i)              one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one or more incremental term loans (any such incremental term loan, an “Incremental Term Loan”); or

 

(ii)             one or more increases in the Revolving Credit Commitments (any such increase, an “Incremental Revolving Credit Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make revolving credit loans under the Revolving Credit Facility (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans”);

 

provided that: (x) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $250,000,000; and (y) the total aggregate amount for each Incremental Loan Commitment shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (x).

 

(b)                 Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent (or such later date as approved by the Administrative Agent). The Borrower may invite any Lender, any Affiliate of any Lender, any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment.

 

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(c)                 Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:

 

(i)                                    either (A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (I) any Incremental Loan Commitment; (II) the making of any Incremental Loans pursuant thereto; and (III) any Permitted Acquisition or other Investment consummated in connection therewith or (B) in the case of an Incremental Term Loan used to finance a Limited Condition Acquisition, if the Lenders providing such Incremental Term Loans have so agreed, then (I) no Default or Event of Default shall exist on the date the applicable Permitted Acquisition Documents are entered into and (II) no Event of Default under Sections 10.1(a), (b), (h) or (i) shall exist on the Increased Amount Date before or after giving effect to (1) such Incremental Term Loan Commitment; (2) the making of any Incremental Term Loans pursuant thereto; and (3) such Permitted Acquisition or other Investment consummated in connection therewith;

 

(ii)                                 the Administrative Agent and the Lenders shall have received from the Borrower an Officer’s Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in Section 9.14 (in the case of the Consolidated Total Net Leverage Ratio, as such level may be adjusted during a Consolidated Total Net Leverage Ratio Holiday, if applicable at such time) both before and after giving effect (on a Pro Forma Basis) to: (A) any Incremental Loan Commitment; (B) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) (provided that the cash proceeds of such Incremental Loans shall not be included in any cash netting); (C) any Permitted Acquisition or other Investment consummated in connection therewith; and (D) any refinancing of Indebtedness or other event giving rise to a pro forma adjustment; provided that in the case of an Incremental Term Loan used to finance a Limited Condition Acquisition, if the Lenders providing such Incremental Term Loans have so agreed, compliance with this clause (ii) shall be tested as of the date the applicable Permitted Acquisition Documents are entered into (and, for the avoidance of doubt, such determination of compliance with respect to this clause (ii) shall give effect to such Limited Condition Acquisition and the incurrence of any Indebtedness in connection therewith);

 

(iii)                             each of the representations and warranties contained in Article VII shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date); provided that in the case of an Incremental Term Loan used to finance a Limited Condition Acquisition, if the Lenders providing such Incremental Term Loans have so agreed, this clause (iii) shall be subject to customary “SunGard” limitations that instead require the accuracy of customary “specified representations” and “specified acquisition agreement representations”;

 

(iv)                              the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);

 

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(v)                                 each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;

 

(vi)                                 in the case of:

 

(A)                each Incremental Term Loan (the terms of which shall be set forth in the relevant Lender Joinder Agreement):

 

(1)                 such Incremental Term Loan shall not (I) have a maturity date earlier than the Revolving Credit Maturity Date (after giving effect to any extension under Section 5.16), or (II) amortize at a rate greater than 15.0% per annum at any time prior to the Revolving Credit Maturity Date (after giving effect to any extension under Section 5.16);

 

(2)                 the Applicable Margin and pricing grid, if applicable, for such Incremental Term Loan shall be determined by the applicable Incremental Lenders and the Borrower on the applicable Increased Amount Date; and

 

(3)                 except as provided above, all other terms and conditions applicable to any Incremental Term Loan, to the extent not consistent with the terms of the then existing Revolving Credit Facility (subject to customary adjustments to reflect the term loan nature of such Incremental Term Loan) and applicable prior to the Revolving Credit Maturity Date, shall be reasonably satisfactory to the Administrative Agent and the Borrower (it being understood that any term or condition applicable to any Incremental Term Loan that is more favorable to the Incremental Lender making such Incremental Term Loan than the corresponding term or condition is to the Lenders making the Revolving Credit Commitments shall be deemed reasonably satisfactory to the Administrative Agent if the Lenders making the Revolving Credit Commitments receive the benefit of such more favorable term or condition applicable to any Incremental Term Loan through the addition of such more favorable term or condition to the Loan Documents for the benefit of the Lenders making the Revolving Credit Commitments);

 

(B)               each Incremental Revolving Credit Increase (the terms of which shall be set forth in the relevant Lender Joinder Agreement):

 

(1)                 such Incremental Revolving Credit Increase shall mature on the Revolving Credit Maturity Date, shall bear interest, and be entitled to fees, in each case at a rate determined by the applicable Incremental Lenders and the Borrower, and shall be subject to the same terms and conditions as the Revolving Credit Loans; provided that if the interest rate margins and/or unused fees, as applicable, in respect of any Incremental Revolving Credit Increase exceed the interest rate margins and/or unused fees, as applicable, for the then existing Revolving Credit Facility (as determined by the Administrative Agent), then the interest rate margins and/or unused fees, as applicable, for the then existing Revolving Credit Facility shall be increased so that the interest rate margins and/or unused fees, as applicable, are equal to the interest rate margins and/or unused fees for such Incremental Revolving Credit Increase; provided further that, in determining the interest rate margins and unused fees applicable to the Incremental Revolving Credit Increase and the then existing Revolving Credit Facility under this clause (1): (x) any upfront fees payable by the Borrower to the Lenders under the then-existing Revolving Credit Facility or any Incremental Revolving Credit Increase, in each case in the initial primary syndication thereof, shall be excluded, and the effects of any and all interest rate floors, shall be included; (y) customary arrangement or commitment fees payable to any Arranger (or its affiliates) or to one or more arrangers (or their affiliates) in connection with the then existing Revolving Credit Commitments or to one or more arrangers (or their affiliates) of any Incremental Revolving Credit Increase shall be excluded; and (z) in the event that, at the time of determination, the Applicable Margin is determined based on a pricing grid, the interest rate margins and unused fees shall be measured for purposes of this clause (1) by reference to each level of the pricing grid;

 

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(2)                 the outstanding Revolving Credit Loans and Revolving Credit Commitment Percentages of Swingline Loans and L/C Obligations will be reallocated by the Administrative Agent on the applicable Increased Amount Date among the Revolving Credit Lenders (including the Incremental Lenders providing such Incremental Revolving Credit Increase) in accordance with their revised Revolving Credit Commitment Percentages (and the Revolving Credit Lenders (including the Incremental Lenders providing such Incremental Revolving Credit Increase) agree to make all payments and adjustments necessary to effect such reallocation and the Borrower shall pay any and all costs required pursuant to Section 5.9 in connection with such reallocation as if such reallocation were a repayment); and

 

(3)                 except as provided above, all of the other terms and conditions applicable to such Incremental Revolving Credit Increase shall, except to the extent otherwise provided in this Section 5.13, be identical to the terms and conditions applicable to the Revolving Credit Facility;

 

(vii)                          (A) each Incremental Term Loan shall receive proceeds of prepayments on the same basis as any other Term Loans, such prepayments to be shared pro rata on the basis of the original aggregate funded amount thereof among all of the Term Loans unless the applicable Incremental Lenders have agreed to receive less than a pro rata share of such prepayments; and

 

(B) any Extensions of Credit made in connection with each Incremental Revolving Credit Increase shall receive proceeds of prepayments on the same basis as the other Revolving Credit Loans made hereunder;

 

(viii)                       such Incremental Loan Commitments shall be effected pursuant to one or more Lender Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and the applicable Incremental Lenders (which Lender Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 5.13); and

 

(ix)                              the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents (including, without limitation, supplements or modifications to the Security Documents (including Mortgage modifications and title endorsements) and a resolution duly adopted by the board of directors (or equivalent governing body) of each Credit Party authorizing such Incremental Loan and/or Incremental Loan Commitment) reasonably requested by Administrative Agent in connection with any such transaction.

 

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(d)                 The Incremental Term Loans shall be deemed to be Term Loans; provided that such Incremental Term Loan may be designated as a separate Series of Term Loans for all purposes of this Agreement as set forth in the applicable Lender Joinder Agreement. The Incremental Revolving Credit Commitments shall be deemed to be Revolving Credit Commitments and shall become part of the Revolving Credit Facility.

 

(e)                 From and after the effectiveness of any Incremental Loan Commitments on an Increased Amount Date, the Incremental Lenders holding such Incremental Loan Commitments shall be included in any determination of the Required Lenders or Required Revolving Credit Lenders, as applicable, and, unless otherwise agreed, the Incremental Lenders will not constitute a separate voting class for any purposes under this Agreement.

 

(f)                  On any Increased Amount Date on which any Incremental Term Loan Commitment becomes effective, subject to the foregoing terms and conditions, each Incremental Lender with an Incremental Term Loan Commitment shall make, or be obligated to make, an Incremental Term Loan to the Borrower in an amount equal to its Incremental Term Loan Commitment and shall become a Term Loan Lender hereunder with respect to such Incremental Term Loan Commitment and the Incremental Term Loan made pursuant thereto.

 

(g)                 On any Increased Amount Date on which any Incremental Revolving Credit Increase becomes effective, subject to the foregoing terms and conditions, from and after the effectiveness of such Incremental Revolving Credit Increase, each Incremental Lender with an Incremental Revolving Credit Commitment shall become a Revolving Credit Lender hereunder with respect to such Incremental Revolving Credit Commitment.

 

SECTION 5.14       Cash Collateral. At any time that there shall exist a Defaulting Lender, within one (1) Business Day following the written request of the Administrative Agent, any Issuing Lender (with a copy to the Administrative Agent) or the Swingline Lender (with a copy to the Administrative Agent), the Borrower shall Cash Collateralize the Fronting Exposure of such Issuing Lender and/or the Swingline Lender, as applicable, with respect to such Defaulting Lender (determined after giving effect to Section 5.15(a)(iv) and any Cash Collateral provided by such Defaulting Lender) in an amount not less than the Minimum Collateral Amount. Additionally, if the Administrative Agent notifies the Borrower at any time that the L/C Obligations at such time exceeds 102% 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 L/C Obligations in an amount not less than the amount by which the L/C Obligations exceeds the L/C Sublimit.

 

(a)                 Grant of Security Interest. The Borrower, and to the extent provided by any Defaulting Lender, such Defaulting Lender, hereby grants to the Administrative Agent, for the benefit of each Issuing Lender and the Swingline Lender, and agrees to maintain, a first priority security interest in all such Cash Collateral as security for the Defaulting Lender’s obligation to fund participations in respect of L/C Obligations and Swingline Loans, to be applied pursuant to Section 5.15(b). 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, each Issuing Lender and the Swingline Lender as herein provided, or that the total amount of such Cash Collateral is less than the Minimum Collateral Amount, the Borrower will, promptly upon demand by the Administrative Agent, pay or provide to the Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency (after giving effect to any Cash Collateral provided by the Defaulting Lender).

 

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(b)                 Application. Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under this Section 5.14 or Section 5.15 in respect of Letters of Credit and Swingline Loans shall be applied to the satisfaction of the Defaulting Lender’s obligation to fund participations in respect of L/C Obligations and Swingline Loans (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) for which the Cash Collateral was so provided, prior to any other application of such property as may otherwise be provided for herein.

 

(c)                 Termination of Requirement. Cash Collateral (or the appropriate portion thereof) provided to reduce the Fronting Exposure of any Issuing Lender and/or the Swingline Lender, as applicable, shall no longer be required to be held as Cash Collateral pursuant to this Section 5.14 following (i) the elimination of the applicable Fronting Exposure (including by the termination of Defaulting Lender status of the applicable Lender), or (ii) the determination by the Administrative Agent, the Issuing Lenders and the Swingline Lender that there exists excess Cash Collateral; provided that, subject to Section 5.15, the Person providing Cash Collateral, the Issuing Lenders and the Swingline Lender may agree that Cash Collateral shall be held to support future anticipated Fronting Exposure or other obligations; and provided further that to the extent that such Cash Collateral was provided by the Borrower, such Cash Collateral shall remain subject to the security interest granted pursuant to the Loan Documents.

 

SECTION 5.15     Defaulting Lenders.

 

(a)                 Defaulting Lender Adjustments. Notwithstanding anything to the contrary contained in this 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)                                    Waivers and Amendments. Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definition of Required Lenders and Section 12.2.

 

(ii)                                 Defaulting Lender Waterfall. Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article X or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 12.4 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to the Issuing Lenders or the Swingline Lender hereunder; third, to Cash Collateralize the Fronting Exposure of the Issuing Lenders and the Swingline Lender with respect to such Defaulting Lender in accordance with Section 5.14; fourth, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan or funded participation in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to (A) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans and funded participations under this Agreement and (B) Cash Collateralize the Issuing Lenders’ future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit and Swingline Loans issued under this Agreement, in accordance with Section 5.14; sixth, to the payment of any amounts owing to the Lenders, the Issuing Lenders or the Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, any Issuing Lender or the Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender's breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (1) such payment is a payment of the principal amount of any Loans or funded participations in Letters of Credit or Swingline Loans in respect of which such Defaulting Lender has not fully funded its appropriate share, and (2) such Loans were made or the related Letters of Credit or Swingline Loans were issued at a time when the conditions set forth in Section 6.2 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and funded participations in Letters of Credit or Swingline Loans owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or funded participations in Letters of Credit or Swingline Loans owed to, such 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 pro rata in accordance with the Revolving Credit Commitments under the applicable Revolving Credit Facility without giving effect to Section 5.15(a)(iv). Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 5.15(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.

 

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(iii)                                 Certain Fees.

 

(A)              No Defaulting Lender shall be entitled to receive any Commitment Fee for any period during which that Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender).

 

(B)               Each Defaulting Lender shall be entitled to receive letter of credit commissions pursuant to Section 3.3 for any period during which that Lender is a Defaulting Lender only to the extent allocable to its Revolving Credit Commitment Percentage of the stated amount of Letters of Credit for which it has provided Cash Collateral pursuant to Section 5.14.

 

(C)               With respect to any Commitment Fee or letter of credit commission not required to be paid to any Defaulting Lender pursuant to clause (A) or (B) above, the Borrower shall: (1) pay to each Non-Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s participation in L/C Obligations or Swingline Loans that has been reallocated to such Non-Defaulting Lender pursuant to clause (iv) below; (2) pay to each applicable Issuing Lender and Swingline Lender, as applicable, the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to such Issuing Lender’s or Swingline Lender’s Fronting Exposure to such Defaulting Lender; and (3) not be required to pay the remaining amount of any such fee.

 

(iv)                              Reallocation of Participations to Reduce Fronting Exposure. All or any part of such Defaulting Lender’s participation in L/C Obligations and Swingline Loans shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Revolving Credit Commitment Percentages (calculated without regard to such Defaulting Lender’s Revolving Credit Commitment) but only to the extent that such reallocation does not cause the aggregate Revolving Credit Exposure of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s Revolving Credit Commitment. NoSubject to Section 12.24, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation.

 

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(v)                                 Cash Collateral, Repayment of Swingline Loans. If the reallocation described in clause (iv) above cannot, or can only partially, be effected, the Borrower shall, without prejudice to any right or remedy available to it hereunder or under law: (x) first, repay Swingline Loans in an amount equal to the Swingline Lenders’ Fronting Exposure; and (y) second, Cash Collateralize the Issuing Lenders’ Fronting Exposure in accordance with the procedures set forth in Section 5.14.

 

(b)                 Defaulting Lender Cure. If the Borrower, the Administrative Agent, the Issuing Lenders and the Swingline Lender agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), such Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit and Swingline Loans to be held pro rata by the Lenders in accordance with the Commitments under the applicable Credit Facility (without giving effect to Section 5.15(a)(iv)), whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the 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 5.16     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 date of any Series of Loans and Commitments to the extended maturity date specified in such notice. Such notice shall: (i) set forth the amount of the applicable Series of Revolving Credit Commitments and/or Term Loans that will be subject to the Extension (which shall be in minimum increments of $10,000,000 and a minimum amount of $50,000,000); (ii) set forth the date on which such Extension is requested to become effective (which shall be not less than ten (10) Business Days nor more than sixty (60) days after the date of such Extension notice (or such longer or shorter periods as the Administrative Agent shall agree in its sole discretion)); (iii) identify the relevant Series of Revolving Credit Commitments and/or Term Loans to which such Extension relates; and (iv) specify any other amendments or modifications to this Agreement to be effected in connection with such Extension, which amendments or modifications shall apply only to the applicable Extended Revolving Credit Commitments or Extended Term Loans and shall comply with Section 5.16(c). Each Lender of the applicable Series 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 Series pursuant to procedures established by, or reasonably acceptable to, the Administrative Agent and the Borrower. If the aggregate principal amount of Revolving Credit Commitments or Term Loans in respect of which Lenders shall have accepted the relevant Extension Offer shall exceed the maximum aggregate principal amount of Revolving Credit Commitments or Term Loans, as applicable, subject to the Extension Offer as set forth in the Extension notice, then the Revolving Credit Commitments or Term Loans, as applicable, of Lenders of the applicable Series shall be extended ratably up to such maximum amount based on the respective principal amounts with respect to which such Lenders have accepted such Extension Offer. Each group of Term Loans or Revolving Credit Commitments, as applicable, in each case as so extended pursuant to this Section 5.16, as well as the Term Loans and the Revolving Credit Commitments made on the Effective Date (in each case not so extended), shall be deemed a separate Series; any Extended Term Loans shall constitute a separate Series of Term Loans from the Series of Term Loans from which they were converted; and any Extended Revolving Credit Commitments shall constitute a separate Series of Revolving Credit Commitments from the Series of Revolving Credit Commitments from which they were converted.

 

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(b)                 The following shall be conditions precedent to the effectiveness of any Extension: (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 VII and in each other Loan Document shall be deemed to be made and shall be true and correct in all material respects (except to the extent any such representation or warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation or warranty shall be true and correct in all respects) on and as of the effective date of such Extension; (iii) the Issuing Lender 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 or extension of Letters of Credit or making of Swingline Loans at any time during the extended period; and (iv) the terms of such Extended Revolving Credit Commitments and Extended Term Loans shall comply with paragraph (c) of this Section.

 

(c)                 The terms of each Extension shall be determined by the Borrower and the applicable extending Lenders and set forth in an Extension Amendment; provided that (i) the final maturity date of any Series of Extended Revolving Credit Commitments or Series of Extended Term Loans shall be no earlier than the Revolving Credit Maturity Date or the Term Loan Maturity Date for the applicable Series, respectively; (ii)(A) there shall be no scheduled amortization of the loans or reductions of commitments under any Extended Revolving Credit Commitments and (B) the average life to maturity of any Series of Extended Term Loans shall be no shorter than the remaining average life to maturity of each existing Series of Term Loans; (iii) the Extended Revolving Credit Loans and the Extended Term Loans will rank pari passu in right of payment and with respect to security with the existing Revolving Credit Loans and the existing Term Loans and the borrower and guarantors of the Extended Revolving Credit Commitments or Extended Term Loans, as applicable, shall be the same as the Borrower and Subsidiary Guarantors with respect to the existing Revolving Credit Loans or Term Loans, as applicable; (iv) the interest rate margin, rate floors, fees, original issue discount and premium applicable to any Series of Extended Revolving Credit Commitment (and the Extended Revolving Credit Loans thereunder) and any Series of Extended Term Loans shall be determined by the Borrower and the applicable extending Lenders; (v)(A) any Series of Extended Term Loans may participate on a pro rata or less than pro rata (but not greater than pro rata) basis in voluntary or mandatory prepayments with the other Series of Term Loans and (B) borrowing and prepayment of Extended Revolving Credit Loans, or reductions of Extended Revolving Credit Commitments, and participation in Letters of Credit and Swingline Loans, shall be on a pro rata basis with the other Revolving Credit Loans or Revolving Credit Commitments (except that the Borrower shall be permitted to permanently repay and terminate commitments of any such Series on a better than a pro rata basis as compared to any other Series with a later maturity date than such Series); and (vi) the terms of the Extended Revolving Credit Commitments or Extended Term Loans, as applicable, shall be substantially identical to the terms set forth herein (except as set forth in clauses (i) through (v) above and for terms applicable only after the Revolving Credit Maturity Date (in the case of Extended Revolving Credit Commitments) or the Latest Maturity Date (in the case of Extended Term Loans)).

 

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(d)                 In connection with any Extension, the Borrower, the Administrative Agent and each applicable extending Lender shall execute and deliver or cause to be delivered to the Administrative Agent an Extension Amendment and such other documentation (including, without limitation, supplements or amendments to the Security Documents, customary legal opinions, officer's certificates and resolutions duly adopted by the board of directors (or equivalent governing body) of each Credit Party authorizing such Extension) 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 Loan 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 Revolving Credit Commitments or Extended Term Loans as a new Series of Revolving Credit Commitments or Term Loans, as applicable, and such other 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 Series (including to preserve the pro rata treatment of the extended and non-extended Series and to provide for the reallocation of Revolving Credit Exposure upon the expiration or termination of the commitments under any Class or tranche), in each case on terms consistent with this section.

 

ARTICLE VI

 

CONDITIONS OF CLOSING AND BORROWING

 

SECTION 6.1       Conditions to Closing and Initial Extensions of Credit. The obligation of the Lenders (and the Issuing Lenders) to close this Agreement and to make the initial Loans or issue or participate in the initial Letters of Credit, if any, is subject to the satisfaction of each of the following conditions:

 

(a)                 Executed Loan Documents. This Agreement, a Revolving Credit Note in favor of each Revolving Credit Lender requesting a Revolving Credit Note, a Swingline Note in favor of the Swingline Lender (in each case, if requested thereby), the Reaffirmation Agreement, together with any other applicable Loan Documents, shall have been duly authorized, executed and delivered to the Administrative Agent by the parties thereto (which, in the case of this Agreement shall include all “Lenders” (as defined in the Existing Credit Agreement) (other than any such “Lenders” that are being paid off in full on the Effective Date, including the “Term Loan Lenders” (as defined in the Existing Credit Agreement))) and shall be in full force and effect.

 

(b)                 Closing Certificates; Etc. The Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:

 

(i)                                    Officer’s Certificate. A certificate from a Responsible Officer of the Borrower certifying to the effect that:

 

(A)              each of the Credit Parties, as applicable, has satisfied each of the conditions set forth in Section 6.1 and Sections 6.2(a) and 6.2(b) hereof; and

 

(B)               since December 31, 2018, there shall not have occurred any event or condition that has had or could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect.

 

(ii)                                 Certificate of Secretary of each Credit Party. A certificate of a Responsible Officer, secretary or assistant secretary of each Credit Party certifying as to the incumbency and genuineness of the signature of each officer of such Credit Party executing Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of: (A)   the articles or certificate of incorporation or formation (or equivalent), as applicable, of such Credit Party and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of incorporation, organization or formation (or equivalent), as applicable; (B) the bylaws or other governing document of such Credit Party as in effect on the Effective Date; (C) resolutions duly adopted by the board of directors (or other governing body) of such Credit Party authorizing and approving the transactions contemplated hereunder and the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party; and (D) each certificate required to be delivered pursuant to Section 6.1(b)(iii).

 

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(iii)                             Certificates of Good Standing. Certificates as of a recent date of the good standing of each Credit Party under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable, and, to the extent available, a certificate of the relevant taxing authorities of such jurisdictions certifying that such Credit Party has filed required tax returns and owes no delinquent taxes.

 

(iv)                              Opinions of Counsel. Customary and reasonably satisfactory opinions of counsel to the Credit Parties (including opinions of local counsel to the Credit Parties as may be reasonably requested by the Administrative Agent) addressed to the Administrative Agent and the Lenders with respect to the Credit Parties, the Loan Documents, and such other matters as the Administrative Agent shall reasonably request (which such opinions shall expressly permit reliance by permitted successors and assigns of the Administrative Agent and the Lenders).

 

(c)                 Personal Property Collateral.

 

(i)                                    Filings and Recordings. The Administrative Agent shall have received all filings and recordations that are necessary to perfect the security interests of the Administrative Agent, on behalf of the Secured Parties, in the Collateral and the Administrative Agent shall have received evidence reasonably satisfactory to the Administrative Agent that upon such filings and recordations such security interests continue to constitute valid and perfected first priority Liens thereon (subject to Permitted Liens).

 

(ii)                                 Pledged Collateral. The Administrative Agent shall have received: (A) original stock certificates or other certificates evidencing the certificated Equity Interests pledged pursuant to the Security Documents, together with an undated stock power for each such certificate duly executed in blank by the registered owner thereof; and (B) each original promissory note pledged pursuant to the Security Documents together with an undated allonge for each such promissory note duly executed in blank by the holder thereof.

 

(iii)                             Lien Search. The Administrative Agent shall have received the results of a Lien search (including a search as to judgments, pending litigation, bankruptcy, tax and intellectual property matters), made against the Credit Parties under the Uniform Commercial Code (or applicable judicial docket) as in effect in each jurisdiction in which filings or recordations under the Uniform Commercial Code should be made to evidence or perfect security interests in all assets of such Credit Party, indicating among other things that the assets of each such Credit Party are free and clear of any Lien (except for Permitted Liens and Liens to be released on the Effective Date).

 

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(iv)                              Property and Liability Insurance. The Administrative Agent shall have received, in each case in form and substance reasonably satisfactory to the Administrative Agent, evidence of property, business interruption and liability insurance covering each Credit Party (with appropriate endorsements naming the Administrative Agent as lender’s loss payee (and mortgagee, as applicable) on all policies for property hazard insurance and as additional insured on all policies for liability insurance), and if requested by the Administrative Agent, copies of such insurance policies.

 

(v)                                 Perfection Certificate. The Administrative Agent shall have received a Perfection Certificate with respect to the Credit Parties dated the Effective Date and duly executed by a Responsible Officer of each Credit Party.

 

(vi)                              Other Collateral Documentation. The Administrative Agent shall have received any documents required by the terms of the Security Documents to evidence its security interest in the Collateral (including, without limitation, filings evidencing a security interest in any intellectual property included in the Collateral).

 

(d)                 Governmental and Third-Party Approvals. All material Governmental Approvals and material third party approvals and/or consents and all equityholder and board of directors (or comparable entity management body) authorizations shall have been obtained and shall be in full force and effect.

 

(e)                 Financial Matters.

 

(i)                                    Financial Statements. The Administrative Agent shall have received: (A) the audited Consolidated balance sheet of the Borrower and its Subsidiaries and the related audited Consolidated statements of income, stockholder’s equity, and cash flows, for the three (3) most recently completed Fiscal Years ending at least ninety (90) days prior to the Effective Date; and (B)  the unaudited Consolidated balance sheet of the Borrower and its Subsidiaries and related unaudited Consolidated statements of income and cash flows for each interim fiscal quarter ended since the date of the last audited Consolidated balance sheets and related statements of income, stockholder’s equity, and cash flows, but prior to the date that is forty-five (45) days prior to the Effective Date.

 

(ii)                                 Financial Projections. The Administrative Agent shall have received projections prepared by management of the Borrower of balance sheets, income statements and cash flow statements of the Borrower and its Subsidiaries on a Consolidated basis prepared on a quarterly basis for the first year following the Effective Date and on an annual basis for each year thereafter during the term of the Credit Facility.

 

(iii)                             Solvency Certificate. The Borrower shall have delivered to the Administrative Agent a certificate, in substantially the form attached hereto as Exhibit I and certified as accurate by the chief financial officer of the Borrower (or by another officer with equivalent duties), stating that, after giving pro forma effect to the Transactions, the Borrower and its Subsidiaries (on a consolidated basis) are Solvent.

 

(iv)                              Payment at Closing. The Borrower shall have paid or made arrangements to pay contemporaneously with closing: (A) to the Administrative Agent, the Arrangers and the Lenders, the fees set forth or referenced in Section 5.3 and any other accrued and unpaid fees or commissions due hereunder; and (B) all reasonable and documented fees and expenses of counsel to the Administrative Agent and the Arrangers (directly to such counsel if requested by the Administrative Agent or any of the Arrangers) to the extent the Borrower has received an invoice for such fees and expenses at least one (1) Business Day prior to the Effective Date.

 

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(f)                 Miscellaneous.

 

(i)                                    Notice of Account Designation. The Administrative Agent shall have received a Notice of Account Designation specifying the account or accounts to which the proceeds of any Loans made on the Effective Date are to be disbursed.

 

(ii)                                 Existing Indebtedness/Refinancing. The Refinancing shall have been consummated prior to, or substantially simultaneously with, the initial Extensions of Credit on the Effective Date. All other existing Indebtedness of the Borrower and its Subsidiaries (excluding Indebtedness permitted pursuant to Section 9.1) shall be repaid in full, all commitments (if any) in respect thereof shall have been terminated and all guarantees therefor and security therefor shall be released, and the Administrative Agent shall have received pay-off letters in form and substance satisfactory to it evidencing such repayment, termination and release.

 

(iii)                             PATRIOT Act, etc. The Borrower and each of the Subsidiary Guarantors shall have provided to the Administrative Agent and the Lenders, at least three (3) Business Days prior to the Effective Date, all documentation and other information that has been reasonably requested by the Administrative Agent or any of the Arrangers in writing at least seven (7) Business Days prior to the Effective Date, in order to comply with requirements of the PATRIOT Act and applicable “know your customer” and anti-money laundering rules and regulations (including any certification required under the requirements of 31 C.F.R. §1010.230 (the “Beneficial Ownership Regulation”).

 

(iv)                              Absence of Litigation, etc. There shall not exist any action, suit, investigation, judgment, order, injunction or other proceeding pending or, to the knowledge of the Borrower, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.

 

Without limiting the generality of the provisions of Section 11.4, for purposes of determining compliance with the conditions specified in this Section 6.1, the Administrative Agent and each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Effective Date specifying its objection thereto.

 

SECTION 6.2       Conditions to All Extensions of Credit. The obligations of the Lenders to make or participate in any Extensions of Credit (including the initial Extension of Credit), convert or continue any Loan, and/or any Issuing Lender to issue or extend any Letter of Credit are subject to the satisfaction of the following conditions precedent on the relevant borrowing, continuation, conversion, issuance or extension date:

 

(a)                 Continuation of Representations and Warranties. In the case of each Extension of Credit hereunder, except as set forth in Section 5.13(c)(iii), the representations and warranties contained in this Agreement and the other Loan Documents shall be true and correct in all material respects, except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects, on and as of such borrowing, continuation, conversion, issuance, increase or extension date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct in all material respects as of such earlier date, except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects as of such earlier date).

 

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(b)                 No Existing Default. With respect to any Extension of Credit, except as set forth in Section 5.13(c)(i), no Default or Event of Default shall have occurred and be continuing: (i) on the borrowing, continuation, or conversion date with respect to such Loan or after giving effect to the Loans to be made, continued or converted on such date; or (ii) on the issuance or extension date with respect to such Letter of Credit or after giving effect to the issuance or extension of such Letter of Credit on such date.

 

(c)                 Notices. The Administrative Agent shall have received a Notice of Borrowing, Letter of Credit Application, or Notice of Conversion/Continuation, as applicable, from the Borrower in accordance with Section 2.3(a), Section 3.2 or Section 5.2, as applicable.

 

(d)                 New Swingline Loans/Letters of Credit. So long as any Lender is a Defaulting Lender: (i) the Swingline Lender shall not be required to fund any Swingline Loans unless it is satisfied that it will have no Fronting Exposure after giving effect to such Swingline Loan; and (ii) the Issuing Lender shall not be required to issue, extend, renew or increase any Letter of Credit unless it is satisfied that it will have no Fronting Exposure after giving effect thereto.

 

(e)                 Letters of Credit in Alternative Currencies. In the case of an Extension of Credit consisting of a Letter of Credit to be denominated in an Alternative Currency, there shall not have occurred any change in national or international financial, political or economic conditions or currency exchange rates or exchange controls which in the reasonable opinion of Administrative Agent and the Issuing Lender would make it impracticable for such Letter of Credit to be denominated in the relevant Alternative Currency.

 

ARTICLE VII

 

REPRESENTATIONS AND WARRANTIES OF THE CREDIT PARTIES

 

To induce the Administrative Agent and Lenders to enter into this Agreement and to induce the Lenders to make Extensions of Credit, the Credit Parties hereby represent and warrant to the Administrative Agent and the Lenders both before and after giving effect to the transactions contemplated hereunder, which representations and warranties shall be deemed made on the Effective Date and as otherwise set forth in Section 6.2, that:

 

SECTION 7.1     Organization; Power; Qualification. Each Credit Party and each Subsidiary thereof: (a) is duly organized, validly existing and in good standing (to the extent the concept is applicable in such jurisdiction) under the laws of the jurisdiction of its incorporation or formation; (b) has the power and authority to own its Properties and to carry on its business as now being and hereafter proposed to be conducted; and (c) is duly qualified and authorized to do business in each jurisdiction in which the character of its Properties or the nature of its business requires such qualification and authorization except in jurisdictions where the failure to be so qualified or in good standing could not reasonably be expected to result in a Material Adverse Effect. The jurisdictions in which each Credit Party and each Subsidiary thereof are organized and qualified to do business as of the Effective Date are described on Schedule 7.1 of the Disclosure Letter.

 

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SECTION 7.2       Ownership. Each Subsidiary of each Credit Party as of the Effective Date is listed on Schedule 7.2 of the Disclosure Letter, including its designation as an Excluded Subsidiary, if applicable. As of the Effective Date, the capitalization of each Credit Party and its Subsidiaries consists of the number of shares, authorized, issued and outstanding, of such classes and series, with or without par value, described on Schedule 7.2 of the Disclosure Letter. All outstanding shares have been duly authorized and validly issued and are fully paid and nonassessable and not subject to any preemptive or similar rights, except as described in Schedule 7.2 of the Disclosure Letter. The shareholders or other owners, as applicable, of each Credit Party (other than the Borrower) and its Subsidiaries and the number of shares owned by each as of the Effective Date are described on Schedule 7.2 of the Disclosure Letter. As of the Effective Date, there are no outstanding stock purchase warrants, subscriptions, options, securities, instruments or other rights of any type or nature whatsoever, which are convertible into, exchangeable for or otherwise provide for or require the issuance of Equity Interests of any Credit Party (other than the Borrower) or any Subsidiary thereof, except as described on Schedule 7.2 of the Disclosure Letter.

 

SECTION 7.3      Authorization; Enforceability. Each Credit Party and each Subsidiary thereof has the right, power and authority and has taken all necessary corporate and other action to authorize the execution, delivery and performance of this Agreement and each of the other Loan Documents to which it is a party in accordance with their respective terms. This Agreement and each of the other Loan Documents have been duly executed and delivered by the duly authorized officers of each Credit Party and each Subsidiary thereof that is a party thereto, and each such document constitutes the legal, valid and binding obligation of each Credit Party and each Subsidiary thereof that is a party thereto, enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal Debtor Relief Laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies.

 

SECTION 7.4      Compliance of Agreement, Loan Documents and Borrowing with Laws, Etc. The execution, delivery and performance by each Credit Party and each Subsidiary thereof of the Loan Documents to which each such Person is a party in accordance with their respective terms, the Extensions of Credit hereunder, and the transactions contemplated hereby or thereby, do not and will not, by the passage of time, the giving of notice or otherwise: (a) require any Governmental Approval or violate any Applicable Law relating to any Credit Party or any Subsidiary thereof where the failure to obtain such Governmental Approval or such violation could reasonably be expected to have a Material Adverse Effect; (b) conflict with, result in a breach of or constitute a default under the articles of incorporation, bylaws or other organizational documents of any Credit Party or any Subsidiary thereof; (c) conflict with, result in a breach of or constitute a default under any indenture, agreement or other instrument to which such Person is a party or by which any of its properties may be bound or any Governmental Approval relating to such Person, which could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; (d) result in or require the creation or imposition of any Lien upon or with respect to any property now owned or hereafter acquired by such Person other than Permitted Liens; or (e)  require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of this Agreement other than: (i) consents, authorizations, filings or other acts or consents for which the failure to obtain or make could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; (ii) consents or filings under the UCC; (iii) filings with the United States Copyright Office and/or the United States Patent and Trademark Office; and (iv) Mortgage filings with the applicable county recording office or register of deeds.

 

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SECTION 7.5       Compliance with Law; Governmental Approvals. Each Credit Party and each Subsidiary thereof: (a) has all Governmental Approvals required by any Applicable Law for it to conduct its business as currently being conducted, each of which is in full force and effect, is final and not subject to review on appeal and is not the subject of any pending or, to its knowledge, threatened attack by direct or collateral proceeding; (b) is in compliance with each Governmental Approval applicable to it and in compliance with all other Applicable Laws relating to it or any of its respective properties; and (c) has timely filed all material reports, documents and other materials required to be filed by it under all Applicable Laws with any Governmental Authority and has retained all material records and documents required to be retained by it under Applicable Law except in each case of clause (a), (b) or (c) where the failure to have, comply or file could not reasonably be expected to have a Material Adverse Effect.

 

SECTION 7.6       Tax Returns and Payments. Each Credit Party and each Subsidiary thereof has duly filed or caused to be filed all income and other federal, state, local and other Tax returns required by Applicable Law to be filed, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect, and has paid, or made adequate provision for the payment of, all income and other federal, state, local and other taxes, assessments and governmental charges or levies upon it and its property, income, profits and assets which are due and payable (other than any amount the validity of which is currently being contested in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided for on the books of the relevant Credit Party and except to the extent that failure do so could not reasonably be expected to have a Material Adverse Effect). Such returns accurately reflect in all material respects all liability for taxes of any Credit Party or any Subsidiary thereof for the periods covered thereby. As of the Effective Date, except as set forth on Schedule 7.6 of the Disclosure Letter, there is no ongoing audit or examination or, to its knowledge, other investigation by any Governmental Authority of the tax liability of any Credit Party or any Subsidiary thereof. No Governmental Authority has asserted any Lien or other claim against any Credit Party or any Subsidiary thereof with respect to unpaid taxes which has not been discharged or resolved (other than (a) any amount the validity of which is currently being contested in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided for on the books of the relevant Credit Party and (b) Permitted Liens). The charges, accruals and reserves on the books of each Credit Party and each Subsidiary thereof in respect of federal, state, local and other taxes for all Fiscal Years and portions thereof since the organization of any Credit Party or any Subsidiary thereof are in the judgment of the Borrower adequate, and the Borrower does not anticipate any additional material taxes or assessments for any of such years.

 

SECTION 7.7       Intellectual Property Matters. Each Credit Party and each Subsidiary thereof owns, licenses, or otherwise possesses rights to use all material franchises, licenses, copyrights, copyright applications, patents, patent rights or licenses, patent applications, trademarks, trademark rights, service mark, service mark rights, trade names, trade name rights and other rights with respect to the foregoing which are reasonably necessary to conduct its business as currently conducted. No event has occurred which permits, or after notice or lapse of time or both would permit, the revocation or termination of any such material rights, and no Credit Party nor any Subsidiary thereof is liable to any Person for infringement under Applicable Law with respect to any such rights as a result of its business operations, except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

 

SECTION 7.8       Health Care Regulatory Matters.

 

(a)                 The products of each Credit Party and each of its Subsidiaries that are subject to the regulations of the FDA (or similar Applicable Laws of other Governmental Authorities in any domestic or foreign jurisdiction) are in compliance with all applicable requirements of the FDA (and of all corresponding state, local and foreign Applicable Laws of other Governmental Authorities), except where the failure to comply, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. No Credit Party nor any of its Subsidiaries has received any written notice from the FDA (or from any other applicable Governmental Authority) alleging any material violation by a Credit Party or any of its Subsidiaries of any Applicable Law with respect to any product of any Credit Party or any of its Subsidiaries.

 

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(b)                 To the extent applicable to any Credit Party or any of its Subsidiaries and for so long as: (i) any Credit Party or any of its Subsidiaries is a “covered entity” as defined in 45 C.F.R. § 160.103; (ii) any Credit Party or any of its Subsidiaries is a “business associate” as defined in 45 C.F.R. § 160.103; (iii) any Credit Party is subject to or covered by the HIPAA Administrative Requirements codified at 45 C.F.R. Parts 160 & 162 and/or the HIPAA Security and Privacy Requirements codified at 45 C.F.R. Parts 160 & 164; and/or (iv) any Credit Party or any of its Subsidiaries sponsors any “group health plans” as defined in 45 C.F.R. § 160.103, such Credit Party or such Subsidiary is in compliance with the applicable privacy, security, transaction standards, breach notification, and other provisions and requirements of HIPAA and any comparable state laws, except where the failure to so comply, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. Except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) no breach or potential breach has occurred with respect to any unsecured protected health information, as such term is defined in 45 C.F.R. § 160.103, maintained by or for Credit Party or any of its Subsidiaries, and (ii) no information security or privacy breach event has occurred that would require notification under any comparable state laws.

 

SECTION 7.9        Environmental Matters. Except as disclosed on Schedule 7.9 of the Disclosure Letter or as, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect, none of the properties owned, leased or operated by the Borrower or any Subsidiary, now contain, or to the knowledge of the Borrower have previously contained, stored, treated, used, or disposed or arranged for the disposal of (at any location), any Hazardous Materials in amounts or concentrations which could reasonably be expected to result in any liability under, or violation of, any applicable Environmental Laws. Except as disclosed on Schedule 7.9 of the Disclosure Letter or as , individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect, neither Borrower nor any of its Subsidiaries has assumed, by contract or operation of law, any material liability of any third party arising under any applicable Environmental Laws. The Borrower and each Subsidiary and such properties and all operations conducted in connection therewith are in compliance, and have been in compliance, in all material respects with all applicable Environmental Laws, including, without limitation, any permits issued or required thereunder. Borrower and its Subsidiaries currently hold, and at all relevant times have held, all material permits required under applicable Environmental Laws, and all such material permits are valid and in full force and effect, and not subject to any pending or, to the knowledge of Borrower, threatened proceeds that could reasonably be expected lead to any suspension, modification, termination or revocation of any such permits. There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of the Borrower, threatened in writing (nor has Borrower or any of its Subsidiaries received any written notice thereof), at law, in equity, in arbitration or before any Governmental Authority, by or against the Borrower or any of its Subsidiaries or against, or otherwise arising out of, any of their respective properties, business or revenues that allege any material liability under, or violation of, any applicable Environmental Laws.

 

SECTION 7.10       Employee Benefit Matters.

 

(a)                 As of the Effective Date, no Credit Party nor any ERISA Affiliate maintains or contributes to, or has any obligation under, any Pension Plan or Multiemployer Plan other than those identified on Schedule 7.10 of the Disclosure Letter;

 

(b)                 Each Credit Party and each ERISA Affiliate is in compliance with all applicable provisions of ERISA, the Code and the regulations and published interpretations thereunder with respect to all Employee Benefit Plans except for any required amendments for which the remedial amendment period as defined in Section 401(b) of the Code has not yet expired and except where a failure to so comply could not reasonably be expected to have a Material Adverse Effect. Each Employee Benefit Plan that it is intended to be qualified under Section 401(a) of the Code has been determined by the IRS to be so qualified (or is considered to be so qualified due to permitted reliance on an opinion letter from the IRS), and each trust related to such plan has been determined to be exempt under Section 501(a) of the Code except for such plans and trusts that have submitted an application for but not yet received determination letters or for which the remedial amendment period for submitting an application for a determination letter has not yet expired. No liability has been incurred by any Credit Party or any ERISA Affiliate which remains unsatisfied for any taxes or penalties assessed with respect to any Employee Benefit Plan or any Multiemployer Plan except for a liability that could not reasonably be expected to have a Material Adverse Effect;

 

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(c)                 As of the Effective Date, no Pension Plan has been terminated with respect to which there is any unsatisfied liability that could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, nor has any Pension Plan become subject to funding based benefit restrictions under Section 436 of the Code, nor has any funding waiver from the IRS been received or requested with respect to any Pension Plan, nor has any Credit Party or any ERISA Affiliate failed to make any contributions or to pay any amounts due and owing as required by Sections 412 or 430 of the Code, Section 302 of ERISA or the terms of any Pension Plan on or prior to the due dates of such contributions under Sections 412 or 430 of the Code or Section 302 of ERISA, nor has there been any event requiring any disclosure under Section 4041(c)(3)(C) or 4063(a) of ERISA with respect to any Pension Plan;

 

(d)                 Except where the failure of any of the following representations to be correct could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, no Credit Party nor any ERISA Affiliate has: (i) engaged in a nonexempt prohibited transaction described in Section 406 of the ERISA or Section 4975 of the Code; (ii) incurred any liability to the PBGC which remains outstanding other than the payment of premiums and there are no premium payments which are due and unpaid; (iii) failed to make a required contribution or payment to a Multiemployer Plan; or (iv)  failed to make a required installment or other required payment under Sections 412 or 430 of the Code;

 

(e)                 No Termination Event has occurred or is reasonably expected to occur;

 

(f)                  Except where the failure of any of the following representations to be correct could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, no proceeding, claim (other than a benefits claim in the ordinary course of business), lawsuit and/or investigation is existing or, to its knowledge, threatened concerning or involving: (i) any employee welfare benefit plan (as defined in Section 3(1) of ERISA) currently maintained or contributed to by any Credit Party or any ERISA Affiliate; (ii) any Pension Plan; or (iii) any Multiemployer Plan.

 

(g)                 No Credit Party nor any Subsidiary thereof is a party to any contract, agreement or arrangement that could, solely as a result of the delivery of this Agreement or the consummation of transactions contemplated hereby, result in the payment of any “excess parachute payment” within the meaning of Section 280G of the Code.

 

SECTION 7.11       Use of Proceeds; Margin Stock.

 

(a)                 The proceeds of the Loans and Letters of Credit are intended to be and shall be used solely for the purposes set forth in and permitted by Section 9.17.

 

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(b)                 No Credit Party nor any Subsidiary thereof is engaged principally or as one of its activities in the business of extending credit for the purpose of “purchasing” or “carrying” any “margin stock” (as each such term is defined or used, directly or indirectly, in Regulation U of the Board of Governors of the Federal Reserve System). No part of the proceeds of any of the Loans or Letters of Credit will be used for purchasing or carrying margin stock or for any purpose which violates, or which would be inconsistent with, the provisions of Regulation T, U or X of such Board of Governors. Following the application of the proceeds of each Extension of Credit, not more than twenty-five percent (25%) of the value of the assets (either of the Borrower only or of the Borrower and its Subsidiaries on a Consolidated basis) subject to the provisions of Section 9.2 or Section 9.5 or subject to any restriction contained in any agreement or instrument between the Borrower and any Lender or any Affiliate of any Lender relating to Indebtedness in excess of the Threshold Amount will be “margin stock”.

 

SECTION 7.12        Government Regulation. No Credit Party nor any Subsidiary thereof is an “investment company” or a company “controlled” by an “investment company” (as each such term is defined or used in the Investment Company Act of 1940) and no Credit Party nor any Subsidiary thereof is, or after giving effect to any Extension of Credit will be, subject to regulation under any other Applicable Law which limits its ability to incur or consummate the transactions contemplated hereby.

 

SECTION 7.13        Material Contracts. Schedule 7.13 of the Disclosure Letter sets forth a complete and accurate list of all Material Contracts of each Credit Party and each Subsidiary thereof in effect as of the Effective Date. Other than as set forth in Schedule 7.13 of the Disclosure Letter, as of the Effective Date, each such Material Contract is, and after giving effect to the consummation of the transactions contemplated by the Loan Documents will continue to be, in full force and effect in accordance with the terms thereof. To the extent requested by the Administrative Agent, each Credit Party and each Subsidiary thereof has delivered to the Administrative Agent a true and complete copy of each Material Contract required to be listed on Schedule 7.13 of the Disclosure Letter or any other Schedule hereto; provided that any such Material Contract may be delivered electronically in accordance with the second paragraph of Section 8.2. As of the Effective Date, no Credit Party nor any Subsidiary thereof (nor, to its knowledge, any other party thereto) is in breach of or in default under any Material Contract in any material respect.

 

SECTION 7.14       Employee Relations. As of the Effective Date, no Credit Party nor any Subsidiary thereof is party to any collective bargaining agreement, nor has any labor union been recognized as the representative of its employees except as set forth on Schedule 7.14 of the Disclosure Letter. The Borrower knows of no pending, threatened or contemplated strikes, work stoppage or other collective labor disputes involving its employees or those of its Subsidiaries that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.

 

SECTION 7.15        Burdensome Provisions. The Credit Parties and their respective Subsidiaries do not presently anticipate that future expenditures needed to meet the provisions of any statutes, orders, rules or regulations of a Governmental Authority will be so burdensome as to have a Material Adverse Effect. No Subsidiary is party to any agreement or instrument or otherwise subject to any restriction or encumbrance that restricts or limits its ability to make dividend payments or other distributions in respect of its Equity Interests to the Borrower or any Subsidiary or to transfer any of its assets or properties to the Borrower or any other Subsidiary in each case other than existing under or by reason of the Loan Documents or Applicable Law or as permitted under Section 9.10.

 

SECTION 7.16        Financial Statements. The audited and unaudited financial statements delivered pursuant to Section 6.1(e)(i) and Sections 8.1(a) and (b), fairly present in all material respects on a Consolidated basis the assets, liabilities and financial position of the Borrower and its Subsidiaries in each case as at such dates, and the results of the operations and changes of financial position for the periods then ended (other than customary year-end adjustments for unaudited financial statements and the absence of footnotes from unaudited financial statements). All such financial statements, including the related schedules and notes thereto, have been prepared in accordance with GAAP. Such financial statements show all material indebtedness and other material liabilities, direct or contingent, of the Borrower and its Subsidiaries as of the date thereof, including material liabilities for taxes, material commitments, and Indebtedness, in each case, to the extent required to be disclosed under GAAP. The projections delivered pursuant to Section 6.1(e)(ii) and Section 8.1(c) were prepared in good faith on the basis of the assumptions stated therein, which assumptions are believed to be reasonable in light of then existing conditions (it being recognized by the Lenders that such projections are not to be viewed as facts and that the actual results during the period or periods covered by such projections may vary from such projections and that such differences may be material and that such projections are not a guarantee of financial performance).

 

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SECTION 7.17        No Material Adverse Change. Since December 31, 2018, there has been no material adverse change in the properties, business, operations, or condition (financial or otherwise) of the Borrower and its Subsidiaries, taken as a whole, and no event has occurred or condition arisen, either individually or in the aggregate, that could reasonably be expected to have a Material Adverse Effect.

 

SECTION 7.18        Solvency. The Borrower and its Subsidiaries, on a Consolidated basis, are Solvent.

 

SECTION 7.19        Title to Properties. As of the Effective Date, the real property listed on Schedule 7.19 of the Disclosure Letter constitutes all of the real property that is owned, leased or subleased by any Credit Party or any of its Subsidiaries. Each Credit Party and each Subsidiary thereof has such title to, or leasehold interest in, the real property owned or leased by it as is necessary or desirable to the conduct of its business and valid and legal title to all of its personal property and assets, except (a) those which have been disposed of by the Credit Parties and their Subsidiaries subsequent to such date which dispositions have been in the ordinary course of business or as otherwise expressly permitted hereunder, (b) for such defects of title that could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect and (c) for Permitted Liens.

 

SECTION 7.20        Litigation. Except for matters existing on the Effective Date and set forth on Schedule 7.20 of the Disclosure Letter, there are no actions, suits or proceedings pending nor, to its knowledge, threatened in writing against or in any other way relating adversely to or affecting any Credit Party or any Subsidiary thereof or any of their respective properties in any court or before any arbitrator of any kind or before or by any Governmental Authority that could reasonably be expected to have a Material Adverse Effect.

 

SECTION 7.21       Anti-Corruption Laws; Anti-Money Laundering Laws and Sanctions. None of: (a) the Borrower, any Subsidiary or, to the knowledge of the Borrower or such Subsidiary, any of their respective directors, officers, employees or affiliates; or (b) to the knowledge of the Borrower, any agent or representative of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby: (i) is, or is owned or controlled by, a Sanctioned Person or currently the subject or target of any Sanctions; (ii) has taken any action, directly or indirectly, that would result in a violation by such Persons of the PATRIOT Act; or (iii) has taken any action, directly or indirectly, that would result in a violation by such Persons of any Anti-Corruption Laws or Sanctions. The Borrower has implemented and maintains in effect policies and procedures designed to promote and achieve compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions. No Loans or Letter of Credit, use of proceeds or other transaction contemplated by this Agreement will violate any Anti-Corruption Law or applicable Sanctions.

 

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SECTION 7.22        Absence of Defaults. No event has occurred or is continuing: (a) which constitutes a Default or an Event of Default; or (b) which constitutes a default or event of default by any Credit Party or any Subsidiary thereof under: (i) any Material Contract; or (ii) any judgment, decree or order to which any Credit Party or any Subsidiary thereof is a party or by which any Credit Party or any Subsidiary thereof or any of their respective properties may be bound or which would require any Credit Party or any Subsidiary thereof to make any payment thereunder prior to the scheduled maturity date therefor that, in any case under this clause (ii), could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

 

SECTION 7.23        Senior Indebtedness Status. The Obligations of each Credit Party and each Subsidiary thereof under this Agreement and each of the other Loan Documents rank and shall continue to rank at least senior in priority of payment to all Subordinated Indebtedness of each such Person, and shall constitute and shall continue to constitute “Senior Indebtedness” and “Designated Senior Debt” (or any other term of similar meaning and import) under all instruments and documents, now or in the future, relating to any senior unsecured Indebtedness and Subordinated Indebtedness of such Person (to the extent the concept of “Senior Indebtedness” or “Designated Senior Debt” (or similar concept) exists therein).

 

SECTION 7.24        Disclosure. The Borrower and/or its Subsidiaries have disclosed to the Administrative Agent and the Lenders all agreements, instruments and corporate or other restrictions to which any Credit Party and any Subsidiary thereof are subject, and all other matters known to them, that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect. No financial statement, material report, material certificate or other written material information furnished by or on behalf of any Credit Party or any Subsidiary thereof to the Administrative Agent or any Lender in connection with the transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder (as modified or supplemented by other written information so furnished), taken together as a whole, contains any untrue statement of a material fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (as modified or supplemented by other written information so furnished); provided that: (a) no representation is made with respect to projected financial information, estimated financial information and other projected or estimated information, except that such information was prepared in good faith based upon assumptions believed to be reasonable at the time (it being recognized by the Lenders that projections are not to be viewed as facts and that the actual results during the period or periods covered by such projections, many of which are beyond the control of the Borrower and its Subsidiaries, may vary from such projections and that such difference may be material and that such projections are not a guarantee of financial performance); and (b) no representation is made with respect to information of a general economic or general industry nature.

 

SECTION 7.25       Security Documents.

 

(a)      The Collateral Agreement as reaffirmed by the Reaffirmation Agreement, upon execution and delivery thereof by the parties thereto, will create (or continues to create) in favor of the Administrative Agent, for the ratable benefit of the Secured Parties, a valid and enforceable security interest in the Collateral described therein, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal Debtor Relief Laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies and (i) when the Pledged Debt and Pledged Equity Interests (each as defined in the Collateral Agreement) are delivered to the Administrative Agent, the Lien created under the Collateral Agreement shall constitute (or continues to constitute) a fully perfected first priority Lien on, and security interest in, all right, title and interest of the Credit Parties in such Pledged Debt and Pledged Equity Interests, in each case prior and superior in right to any other Person, and (ii) when financing statements in appropriate form are filed in the offices specified on Schedule 7.25(a) of the Disclosure Letter, the Liens created under the Collateral Agreement will constitute (or continue to constitute) fully perfected Liens on, and security interests in, all right, title and interest of the Credit Parties in such Collateral (other than Intellectual Property, as defined in the Collateral Agreement, and Deposit Accounts, as defined in the Collateral Agreement), in each case prior and superior in right to any other Person, other than with respect to Liens expressly permitted by Section 9.2.

 

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(b)       Upon the recordation of the Collateral Agreement (or a short-form security agreement in form and substance reasonably satisfactory to the Borrower and the Administrative Agent) with the United States Patent and Trademark Office and the United States Copyright Office, together with the financing statements in appropriate form filed in the offices specified on Schedule 7.25(a) of the Disclosure Letter, the Liens created under the Collateral Agreement shall constitute (or continue to constitute) fully perfected Liens on, and security interests in, all right, title and interest of the Credit Parties in the Intellectual Property (as defined in the Collateral Agreement) in which a security interest may be perfected by filing in the United States and its territories and possessions, in each case prior and superior in right to any other Person (it being understood that (i) subsequent recordings in the United States Patent and Trademark Office and the United States Copyright Office may be necessary to perfect a Lien on registered trademarks and patents, trademark and patent applications and registered copyrights acquired by the Credit Parties after the date hereof and (ii) any “intent to use” trademark or service applications are excluded from the Collateral), other than with respect to Liens expressly permitted by Section 9.2.

 

(c)      Each Mortgage, upon execution and delivery thereof by the parties thereto, will create (or created) in favor of the Administrative Agent, for the ratable benefit of the Secured Parties, a valid and enforceable Lien on all of the Credit Parties’ right, title and interest in and to the Material Real Property subject thereto and the proceeds thereof, and when the Mortgages are filed in the offices specified on Schedule 7.25(c) of the Disclosure Letter, the Mortgages shall at all times constitute a fully perfected security interest in all right, title and interest of the Credit Parties in such Material Real Property and the proceeds thereof, in each case prior and superior in right to any other Person, other than with respect to the rights of Persons pursuant to Liens expressly permitted by Section 9.2.

 

SECTION 7.26        Insurance Matters. The properties of the Borrower and its Subsidiaries are insured with financially sound and reputable insurance companies not Affiliates of the Borrower, in such amounts, with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where the Borrower or the applicable Subsidiary operates.

 

SECTION 7.27        Flood Hazard Insurance. With respect to each parcel of real property that is located within a special flood hazard area and that is subject to a Mortgage, the Administrative Agent has received: (a) such flood hazard certifications, notices and confirmations thereof, and effective flood hazard insurance policies with respect to all real property of the Borrower and its Subsidiaries constituting Collateral on such terms and in such amounts as required by The National Flood Insurance Reform Act of 1994 and as otherwise required by Administrative Agent or the Required Lenders; (b) all flood hazard insurance policies required hereunder have been obtained and remain in full force and effect, and the premiums thereon have been paid in full, and (c) except as the Borrower has previously given written notice thereof to the Administrative Agent, there has been no redesignation of any real property into or out of a special flood hazard area.

 

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SECTION 7.28        EEA Financial Institution. Neither the Borrower nor any other Credit Party is an EEA Financial Institution.

 

SECTION 7.29        Beneficial Ownership Certification. As of the Effective Date, to the best of the knowledge of the Borrower, the information included in the Beneficial Ownership Certification, if applicable, is true and correct in all respects.

 

ARTICLE VIII

 

AFFIRMATIVE COVENANTS

 

Until the Discharge of the Obligations, each Credit Party will, and will cause each of its Subsidiaries to:

 

SECTION 8.1      Financial Statements and Budgets. Deliver to the Administrative Agent, in form and detail satisfactory to the Administrative Agent (which shall promptly make such information available to the Lenders in accordance with its customary practice):

 

(a)                 Annual Financial Statements. As soon as practicable and in any event within ninety (90) days (or, if earlier, on the date of any required public filing thereof) after the end of each Fiscal Year (commencing with the Fiscal Year ended December 31, 2019), an audited Consolidated balance sheet of the Borrower and its Subsidiaries as of the close of such Fiscal Year and audited Consolidated statements of income, shareholder’s equity, and cash flows, including the notes thereto, all in reasonable detail setting forth in comparative form the corresponding figures as of the end of and for the preceding Fiscal Year and, if applicable, containing disclosure of the effect on the financial position or results of operations of any material change in the application of accounting principles and practices during the year. Such annual financial statements shall be: (i) audited by Deloitte LLP or another independent certified public accounting firm of recognized national standing; and (ii) accompanied by a report and opinion thereon by such certified public accountants prepared in accordance with generally accepted auditing standards that is not subject to any “going concern” or similar qualification or exception (other than a qualification related to the maturity of the Commitments and the Loans at the Revolving Credit Maturity Date or Term Loan Maturity Date, as applicable, within one year from the date such opinion is delivered) or any qualification as to the scope of such audit or with respect to accounting principles followed by the Borrower or any of its Subsidiaries not in accordance with GAAP.

 

(b)                 Quarterly Financial Statements. As soon as practicable and in any event within forty-five (45) days (or, if earlier, on the date of any required public filing thereof) after the end of the first three (3) fiscal quarters of each Fiscal Year (commencing with the fiscal quarter ended March 31, 2020), an unaudited Consolidated balance sheet of the Borrower and its Subsidiaries as of the close of such fiscal quarter and unaudited Consolidated statements of income, shareholder’s equity, and cash flows for the fiscal quarter then ended and that portion of the Fiscal Year then ended, including the notes thereto, all in reasonable detail setting forth in comparative form the corresponding figures as of the end of and for the corresponding period in the preceding Fiscal Year and, if applicable, containing disclosure of the effect on the financial position or results of operations of any material change in the application of accounting principles and practices during the period, and certified by the chief financial officer of the Borrower as having been prepared in accordance with GAAP and to present fairly in all material respects the financial condition of the Borrower and its Subsidiaries on a Consolidated basis as of their respective dates and the results of operations of the Borrower and its Subsidiaries for the respective periods then ended, subject to normal year-end adjustments and the absence of footnotes.

 

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(c)                 Annual Business Plan and Budget. As soon as practicable and in any event within seventy-five (75) days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2019), a business plan and operating and capital budget of the Borrower and its Subsidiaries for the ensuing Fiscal Year, such plan to be prepared in accordance with GAAP and to include the following: an operating and capital budget, a projected income statement and balance sheet, and projected calculations of the financial covenants set forth in Section 9.14, accompanied by a certificate from a Responsible Officer of the Borrower to the effect that such budget contains good faith estimates (utilizing assumptions believed to be reasonable at the time of preparation of such budget) of the financial condition and operations of the Borrower and its Subsidiaries for such period.

 

SECTION 8.2       Certificates; Other Reports. Deliver to the Administrative Agent (which shall promptly make such information available to the Lenders in accordance with its customary practice):

 

(a)                 at each time financial statements are delivered pursuant to Sections 8.1(a) or (b) and at such other times as the Administrative Agent shall reasonably request, a duly completed Officer’s Compliance Certificate signed by the chief executive officer, chief financial officer, treasurer or controller of the Borrower, and a report containing management’s discussion and analysis of such financial statements;

 

(b)                 promptly upon receipt thereof (unless restricted by applicable professional standards with respect to which mutually agreeable arrangements cannot be made to permit disclosure thereof), copies of all material reports, if any, submitted to any Credit Party, any Subsidiary thereof or any of their respective boards of directors by their respective independent public accountants in connection with their auditing function, including, without limitation, any management report and any management responses thereto;

 

(c)                 promptly after the furnishing thereof, copies of any notice of default and any other material statement, report, or certificate furnished to any holder of Indebtedness of any Credit Party or any Subsidiary thereof in excess of the Threshold Amount pursuant to the terms of any indenture, loan or credit or similar agreement;

 

(d)                 promptly after an officer of any Credit Party obtaining knowledge of the assertion or occurrence thereof, notice of any action or proceeding against or of any noncompliance by any Credit Party or any Subsidiary thereof with any Environmental Law that could: (i) reasonably be expected to have a Material Adverse Effect; or (ii) cause any Property described in the Mortgages to be subject to any restrictions on ownership, occupancy, use or transferability under any Environmental Law;

 

(e)                 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 which the Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Exchange Act, or with any national securities exchange, and in any case not otherwise required to be delivered to the Administrative Agent pursuant hereto;

 

(f)                  promptly, and in any event within five (5) Business Days after receipt thereof by any Credit Party or any Subsidiary thereof, copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of any Credit Party or any Subsidiary thereof (other than comment letters from the SEC, the contents of which are not materially adverse to the Lenders);

 

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(g)                 promptly upon the request thereof, such other information and documentation required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations (including, without limitation, the PATRIOT Act and the Beneficial Ownership Regulation), as from time to time reasonably requested by the Administrative Agent or any Lender; and

 

(h)                 such other information regarding the operations, business affairs and financial condition of any Credit Party or any Subsidiary thereof as the Administrative Agent or any Lender may reasonably request.

 

Documents required to be delivered pursuant to Section 7.13, Sections 8.1(a) or (b), or Section 8.2(e) or (f) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date: (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the website address listed in Section 12.1; or (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (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 until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender; and (B)  the Borrower shall notify the Administrative Agent and each Lender (by facsimile or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions of such documents. Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper, facsimile or electronic (i.e., “pdf” or “tif” format) copies of the Officer’s Compliance Certificates required by Section 8.2 to the Administrative Agent. Except for such Officer’s Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.

 

The Borrower hereby acknowledges that: (a) the Administrative Agent and/or the Arrangers will make available to the Lenders and the Issuing Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on the Platform; and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrower, any of its Subsidiaries, or any of their respective securities) (each, a “Public Lender”). The Borrower hereby agrees that it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that: (w) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, means that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arrangers, the Issuing Lenders and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 12.10); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) the Administrative Agent and the Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Investor.”

 

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SECTION 8.3       Notice of Litigation and Other Matters. Promptly (but in no event later than ten (10) days after any Responsible Officer of any Credit Party obtains knowledge thereof) notify the Administrative Agent in writing of (which shall promptly make such information available to the Lenders in accordance with its customary practice):

 

(a)                 the occurrence of any Default or Event of Default;

 

(b)                 the commencement of all proceedings and investigations by or before any Governmental Authority and all actions and proceedings in any court or before any arbitrator against or involving any Credit Party or any Subsidiary thereof or any of their respective properties, assets or businesses in each case that could reasonably be expected to have a Material Adverse Effect;

 

(c)                 any written notice of any violation received by any Credit Party or any Subsidiary thereof from any Governmental Authority including, without limitation, any written notice of violation of applicable Environmental Laws which in any such case could reasonably be expected to have a Material Adverse Effect;

 

(d)                 [Reserved]

 

(e)                 any labor controversy that has resulted in, or threatens to result in, a strike or other work action against any Credit Party or any Subsidiary thereof;

 

(f)                  any attachment, judgment, lien, levy or order exceeding the Threshold Amount that is assessed against or threatened in writing against any Credit Party or any Subsidiary thereof;

 

(g)                 any event which constitutes, or which with the passage of time or giving of notice or both would constitute, a default or event of default under any Material Contract to which the Borrower or any of its Subsidiaries is a party or by which the Borrower or any Subsidiary thereof or any of their respective properties may be bound which could reasonably be expected to have a Material Adverse Effect; and

 

(h)                 (i) any unfavorable determination letter from the IRS regarding the qualification of an Employee Benefit Plan under Section 401(a) of the Code (along with a copy thereof), (ii) all notices received by any Credit Party or any ERISA Affiliate of the PBGC’s intent to terminate any Pension Plan or to have a trustee appointed to administer any Pension Plan, (iii) all notices received by any Credit Party or any ERISA Affiliate from a Multiemployer Plan sponsor concerning the imposition or amount of withdrawal liability pursuant to Section 4202 of ERISA and (iv) the Borrower obtaining knowledge or reason to know that any Credit Party or any ERISA Affiliate has filed or intends to file a notice of intent to terminate any Pension Plan under a distress termination within the meaning of Section 4041(c) of ERISA.

 

Each notice pursuant to Section 8.3 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 or proposes to take with respect thereto. Each notice pursuant to Section 8.3(a) shall describe with particularity any and all provisions of this Agreement and any other Loan Document that have been breached.

 

SECTION 8.4      Preservation of Corporate Existence and Related Matters. Except as permitted by Section 9.4, preserve and maintain its separate corporate existence and all rights, franchises, licenses and privileges necessary to the conduct of its business, and qualify and remain qualified as a foreign corporation or other entity and authorized to do business in each jurisdiction where the nature and scope of its activities require it to so qualify under Applicable Law in which the failure to so qualify could reasonably be expected to have a Material Adverse Effect.

 

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SECTION 8.5      Maintenance of Property and Licenses.

 

(a)                 In addition to the requirements of any of the Security Documents, protect and preserve all Properties necessary in and material to its business, including copyrights, patents, trade names, service marks and trademarks; maintain in good working order and condition, ordinary wear and tear excepted, all buildings, equipment and other tangible real and personal property; and from time to time make or cause to be made all repairs, renewals and replacements thereof and additions to such Property necessary for the conduct of its business, so that the business carried on in connection therewith may be conducted in a commercially reasonable manner; provided that nothing in this Section 8.5(a) shall prohibit or prevent the Borrower or any Subsidiary from discontinuing the protection, preservation or maintenance of any of its Properties: (i) if, in the reasonable good faith judgment of the Borrower or such Subsidiary, such discontinuance is desirable in the conduct of its business or such Properties are no longer material to the business of the Borrower or such Subsidiary; and (ii) such discontinuance could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

 

(b)                 Maintain, in full force and effect in all material respects, each and every material license, permit, certification, qualification, approval or franchise issued by any Governmental Authority (each a “License”) required for each of them to conduct their respective businesses as presently conducted; provided that the Borrower or any Subsidiary thereof shall not be required to preserve any such Licenses if: (i) the Borrower or such Subsidiary shall determine in its reasonable good faith judgment that the preservation thereof is no longer desirable in the conduct of its business; (ii) the loss thereof is not disadvantageous in any material respect to such Person or any Lender; and (iii) the loss thereof could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

 

SECTION 8.6      Insurance. Maintain insurance with financially sound and reputable insurance companies against at least such risks and in at least such amounts as are customarily maintained by similar businesses and as may be required by Applicable Law (including, without limitation, hazard and business interruption insurance). All such insurance shall: (a) in the case of any such insurance procured in the United States, (x) to the extent agreed to by such insurance company after the Borrower’s use of commercially reasonable efforts, provide for not less than thirty (30) days’ prior written notice to the Administrative Agent of termination, lapse or cancellation of such insurance and (y) in any event, provide for not less than ten (10) days’ prior written notice to the Administrative Agent of termination, lapse or cancellation of such insurance due to failure to pay premiums; (b) in the case of liability insurance, name the Administrative Agent as an additional insured party thereunder (provided that in the case of any liability insurance policy procured outside of the United States, such policy shall not be required to so name the Administrative Agent as an additional insured party if the Borrower or the applicable Subsidiary has been unable to obtain such endorsement from the applicable insurer after the use of commercially reasonable efforts); and (c) in the case of each casualty insurance policy of the Credit Parties, name the Administrative Agent as lender’s loss payee or mortgagee, as applicable. On the Effective Date and from time to time thereafter deliver to the Administrative Agent upon its request information in reasonable detail as to the insurance then in effect, stating the names of the insurance companies, the amounts and rates of the insurance, the dates of the expiration thereof and the properties and risks covered thereby. Without limiting the foregoing, the Borrower shall and shall cause each appropriate Credit Party to: (i) maintain, if available, fully paid flood hazard insurance on all owned real property that is located in a special flood hazard area and that is subject to a Mortgage, on such terms and in such amounts as required by The National Flood Insurance Reform Act of 1994 and as otherwise required by Required Lenders or the Administrative Agent; (ii) furnish to the Administrative Agent evidence of renewal (and payment of renewal premiums therefor) of all such policies prior to the expiration or lapse thereof; and (iii) furnish to the Administrative Agent prompt written notice of any redesignation of any such improved real property into or out of a special flood hazard area.

 

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SECTION 8.7      Accounting Methods and Financial Records. Maintain a system of accounting, and keep proper books, records and accounts (which shall be true and complete in all material respects) as may be required or as may be necessary to permit the preparation of financial statements in accordance with GAAP and in compliance in all material respects with the regulations of any Governmental Authority having jurisdiction over it or any of its Properties.

 

SECTION 8.8      Payment of Taxes and Other Obligations. Pay and perform: (a) all Taxes, assessments, and other governmental charges that may be levied or assessed upon it or any of its Property; and (b) all other Indebtedness, obligations and liabilities in accordance with customary trade practices that, in either case of clause (a) or (b), if not so paid could reasonably be expected to have a Material Adverse Effect; provided that the Borrower or such Subsidiary may contest any item described in clause (a) of this Section in good faith so long as adequate reserves are maintained with respect thereto in accordance with GAAP.

 

SECTION 8.9      Compliance with Laws and Approvals. Observe and remain in compliance with all Applicable Laws (including without limitation, the PATRIOT Act and the Beneficial Ownership Regulation) and maintain in full force and effect all Governmental Approvals, in each case applicable to the conduct of its business except where the failure to do so could not reasonably be expected to have a Material Adverse Effect.

 

SECTION 8.10       Environmental Laws. In addition to and without limiting the generality of Section 8.9, except where the failure to do so could not reasonably be expected to have a Material Adverse Effect: (a) comply in all material respects with, all applicable Environmental Laws, and obtain and comply with and maintain, and use commercially reasonable efforts to ensure that all tenants and subtenants, if any, obtain and comply in all material respects with and maintain, any and all licenses, approvals, notifications, registrations or permits required by applicable Environmental Laws; and (b)  conduct and complete all investigations, studies, sampling and testing, and all remedial, removal and other actions required under Environmental Laws, and promptly comply with all lawful orders and directives of any Governmental Authority regarding applicable Environmental Laws. In addition, each Credit Party shall defend, indemnify and hold harmless the Administrative Agent and the Lenders, and their respective parents, Subsidiaries, Affiliates, employees, agents, officers and directors, from and against any claims, demands, penalties, fines, liabilities, settlements, damages, costs and expenses of whatever kind or nature known or unknown, contingent or otherwise, arising out of, or in any way relating to the presence of Hazardous Materials, or the violation of, noncompliance with or liability under any applicable Environmental Laws applicable to the operations of the Borrower or any such Subsidiary, or any orders, requirements or demands of Governmental Authorities related thereto, including, without limitation, reasonable attorney’s and consultant’s fees, investigation and laboratory fees, response costs, court costs and litigation expenses, except to the extent that any of the foregoing directly result from the gross negligence or willful misconduct of the party seeking indemnification therefor, as determined by a court of competent jurisdiction by final nonappealable judgment.

 

SECTION 8.11      Compliance with ERISA. In addition to and without limiting the generality of Section 8.9: (a) except where the failure to so comply could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect: (i) comply with applicable provisions of ERISA, the Code and the regulations and published interpretations thereunder with respect to all Employee Benefit Plans; (ii) not take any action or fail to take action the result of which could reasonably be expected to result in a liability to the PBGC or to a Multiemployer Plan; (iii) not participate in any nonexempt prohibited transaction that could result in any civil penalty under ERISA or tax under the Code; and (iv) operate each Employee Benefit Plan in such a manner that will not incur any tax liability under Section 4980B of the Code or any liability to any qualified beneficiary as defined in Section 4980B of the Code; and (b) furnish to the Administrative Agent upon the Administrative Agent’s request such additional information about any Employee Benefit Plan as may be reasonably requested by the Administrative Agent.

 

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SECTION 8.12      Compliance with Material Contracts. Comply in all respects with each Material Contract except as could not reasonably be expected to have a Material Adverse Effect; provided that the Borrower or any such Subsidiary may contest the terms and conditions of any such Material Contract in good faith through applicable proceedings so long as adequate reserves are maintained in accordance with GAAP.

 

SECTION 8.13      Visits and Inspections. Permit representatives of the Administrative Agent or any Lender, from time to time upon prior reasonable written notice and at such times during normal business hours, all at the expense of the Borrower, to visit and inspect its properties; inspect, audit and make extracts from its books, records and files, including, but not limited to, management letters prepared by independent accountants; and discuss with its principal officers, and its independent accountants, its business, assets, liabilities, financial condition, results of operations and business prospects; provided that excluding any such visits and inspections during the continuation of an Event of Default: (a) any such visits and inspections by any Lender (excluding any Lender that also acts as Administrative Agent) shall be at such Lender’s expense; and (b) the Administrative Agent shall not exercise such rights more often than two (2) times during any calendar year at the Borrower’s expense; provided further that upon the occurrence and during the continuance of an Event of Default, the Administrative Agent or any Lender may do any of the foregoing at the expense of the Borrower at any time without advance notice. Each Credit Party and its Subsidiaries may place reasonable limits on access to information, the disclosure of which would be prohibited by a confidentiality agreement or is otherwise proprietary or confidential, in each case of such agreement or other restrictions, entered into by such Credit Party or such Subsidiary on an arm’s-length basis and in good faith, unless mutually agreeable arrangements are made (and at the Administrative Agent’s reasonable request, such Credit Party or such Subsidiary shall take all commercially reasonable efforts to cause such arrangements to be made) to permit the disclosure of such information and preserve such information as confidential or proprietary and neither the Borrower nor any Subsidiary shall be required to disclose any trade secrets. Upon the request of the Administrative Agent or the Required Lenders, participate in a meeting of the Administrative Agent and Lenders once during each Fiscal Year, which meeting will be held at the Borrower’s corporate offices (or such other location as may be agreed to by the Borrower and the Administrative Agent) at such time as may be agreed by the Borrower and the Administrative Agent.

 

SECTION 8.14      Additional Subsidiaries, Real Property and Other Collateral.

 

(a)                 Additional Subsidiary Guarantors. Promptly after the creation or acquisition of any Subsidiary (other than an Excluded Subsidiary)or after the date when a Subsidiary ceases to be an Excluded Subsidiary (including due to revocation of a designation of an “Immaterial Subsidiary”) (and, in any event, within forty-five (45) days after such creation, acquisition, or cessation, as such time period may be extended by the Administrative Agent in its sole discretion), cause: (i) such Subsidiary to become a Subsidiary Guarantor by delivering to the Administrative Agent a duly executed supplement to the Guaranty Agreement or such other document as the Administrative Agent shall deem appropriate for such purpose; (ii) such person to grant a security interest in all Collateral (subject to clauses (b) and (e) below and the exceptions specified in the Collateral Agreement) owned by such Subsidiary by delivering to the Administrative Agent a duly executed supplement to each applicable Security Document or such other document as the Administrative Agent shall deem appropriate for such purpose and comply with the terms of each applicable Security Document; (iii) to be delivered to the Administrative Agent such opinions, documents, and certificates referred to in Section 6.1 as may be reasonably requested by the Administrative Agent; (iv) to be delivered to the Administrative Agent original certificated Equity Interests or other certificates and stock or other transfer powers evidencing the Equity Interests of such Person (to the extent such Equity Interests are certificated); (v) to be delivered to the Administrative Agent such updated Schedules to the Loan Documents and supplements to the Disclosure Letter as requested by the Administrative Agent with respect to such Person; and (vi) to be delivered to the Administrative Agent such other documents as may be reasonably requested by the Administrative Agent, all in form, content and scope reasonably satisfactory to the Administrative Agent.

 

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(b)                 Equity Interests of Domestic Subsidiaries, Foreign Subsidiaries, and Foreign Subsidiary Holding Companies. Cause: (i) 100% of the issued and outstanding Equity Interests of each Subsidiary (other than Subsidiaries that are Foreign Subsidiary Holding Companies or Excluded Foreign Subsidiaries); and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)), and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)), in each other Subsidiary, in each case, directly owned by any Credit Party, to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent pursuant to the terms and conditions of the Security Documents and shall deliver to the Administrative Agent such opinions of counsel (if requested by the Administrative Agent) and any filings and deliveries reasonably necessary in connection therewith to perfect the security interests therein to the extent required by the Security Documents and such other documents and certificates referred to in Section 6.1 and any other documents as may be reasonably requested by the Administrative Agent, all in form and substance reasonably satisfactory to the Administrative Agent (including, without limitation, a consent thereto executed by such Subsidiary; if applicable, original certificated Equity Interests (or the equivalent thereof pursuant to the Applicable Laws and practices of any relevant foreign jurisdiction), evidencing the Equity Interests of such Persons, together with an appropriate undated stock or other transfer power for each certificate duly executed in blank by the registered owner thereof; and updated Schedules to the Loan Documents as requested by the Administrative Agent with regard to such Person); provided that with respect to Foreign Subsidiaries, creation and perfection actions and documentation under any foreign Applicable Laws shall only be required to be taken with respect to each such Subsidiary that, on a Consolidated basis with its Subsidiaries, has: (x) assets in excess of 10% of Consolidated Total Assets as set forth on the most recent financial statements delivered pursuant to Section 8.1(a); or (y) annual revenues in excess of 10% of the Consolidated revenues of the Borrower and its Subsidiaries as set forth on the most recent financial statements delivered pursuant to Section 8.1(a); provided further that the Credit Parties shall have forty-five (45) days after the acquisition or formation of any Subsidiary or any Subsidiary becoming a Credit Party to comply with this Section 8.14(b) (or sixty (60) days in the case of actions required under any foreign Applicable Laws), in each case as such time period may be extended by the Administrative Agent in its sole discretion.

 

(c)                 Real Property Collateral. Notify the Administrative Agent in writing within fifteen (15) days after the acquisition by any Credit Party of any Material Real Property that is not subject to an existing Security Document (as such time period may be extended by the Administrative Agent in its sole discretion), and promptly thereafter (and in any event, within sixty (60) days of such acquisition (as such time period may be extended by the Administrative Agent, in its sole discretion)) deliver such Mortgages and Real Estate Support Documents reasonably requested by the Administrative Agent in connection with granting and perfecting a Lien on such Material Real Property in favor of the Administrative Agent, for the ratable benefit of the Secured Parties, all in form and substance reasonably acceptable to the Administrative Agent; provided that the Borrower shall provide flood hazard certifications and evidence of flood insurance (if such insurance is required by Applicable Law) to the Administrative Agent (for distribution to the Lenders) at least ten (10) Business Days in advance of delivering the related Mortgage and the Administrative Agent shall not enter into any Mortgage unless the Borrower shall have delivered the foregoing documentation to the Administrative Agent at least ten (10) Business Days in advance of delivering the related Mortgage (it being understood that the Borrower shall use diligent efforts to promptly provide any further documentation reasonably requested by the Administrative Agent relating to flood hazard certifications and flood insurance).

 

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(d)                 Merger Subsidiaries. Notwithstanding the foregoing, to the extent any new Subsidiary is created solely for the purpose of consummating a merger transaction pursuant to a Permitted Acquisition, and such new Subsidiary at no time holds any assets or liabilities other than any merger consideration contributed to it contemporaneously with the closing of such merger transaction, such new Subsidiary shall not be required to take the actions set forth in Section 8.14(a) or (b), as applicable, until the consummation of such Permitted Acquisition (at which time, the surviving entity of the respective merger transaction shall be required to so comply with Section 8.14(a) or (b), as applicable, within ten (10) Business Days of the consummation of such Permitted Acquisition, as such time period may be extended by the Administrative Agent in its sole discretion).

 

(e)                 Exclusions. The provisions of this Section 8.14 shall not apply to assets as to which the Administrative Agent and the Borrower shall reasonably determine that the costs and burdens of obtaining a security interest therein or perfection thereof outweigh the value of the security afforded thereby. Notwithstanding anything to the contrary in any Loan Document, (i) no action shall be required to perfect a security interest in letter of credit rights in addition to the filing of a UCC-1 financing statement so long as the maximum face amount of any such letter of credit is $5,000,000 or less individually, and of all such letters of credit is $20,000,000 or less in the aggregate, (ii) there shall be no requirement to obtain any leasehold mortgages or consents to assignments of claims under the Federal Assignment of Claims Act of 1940 (or any analogous state laws), (iii) there shall be no requirement to make any filings to perfect a security interest with respect to any patents, copyrights, and trademarks registered under the laws of any jurisdiction other than the United States or any state thereof, (iv) there shall be no requirement to deliver any Control Agreements with respect to any Deposit Accounts or Securities Accounts (other than in connection with the Cash Collateralization pursuant to the terms hereof), (v) no landlord or bailee waivers or collateral access agreements shall be required with regards to inventory or equipment leased, licensed or otherwise provided to customers and (vi) except as specified in clause (v) above, the Credit Parties shall be required to use commercially reasonable efforts to obtain landlord or bailee waivers or collateral access agreements only for any location at which the aggregate book value of the Credit Parties’ inventory exceeds 20% of all inventory of the Credit Parties at any one time; provided that this sentence shall not apply during the continuation of an Event of Default specified in Section 10.1(a), (b), (h) or (i) when, at any time and from time to time, the Administrative Agent may require in its sole discretion that any and all such actions are taken, obtained or made at its request.

 

SECTION 8.15      [Reserved].

 

SECTION 8.16      Post-Closing Matters. Notwithstanding anything to the contrary in this Agreement or in any other Loan Document, cause any and all actions set forth on Schedule 8.16 to the Disclosure Letter to be taken, and each document, certificate or other item set forth on such Schedule 8.16 to the Disclosure Letter to be delivered, in each case within the time period specified for such action or delivery on Schedule 8.16 to the Disclosure Letter (as such time period may be extended by the Administrative Agent in its sole discretion) and in form and substance satisfactory to the Administrative Agent.

 

SECTION 8.17      Further Assurances.

 

(a)                 Execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements and other documents) other than as set forth in Section 8.14(e) and the exceptions specified in the Collateral Agreement, which may be required under any Applicable Law, or which the Administrative Agent or the Required Lenders may reasonably request, to effectuate the transactions contemplated by the Loan Documents or to grant, preserve, protect or perfect the Liens created or intended to be created by the Security Documents or the validity or priority of any such Lien, all at the expense of the Credit Parties. The Borrower also agrees to provide to the Administrative Agent, from time to time upon the reasonable request by the Administrative Agent, evidence reasonably satisfactory to the Administrative Agent as to the perfection and priority of the Liens created or intended to be created by the Security Documents.

 

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(b)                 If requested by the Administrative Agent or any Lender (through the Administrative Agent), promptly furnish to the Administrative Agent and each Lender a statement in conformity with the requirements of FR Form G-3 or FR Form U-1, as applicable.

 

SECTION 8.18       Compliance with Anti-Corruption Laws and Sanctions. Maintain in effect and implement policies and procedures reasonably designed to promote and achieve compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions.

 

ARTICLE IX