AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit 10.4
EXECUTION VERSION
CERTAIN INFORMATION, IDENTIFIED BY, AND REPLACED WITH, A XXXX OF β[**]β HAS BEEN EXCLUDED FROM THIS DOCUMENT BECAUSE IT IS BOTH (I) NOT MATERIAL AND (II) IS THE TYPE THAT THE
REGISTRANT TREATS AS PRIVATE OR CONFIDENTIAL.
AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this βAmendmentβ) is entered into as of November 6, 2020 by and among GLOBAL ATLANTIC
FINANCIAL LIMITED (F/K/A COMMONWEALTH RE MIDCO LIMITED), a company incorporated and existing under the laws of Bermuda (βHoldingsβ), GLOBAL ATLANTIC (FIN)Β COMPANY, a Delaware corporation and a
wholly-owned subsidiary of Holdings (the βBorrowerβ), the Lenders party to this Amendment and ROYAL BANK OF CANADA, as administrative agent for the Lenders (the βAdministrative
Agentβ).
RECITALS:
A.Β Β Β Β Β Holdings, the Borrower, certain other subsidiaries of Holdings party thereto as Guarantors (collectively with Holdings, the βGuarantorsβ), the
Lenders party thereto, the Administrative Agent and the other agents and arrangers party thereto are parties to that certain Second Amended and Restated Credit Agreement, dated as of May 21, 2018 (as amended, supplemented, modified and waived
and as may be further amended, supplemented, modified or waived from time to time, the βCredit Agreementβ).Β Each capitalized term used but not defined herein has the meaning assigned to such term in the
Credit Agreement.
B.Β Β Β Β Β Β Holdings and the Borrower have requested that the Required Lenders agree to, among other things, amend the definition of βChange of Controlβ contained in the Credit Agreement as
provided for herein.
C.Β Β Β Β Β Β Subject to certain conditions, the Required Lenders are willing to agree to such amendments and certain other amendments relating to the Credit Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
SECTION 1.Β Β Β Β Β Β Β Amendments to Credit Agreement. Β Effective as of the Amendment Effective
Date (as defined below), the Credit Agreement (excluding the Schedules and Exhibits thereto) is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken
text) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text)
as set forth in the blackline attached as Exhibit A hereto.
SECTION 2.Β Β Β Β Β Representations and Warranties.Each Credit Party represents and warrants to the Administrative Agent and the Lenders
on behalf of itself and its Subsidiaries that after giving effect to this Amendment, on the Amendment Effective Date the following statements are true and correct:
(a)Β Β Β Β Β Β Β Β the execution, delivery and performance by such Credit Party of this Amendment, and the consummation of the transactions contemplated hereby, (a) are within such Credit Partyβs
corporate or other organizational powers, (b) have been duly authorized by all necessary corporate or other organizational action on the part of such Credit Party, (c) require no consent or approval of or action by or in respect of, or
registration or filing with, any Governmental Authority, except such as have been obtained or made and are in full force and effect, (d) do not
contravene the Organization Documents of such Credit Party, (e) do not result in any breach, violation or contravention of, or result in or require the creation of any Lien under, any Material Indebtedness to
which such Credit Party or any of its Subsidiaries is a party; or (f) violate any Requirement of Law or any order, injunction, writ or decree of any Governmental Authority to which such Credit Party or any of its Subsidiaries or its property is
subject, except to the extent that such violations, in the aggregate, could not reasonably be expected to have a Material Adverse Effect;
(b)Β Β Β Β Β Β Β Β this Amendment has been duly executed and delivered by such Credit Party and is the legal, valid and binding obligation of such Credit Party, enforceable against such Credit Party
in accordance with its terms, except as enforceability hereof may be limited by applicable bankruptcy, insolvency, or similar laws affecting the enforcement of creditorsβ rights generally or by equitable principals relating to enforceability;
(c)Β Β Β Β Β Β Β Β all of the representations and warranties contained in the Credit Agreement (other the representations and warranties contained in SectionsΒ 5.05 andΒ 5.11 of the Credit Agreement)
or in any Loan Document are true and correct in all material respects on and as of the Amendment Effective Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically
relate to an earlier date, in which case such representations and warranties were true and correct in all material respects on and as of such earlier date; provided that, in each case, such materiality qualifier shall not be applicable
to any representations and warranties that already are qualified or modified by materiality in the text thereof; and
(d)Β Β Β Β Β Β Β Β Β Β no Default or Event of Default has occurred and is continuing on the Amendment Effective Date.
SECTION 3.Β Β Β Conditions to Effectiveness of this Amendment.Β This Amendment shall become effective on the date that the
Administrative Agent shall have received counterparts of this Amendment executed by Holdings, the Borrower, the Lenders party to the Credit Agreement constituting the Required Lenders and the Administrative Agent (such date, the βAmendment Effective Dateβ).
SECTION 4.Β Β Β Β Β Acknowledgment and Consent.Β Each Credit Party hereby acknowledges that it has reviewed the terms and provisions of
this Amendment and consents to the amendments set forth herein.Β Each Credit Party hereby confirms that each Loan Document to which it is a party will continue to guarantee to the fullest extent possible in accordance with the Loan Documents
the payment and performance of all Obligations under each of the Loan Documents to which it is a party.Β Each Credit Party acknowledges and agrees that each of the Loan Documents to which it is a party shall continue in full force and effect
and that all of its obligations thereunder shall be valid and enforceable and shall not be impaired or limited by the execution or effectiveness of this Amendment.
SECTION 5.Β Β Β Β Β Β Miscellaneous.
-2-
(a)Β Β Β Β Β Β Β Β Β On and after the Amendment Effective Date, each reference in the Credit Agreement to βthis Agreementβ, βhereunderβ, βhereofβ, βhereinβ or words of like import referring to the
Credit Agreement, and each reference in the other Loan Documents to the βCredit Agreementβ, βthereunderβ, βthereofβ or words of like import referring to the Credit Agreement shall mean and be a reference to the Credit Agreement after giving
effect to this Amendment. This Amendment shall be deemed to be a Loan Document for all purposes.
(b)Β Β Β Β Β Β Β Β Β Except as specifically amended by this Amendment, the Credit Agreement and the other Loan Documents shall remain unchanged and in full force and effect and are hereby ratified and
confirmed.
(c)Β Β Β Β Β Β Β Β Β The execution, delivery and performance of this Amendment shall not constitute a waiver of any provision of, or operate as a waiver of any right, power or remedy of the
Administrative Agent or any Lender under, the Credit Agreement or any of the other Loan Documents, except as specifically provided herein.
(d)Β Β Β Β Β Β Β Β Β The provisions of this Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted by the Credit
Agreement.
(e)Β Β Β Β Β Β Β This Amendment may be executed in any number of separate counterparts, each of which, when so executed, shall be deemed an original, and all of said counterparts taken together
shall be deemed to constitute but one and the same instrument.
(f)Β Β Β Β Β Β Β Β Β Delivery of an executed counterpart of a signature page of this Amendment by telecopy, emailed pdf. or any other electronic means that reproduces an image of the actual executed
signature page shall be effective as delivery of a manually executed counterpart of this Amendment.Β The words βexecution,β βsigned,β βsignature,β βdelivery,β and words of like import in or relating to this Amendment and any other document to
be signed in connection with this Amendment and the transactions contemplated hereby shall be deemed to include Electronic Signatures, deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect,
validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, the Federal Electronic
Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act; provided that nothing herein shall require the
Administrative Agent to accept electronic signatures in any form or format without its prior written consent, provided that, the Administrative Agent hereby agrees to accept, and hereby consents to the use of, electronic signatures to
this Amendment from all parties hereto.
(g)Β Β Β Β Β Β Β Β Β If any provision of this Amendment is invalid, illegal or unenforceable in any jurisdiction then, to the fullest extent permitted by law, (i) such provision shall, as to such
jurisdiction, be ineffective to the extent (but only to the extent) of such invalidity, illegality or unenforceability, (ii) the other provisions of this Amendment shall remain in full force and effect in such jurisdiction and (iii) the
invalidity, illegality or unenforceability of any such provision in
-3-
any jurisdiction shall not affect the validity, legality or enforceability of such provision in any other jurisdiction.
(h)Β Β Β Β Β Β Β Β Β This Amendment shall be construed in accordance with and governed by the law of the State of New York.
(i)Β Β Β Β Β Β Β Β Β Β This Amendment, together with the Credit Agreement and the other Loan Documents, embodies the entire agreement and understanding among the parties with respect to the subject
matter hereof and thereof and supersedes all other prior or contemporaneous agreements and understandings of such Persons, verbal or written, relating to the subject matter hereof and thereof.
(j)Β Β Β Β Β Β Β Β Β Β The provisions of Section 1.02 (Other Interpretative Provisions) of the Credit Agreement are incorporated herein mutatis mutandis.
[Signature Pages Follow.]
-4-
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their proper and duly authorized officers as of the day and year first above written.
Β
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GLOBAL ATLANTIC FINANCIAL LIMITED |
Β
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(F/K/A COMMONWEALTH RE MIDCO
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Β
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LIMITED), as Holdings and a Guarantor
|
Β | Β | Β |
Β
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By: | /s/ Xxxx Xxxxxxxx |
Β
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Name: | Xxxx Xxxxxxxx |
Β
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Title: | Treasurer |
Β | Β |
Β
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GLOBAL ATLANTIC (FIN) COMPANY, as
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Β
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Borrower
|
Β
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Β
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By: | /s/ Xxxx Xxxxxxxx |
Β
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Name: | Xxxx Xxxxxxxx |
Β
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Title: | Treasurer |
Β | Β |
Β
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ROYAL BANK OF CANADA, |
Β
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as Administrative Agent |
Β
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Β
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By: |
Β
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Β
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Name: | |
Β
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Title: |
Β | Β |
Β
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ROYAL BANK OF CANADA, |
Β
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as a Lender
|
Β
|
Β
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By: |
Β
|
Β
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Name: | |
Β
|
Title: |
[Signature Page to Amendment to Second Amended and Restated Credit Agreemen]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their proper and duly authorized officers as of the day and year first above written.
Β | GLOBAL ATLANTIC FINANCIAL LIMITED |
Β
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(F/K/A COMMONWEALTH RE MIDCO |
Β
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LIMITED), as Holdings and a Guarantor
|
Β
|
Β
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By: |
Β
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Β
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Name: | |
Β
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Title: |
Β | Β |
Β | GLOBAL ATLANTIC (FIN) COMPANY, as |
Β
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Borrower |
Β
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Β
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By: |
Β
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Β
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Name: | |
Β
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Title: | |
Β | Β | Β |
Β | ROYAL BANK OF CANADA, |
Β
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as Administrative Agent |
Β
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Β
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By: |
/s/ Xxxxxx Xxxxx
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Β
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Name: | Xxxxxx Xxxxx |
Β
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Title: | Manager, Agency |
Β | Β | Β |
Β | ROYAL BANK OF CANADA, |
Β
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as a Lender |
Β
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Β
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By: |
Β
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Β
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Name: | |
Β
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Title: |
[Signature Page to Amendment to Second Amended and Restated Credit Agreement]
Β | ROYAL BANK OF CANADA, |
Β
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as a Lender |
Β
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Β
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By: |
/s/ Xxxxxx Skripnichenko |
Β
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Name: | Xxxxxx Skripnichenko |
Β
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Title: | Authorized Signatory |
Signature Page to Amendment to Second Amended and Restated Credit Agreement
Β | Associated Bank, |
Β
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as a Lender |
Β
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|
Β | By: |
Β | Β |
Β | /s/ Xxxxxx Xxxxxx |
Β
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Name: | Xxxxxx Xxxxxx |
Β
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Title: | Senior Vice President |
[Signature Page to Amendment to Second Amended and Restated Credit Agreement]
Β | Bank of America, N.A., |
Β
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as a Lender |
Β
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Β
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By: |
/s/ Xxxx Xxxxxxx
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Β
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Name: | Xxxx Xxxxxxx |
Β
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Title: | Vice President |
[Signature Page to Amendment to Second Amended and Restated Credit Agreement]
Β | THE BANK OF NOVA SCOTIA, |
Β
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as a Lender |
Β | Β |
Β
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By: |
/s/ Xxxxx Xxxx
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Β
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Name: |
Xxxxx Xxxx
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Β
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Title: | Director |
[Signature Page to Amendment to Second Amended and Restated Credit Agreement]
Β | BARCLAYS BANK PLC, |
Β
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as a Lender |
Β | Β |
Β
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By: |
/s/ Xxxx Xxxxxxxx
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Β
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Name: | Xxxx Xxxxxxxx |
Β
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Title: | Vice President |
[Signature Page to Amendment to Second Amended and Restated Credit Agreement]
Β |
BMO XXXXXX BANK N.A.,
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Β
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as a Lender |
Β | Β |
Β
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By: |
/s/ Xxxxxxxxx Xxxxxx
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Β
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Name: | Xxxxxxxxx Xxxxxx |
Β
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Title: | Managing Director |
[Signature Page to Amendment to Second Amended and Restated Credit Agreement]
Β | CITIBANK, N.A., |
Β
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as a Lender |
Β | Β |
Β
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By: |
/s/ Xxxxxxx XβXxxxxx
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Β
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Name: | Xxxxxxx XβXxxxxx |
Β
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Title: | Director |
[Signature Page to Amendment to Second Amended and Restated Credit Agreement]
Β | COMMERZBANK AG, NY BRANCH |
Β
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as a Lender |
Β | Β |
Β
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By: |
/s/ Xxxxxxx XxXxxxxx |
Β
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Name: | Xxxxxxx XxXxxxxx |
Β
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Title: |
Managing Director
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Β | Β | Β |
Β
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By: |
/s/ Xxxx X. Xxx
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Β
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Name: | Xxxx X. Xxx |
Β
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Title: | Vice President |
[Signature Page to Amendment to Second Amended and Restated Credit Agreement]
Β | CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, |
Β
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as a Lender |
Β | Β |
Β
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By: |
/s/ Xxxxxx Xxxx
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Β
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Name: | Xxxxxx Xxxx |
Β
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Title: | Authorized Signatory |
Β | Β | Β |
Β
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By: |
/s/ Xxxxxx Xxxxxxx
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Β
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Name: | Xxxxxx Xxxxxxx |
Β
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Title: | Authorized Signatory |
[Signature Page to Amendment to Second Amended and Restated Credit Agreement]
Β | Xxxxxxx Sachs Lending Partners LLC, |
Β
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as a Lender |
Β | Β |
Β
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By: |
/s/ Xxxxxx Xxxxx
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Β
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Name: | Xxxxxx Xxxxx |
Β
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Title: | Authorized Signatory |
[Signature Page to Amendment to Second Amended and Restated Credit Agreement]
Β | X X XXXXXX XXXXX BANK, NA |
Β
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as a Lender |
Β | Β |
Β
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By: |
/s/ Xxxxxx Xxxx Xxxxxxx |
Β
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Name: | Xxxxxx Xxxx Xxxxxxx |
Β
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Title: | Vice President |
[Signature Page to Amendment to Second Amended and Restated Credit Agreement]
Β | KEYBANK NATIONAL ASSOCIATION, |
Β
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as a Lender |
Β | Β |
Β
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By: |
/s/ Xxxxx X. Xxxxxxx
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Β
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Name: | Xxxxx X. Xxxxxxx |
Β
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Title: | Vice President |
[Signature Page to Amendment to Second Amended and Restated Credit Agreement]
Β | Xxxxxx Xxxxxxx Bank, N.A., |
Β
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as a Lender |
Β | Β |
Β
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By: |
/s/ Xxxxx Xxxxx
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Β
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Name: | Xxxxx Xxxxx |
Β
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Title: | Authorized Signatory |
[Signature Page to Amendment to Second Amended and Restated Credit Agreement]
Β |
U.S. BANK NATIONAL ASSOCIATION,
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Β
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as a Lender |
Β | Β |
Β
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By: |
/s/ Xxxxx Xxx |
Β
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Name: | Xxxxx Xxx |
Β
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Title: | Vice President |
[Signature Page to Amendment to Second Amended and Restated Credit Agreement]
Β | Xxxxx Fargo Bank, N.A., |
Β
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as a Lender |
Β | Β |
Β
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By: |
/s/ Will Xxxxx
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Β
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Name: | Will Xxxxx |
Β
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Title: | Managing Director |
[Signature Page to Amendment to Second Amended and Restated Credit Agreement]
EXECUTION VERSION
EXHIBIT A
AMENDMENTS REFLECTING FIRST AMENDMENT
ADDED TEXT SHOWN UNDERSCORED, DELETED TEXT SHOWN AS
STRIKETHROUGH
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of May 21, 2018
among
GLOBAL ATLANTIC FINANCIAL LIMITED
(F/K/A COMMONWEALTH RE MIDCO LIMITED),
as Holdings,
GLOBAL ATLANTIC (FIN) COMPANY,
as Borrower,
THE GUARANTORS PARTY HERETO,
as Guarantors,
ROYAL BANK OF CANADA,
as Administrative Agent,
and
THE LENDERS PARTY HERETO
RBC CAPITAL MARKETS,
U.S. BANK NATIONAL ASSOCIATION
and
XXXXX FARGO SECURITIES, LLC,
as Joint Lead Arrangers and Joint Bookrunners
ROYAL BANK OF CANADA,
U.S. BANK NATIONAL ASSOCIATION
and
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Syndication Agents
THE BANK OF NOVA SCOTIA,
BMO XXXXXX BANK N.A.
and
KEYBANK NATIONAL ASSOCIATION,
as Documentation Agents
TABLE OF CONTENTS
Page
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ARTICLE 1
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DEFINITIONS
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Section 1.01
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Certain Defined Terms
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Section 1.02
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Other Interpretive Provisions
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Section 1.03
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Classification of Loans
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Section 1.04
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Accounting Principles
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Section 1.05
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Divisions
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41
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ARTICLE 2
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THE CREDITS
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Section 2.01
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Revolving Loans
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Section 2.02
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Issuance of Letters of Credit
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Section 2.03
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Pro Rata Shares
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Section 2.04
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Conversion and Continuation of Revolving Loans
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Section 2.05
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Notes; Loan Accounts
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Section 2.06
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Prepayments
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Section 2.07
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Interest
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Section 2.08
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Fees
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Section 2.09
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Computation of Fees and Interest
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Section 2.10
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Payments Generally
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Section 2.11
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Sharing of Payments by Lenders
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Section 2.12
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Defaulting Lenders
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Section 2.13
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Maturity Extensions of Revolving Loans
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Section 2.14
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Provisions Relating to NAIC Approved Banks
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Section 2.15
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Incremental Facilities
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ARTICLE 3
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TAXES, YIELD PROTECTION AND ILLEGALITY
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Section 3.01
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Taxes
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Section 3.02
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Illegality
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Section 3.03
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Increased Costs and Reduction of Return
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73 |
Section 3.04
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Funding Losses
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Section 3.05
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Inability to Determine Rates
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75
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Section 3.06
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Certificates of Lenders
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76 |
Section 3.07
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Substitution of Lenders
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76
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Section 3.08
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Survival
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ARTICLE 4
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CONDITIONS PRECEDENT
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Section 4.01
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Conditions to Effectiveness
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i
Section 4.02
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Conditions to All Borrowings and Letter of Credit Issuances
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79
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Section 4.03
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Determinations Under Section 4.01
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ARTICLE 5
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REPRESENTATIONS AND WARRANTIES
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Section 5.01
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Corporate Existence and Power
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80 |
Section 5.02
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Corporate Authorization; No Contravention
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Section 5.03
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Governmental Authorization; Other Consents
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81
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Section 5.04
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Binding Effect
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Section 5.05
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Litigation
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Section 5.06
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No Default
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Section 5.07
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ERISA Compliance
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82 |
Section 5.08
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Margin Regulations
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83 |
Section 5.09
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Title to Properties
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83
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Section 5.10
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Taxes
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Section 5.11
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Financial Condition
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84
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Section 5.12
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Environmental Matters
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85
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Section 5.13
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Investment Company Act of 1940
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Section 5.14
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Subsidiaries
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86
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Section 5.15
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Insurance and Other Licenses
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Section 5.16
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Full Disclosure
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Section 5.17
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Solvency
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87
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Section 5.18
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Insurance
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Section 5.19
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Anti-Corruption Laws; OFAC; Anti-Terrorism Laws; XXXXXXX Xxx
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Section 5.20
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Surplus Debenture Interest and Dividends
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Section 5.21
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Use of Proceeds
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Section 5.22
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ARTICLE 6
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AFFIRMATIVE COVENANTS
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Section 6.01
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Financial Statements
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Section 6.02
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Certificates; Other Information
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91 |
Section 6.03
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Notices
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Section 6.04
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Preservation of Corporate Existence, Etc
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Section 6.05
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Insurance
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94
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Section 6.06
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Payment of Taxes and Claims
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94 |
Section 6.07
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Compliance with Laws
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Section 6.08
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Compliance with ERISA
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Section 6.09
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Inspection of Property and Books and Records
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95
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Section 6.10
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Information Regarding Collateralized L/C Collateral
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Section 6.11
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Use of Proceeds
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Section 6.12
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Additional Guarantors
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Section 6.13
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Further Assurances
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96
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Section 6.14
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Designation of Subsidiaries
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96 |
Section 6.15
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Maintenance of Properties
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ii
Section 6.16
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Lender Meetings
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Section 6.17
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Environmental
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ARTICLE 7
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NEGATIVE COVENANTS
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Section 7.01
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Limitation on Certain Indebtedness
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98 |
Section 7.02
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Liens
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Section 7.03
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Disposition of Assets
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100
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Section 7.04
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Sales and Lease Backs
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Section 7.05
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Transactions with Affiliates
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Section 7.06
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Change in Business
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104 |
Section 7.07
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Fundamental Changes
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Section 7.08
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Restricted Payments
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Section 7.09
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Prepayment of Certain Indebtedness; Modifications of Certain Agreements; Synthetic Purchase Agreements
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105 |
Section 7.10
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Debt to Total Capitalization Ratio
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Section 7.11
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Holdings Net Worth
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Section 7.12
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Non-Contravention of OFAC
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Section 7.13
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Restrictive Agreements
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Section 7.14
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Holding Company Activities
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108 |
Section 7.15
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Changes in Accounting Policies; Fiscal Year
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ARTICLE 8
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EVENTS OF DEFAULT
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Section 8.01
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Events of Default
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Section 8.02
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Remedies
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111 |
Section 8.03
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Rights Not Exclusive
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Β | ||
ARTICLE 9
|
||
THE AGENTS
|
||
Β | ||
Section 9.01
|
Appointment and Authority
|
112 |
Section 9.02
|
Rights as a Lender
|
112 |
Section 9.03
|
Exculpatory Provisions
|
|
Section 9.04
|
Reliance by Administrative Agent
|
113 |
Section 9.05
|
Delegation of Duties
|
|
Section 9.06
|
Resignation of Administrative Agent
|
|
Section 9.07
|
Non-Reliance on Administrative Agent and Other Lenders
|
|
Section 9.08
|
No Other Duties; Other Agents; Etc
|
|
Section 9.09
|
Administrative Agent May File Proofs of Claim
|
115
|
Section 9.10
|
Collateral and Guarantee Matters
|
|
Section 9.11
|
Indemnification of Agent-Related Persons
|
116 |
Section 9.12
|
Withholding Tax
|
|
Section 9.13
|
Certain ERISA Matters
|
|
iii
ARTICLE 10
|
||
MISCELLANEOUS
|
||
Β | ||
Section 10.01
|
Amendments and Waivers
|
|
Section 10.02
|
Notices
|
|
Section 10.03
|
No Waiver; Cumulative Remedies
|
|
Section 10.04
|
Costs and Expenses
|
124
|
Section 10.05
|
Borrower Indemnification; Damage Waiver
|
|
Section 10.06
|
Marshaling; Payments Set Aside
|
126
|
Section 10.07
|
Assignments, Successors, Participations, Etc
|
126 |
Section 10.08
|
Confidentiality
|
129
|
Section 10.09
|
Set-off
|
130 |
Section 10.10
|
Notification of Addresses, Lending Offices, Etc
|
131
|
Section 10.11
|
Effectiveness; Counterparts
|
131
|
Section 10.12
|
Survival of Representations and Warranties
|
|
Section 10.13
|
Severability
|
|
Section 10.14
|
Replacement of Defaulting Lenders and Non-Consenting Lenders
|
|
Section 10.15
|
Governing Law; Jurisdiction; Consent to Service of Process
|
|
Section 10.16
|
Waiver of Jury Trial
|
134 |
Section 10.17
|
PATRIOT Act Notice
|
|
Section 10.18
|
Entire Agreement
|
|
Section 10.19
|
Independence of Covenants
|
134
|
Section 10.20
|
Obligations Several; Independent Nature of Lenders Right
|
135
|
Section 10.21
|
No Fiduciary Duty
|
|
Section 10.22
|
Judgment Currency
|
|
Section 10.23
|
Existing Credit Agreement Amended and Restated; Consents to Amendments to Existing Loan Documents; Restatement Effective Date Assignments
|
|
Section 10.24
|
Acknowledgment and Consent to Bail-In of
|
|
Section 10.25
|
Acknowledgement Regarding Any Supported QFCs
|
137 |
APPENDICES
|
Β |
Β | Β |
Appendix A
|
Revolving Commitments
|
Appendix B
|
Collateralized L/C Collateral Rates
|
Β | Β |
SCHEDULES
|
Β |
Β | Β |
Schedule 4.01(l)
|
Organizational Chart
|
Schedule 5.05
|
Litigation
|
Schedule 5.14(a)
|
Capital Stock
|
Schedule 5.14(b)
|
Subsidiaries
|
Schedule 7.02
|
Existing Liens
|
Schedule 7.13
|
Restrictive Agreements
|
iv
Schedule 10.02
|
Addresses for Notices
|
EXHIBITS
|
Β |
Β | Β |
Exhibit A
|
Form of Compliance Certificate
|
Exhibit B
|
Form of Revolving Loan Note
|
Exhibit Cβ1
|
Form of Loan Notice
|
Exhibit Cβ2
|
Form of Issuance Notice
|
Exhibit Cβ3
|
Form of Continuation/Conversion Notice
|
Exhibit D
|
Form of Assignment and Assumption
|
Exhibit E-1
|
Form of Guarantee Agreement
|
Exhibit E-2
|
Form of Collateralized L/C Security and Control Agreement
|
Exhibit X-0
|
Xxxxxx Xxxxxx Tax Compliance Certificate (For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)
|
Exhibit X-0
|
Xxxxxx Xxxxxx Tax Compliance Certificate (For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)
|
Exhibit X-0
|
Xxxxxx Xxxxxx Tax Compliance Certificate (For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)
|
Exhibit X-0
|
Xxxxxx Xxxxxx Tax Compliance Certificate (For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)
|
Exhibit G-1
|
Form of Opinion of Sidley Austin LLP
|
Exhibit G-2
|
Form of Opinion of Xxxxxxx (Bermuda) Limited
|
Exhibit H
|
Form of Solvency Certificate
|
Exhibit I
|
Intercompany Subordination Provisions
|
Exhibit J
|
Form of Prepayment Notice
|
Exhibit K
|
Form of Collateralized L/C Collateral Certificate
|
Exhibit L
|
Form of Joinder Agreement
|
v
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
This SECOND AMENDED AND RESTATED CREDIT AGREEMENT is entered into as of May 21, 2018 by and among GLOBAL ATLANTIC FINANCIAL LIMITED (F/K/A COMMONWEALTH RE MIDCO LIMITED), a company incorporated and existing under the laws of Bermuda (βCwA MidCoGAFLβ), GLOBAL ATLANTIC (FIN) COMPANY, a Delaware corporation and a wholly-owned subsidiary of
Holdings (the βBorrowerβ), certain other subsidiaries of Holdings from time to time as Guarantors hereunder, the lenders from time to time party to this
Agreement (collectively, the βLendersβ; individually, each, a βLenderβ), ROYAL BANK OF CANADA, as administrative agent for the Lenders (the βAdministrativeΒ Agentβ) and the other agents and arrangers party hereto.
RECITALS:
WHEREAS, CwA MidCoGAFL, the Borrower, the lenders party thereto (the βExisting Credit Agreement Lendersβ) and the Administrative Agent are parties to the
Amended and Restated Credit Agreement, dated as of December 7, 2016 (as in effect immediately prior to the effectiveness of this Agreement, the βExisting Credit Agreementβ);
WHEREAS, the Credit Parties, the Lenders (including the Continuing Existing Credit Agreement Lenders) and the Administrative Agent desire to amend and restate the Existing Credit Agreement in its
entirety to, among other things, (a) increase the aggregate amount of the revolving credit facility from $650,000,000 to $1,000,000,000, (b) extend the scheduled commitment termination date of the revolving credit facility and (c) make other
amendments and other modifications to the Existing Credit Agreement;
WHEREAS, as of the Restatement Effective Date, (i) the aggregate outstanding principal amount of the Revolving Loans is $405,000,000 and (ii) the aggregate Letter of Credit Usage in respect of all
Letters of Credit is zero;
WHEREAS, the Borrower intends to use the proceeds of the revolving credit facility for working capital and general corporate purposes of Holdings and the Subsidiaries;
WHEREAS, the Guarantor party to this Agreement on the Restatement Effective Date is willing to continue to guarantee the obligations of the Borrower, as provided in the Guarantee Agreement; and
NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants contained herein, the parties agree as follows:
Definitions
1
βAdministrative Agentβ has the meaning specified in the introduction to this Agreement, and includes its successors and permitted assigns in such capacity.
βAdministrative Agentβs Officeβ means the Administrative Agentβs address and, as appropriate, account as set forth on Schedule 10.02 or such other
address or account as the Administrative Agent may from time to time specify.
βAffected Financial Institutionβ means (a) any EEA Financial Institution or (b) any UK Financial Institution.
βAffected Financial Institutionβ means (a) any EEA Financial Institution or (b) any UK Financial Institution.
βAffiliateβ means, as to any Person, any other Person that, directly or indirectly, is in control of, is controlled by or is under common control with, such
Person.Β A Person shall be deemed to control another Person if the controlling Person possesses, directly or indirectly, the power (a) to vote 10% or more of the securities (on a fully diluted basis) having ordinary voting power for the election of
directors or managing general partners of the other Person or (b) to direct or cause the direction of the management and policies of the other Person, whether through the ownership of voting securities, membership interests, by contract or otherwise.
βAgent-Related Personsβ means the initial Administrative Agent and any successor Administrative Agent, in each case
together with their respective Affiliates, and the officers, directors, employees, agents and attorneys-in-fact of such Persons and Affiliates.
βAgentsβ means the Administrative Agent, the Arrangers, the Bookrunners, the Syndication Agents and the Documentation Agents.
βAgentsβ means the Administrative Agent, the Arrangers, the Bookrunners, the Syndication Agents and the Documentation Agents.
βAgreementβ means this Second Amended and Restated Credit Agreement, as amended, restated, modified or supplemented from time to time in accordance with the
terms hereof.
βA.M. Bestβ means A.M. Best Company.
βAnnual Statementβ means the annual statutory financial statement of any Insurance Subsidiary required to be filed with the insurance commissioner (or similar
authority) of its jurisdiction of incorporation, which statement shall be in the form required by such Insurance Subsidiaryβs jurisdiction of incorporation or, if no specific form is so required, in the form of financial statements permitted by such
insurance commissioner (or such similar authority) to be used for filing annual statutory financial statements and shall contain the type of information permitted or required by such insurance commissioner (or such similar authority) to be disclosed
therein, together with all exhibits or schedules filed therewith.
βAnti-Corruption Lawsβ means any and all laws, judgments, orders, executive orders, decrees, ordinances, rules,
regulations, statutes, case law or treaties related to corruption or bribery and including the Foreign Corrupt Practices Act (15 U.S.C. §§ 78dd-1, et seq.).
βAnti-Money Laundering Lawsβ means any and all laws, judgments, orders, executive orders, decrees, ordinances, rules,
regulations, statutes, case law or treaties related to terrorism
2
financing or money laundering including any applicable provision of the PATRIOT Act (as defined below) and The Currency and Foreign Transactions Reporting Act (also known as the βBank Secrecy Actβ, 31 U.S.C. §§
5311-5330 and 12 U.S.C. §§ 1818(s), 1820(b) and 1951-1959).
βApplicable Marginβ, βApplicable Revolving Commitment Fee Percentageβ and βApplicable
Non-Collateralized Letter of Credit Feeβ mean a percentage, per annum, determined by reference to the Debt Ratings in effect from time to time, as set forth in the table below:
Pricing
Level
|
Debt Ratings
S&P / Xxxxxβx /
Fitch
|
Applicable
Non-
Collateralized
Letter of
Credit Fee
|
Applicable
Margin for
Base Rate
Loans
|
Applicable
Margin for
Eurodollar
Rate Loans
|
Applicable
Revolving
Commitment
Fee
Percentage
|
1
|
β₯ A-/A3/A-
|
[**]%
|
[**]%
|
1.125%
|
0.15%
|
2
|
BBB+/Baa1/BBB+
|
[**]%
|
[**]%
|
[**]%
|
[**]%
|
3
|
BBB/Baa2/BBB
|
[**]%
|
[**]%
|
[**]%
|
[**]%
|
4
|
BBB-/Baa3/BBB-
|
[**]%
|
[**]%
|
[**]%
|
[**]%
|
5
|
β€ BB+/Ba1/BB+
|
[**]%
|
[**]%
|
2.00%
|
0.35%
|
Initially, the Applicable Margin, Applicable Revolving Commitment Fee Percentage and Applicable Non-Collateralized Letter of Credit Fee shall be set at Pricing Level 3.Β No change in the Applicable
Margin, Applicable Revolving Commitment Fee Percentage or Applicable Non-Collateralized Letter of Credit Fee shall be effective until one (1) Business Day after the date of the public announcement of a change in any of the Debt Ratings.Β Within one
(1) Business Day of the date of the public announcement of a change in any of the Debt Ratings, the Administrative Agent shall give the Borrower and each Lender notice of the Applicable Margin, the Applicable Revolving Commitment Fee Percentage and
the Applicable Non-Collateralized Letter of Credit Fee in effect from such date.
βApplicable Reserve Requirementβ means, at any time, for any determination of the Eurodollar Rate, the maximum rate, expressed as a decimal, at which reserves
(including any basic marginal, special, supplemental, emergency or other reserves) are required to be maintained with respect thereto against βEurocurrency liabilitiesβ (as such term is defined in Regulation D of the FRB) under regulations issued
from time to time by the FRB or other applicable banking regulator.Β Without limiting the effect of the foregoing, the Applicable Reserve Requirement shall reflect any other reserves required to be maintained by such member banks with respect to (i)
any category of liabilities which includes deposits by reference to which the applicable Eurodollar Rate is to be determined, or (ii) any category of extensions of credit or other assets which include Eurodollar Rate Loans.Β A Loan bearing interest
at an interest rate based on the Eurodollar Rate shall be deemed to constitute Eurocurrency liabilities and as such shall be deemed subject to reserve requirements without benefits of credit for proration,
[**] = Certain information contained in this document, marked by β[**]β has been excluded because it is both (i) not material
and (ii) is the type that the registrant treats as private or confidential.
3
exceptions or offsets that may be available from time to time to the applicable Lender.Β The rate of interest on a Loan bearing interest at an interest rate based on the Eurodollar Rate shall be adjusted automatically
on and as of the effective date of any change in the Applicable Reserve Requirement.
βApproved Electronic Communicationsβ means any notice, demand, communication, information, document or other material that any of Holdings or any of its
Subsidiaries provides to the Administrative Agent pursuant to any Loan Document or the transactions contemplated therein, which is distributed to the Administrative Agent or Lenders by means of electronic communications pursuant to Section
10.02(b).
βApproved Fundβ 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.
βArrangersβ means, collectively, RBCCM, US Bank and WFS.
βAssignment and Assumptionβ means an assignment and assumption entered into by a Lender and an Eligible Assignee substantially in the form of Exhibit D
or in another form reasonably acceptable to the Administrative Agent.
βAttorney Costsβ means and includes all reasonable fees, expenses and disbursements of any law firm or other external legal counsel.
βBail-In Actionβ 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.
βBail-In Legislationβ 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).
βBank of Nova Scotiaβ means The Bank of Nova Scotia.
βBankruptcy Codeβ means Title 11 of the United States Code entitled βBankruptcy,β as now and hereafter in effect, or any successor statute.
βBase Rateβ means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus 1/2 of 1%, (b) the rate of interest per annum determined by the Administrative Agent from time to time as its prime commercial lending rate for Dollar loans in the
United States for such day, and (c) the Eurodollar Rate for an Interest Period of one month beginning on such day (or if such day is not a Business Day, the Business Day immediately
4
preceding such day) plus 1.00% per annum; provided that, if such rate per annum is less than zero, the Base Rate will be deemed to be zero for purposes of this Agreement.
βBase Rate Loanβ means a Revolving Loan that bears interest based on the Base Rate.
βBeneficial Ownership Certificationβ means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.
βBeneficial Ownership Regulationβ means 31 C.F.R. Β§ 1010.230.
βBenefit Planβ means any of (a) an βemployee benefit planβ (as defined in ERISA) that is subject to Title I of ERISA, (b) a βplanβ as defined in Section 4975
of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such βemployee benefit planβ or βplanβ.
βBMOβ means BMO Xxxxxx Bank N.A.
βBookrunnersβ means, collectively, RBCCM, US Bank and WFS.
βBorrowerβ has the meaning specified in the introduction to this Agreement.
βBorrower Materialsβ has the meaning specified in Section 6.02.
βBorrowing Dateβ means the date of a Credit Extension (other than a conversion or continuation of a Loan).
βBusiness Dayβ means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the laws of, or are in fact
closed in, the state where the Administrative Agentβs Office is located or New York City and, if such day relates to any Eurodollar Rate Loan, means any such day on which dealings in Dollar deposits are conducted by and between banks in the London
interbank eurodollar market.
βCapital Adequacy Regulationβ means any guideline, request or directive of any central bank or other Governmental Authority, or any other law, rule or
regulation, whether or not having the force of law, in each case, regarding capital adequacy or liquidity of any bank or of any corporation controlling a bank.
βCapital and Surplusβ means, as to any Insurance Subsidiary, as of any date, the total amount shown on (i) line 38, page 3, column 1 and (ii) line 24.1, page 3
(or such other line on which the equivalent information is provided on any other such Annual Statement) of the Annual Statement of such Insurance Subsidiary as of such date, or an amount determined in a consistent manner for any date other than one
as of which an Annual Statement is prepared.
βCapital Stockβ means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all
equivalent ownership interests in a Person (other than a corporation), including partnership interests and membership interests, and any and all warrants, rights or options to purchase any of the foregoing; provided
that, for the
5
avoidance of doubt, Capital Stock shall not be deemed to include debt convertible or exchangeable for any of the foregoing.
βCapitalized Lease Liabilitiesβ means, with respect to any Person, all monetary obligations of such Person under any leasing or similar arrangement that, in
accordance with GAAP, would be classified as a capitalized lease, provided that, for purposes of this Agreement, the amount of such obligations shall be the capitalized amount thereof, determined in
accordance with GAAP, and the stated maturity thereof shall be the date of the last payment of rent or any other amount due under such lease prior to the first date upon which such lease may be terminated by the lessee without payment of a penalty.Β
For purposes of this definition, whenever in this Agreement it is necessary to determine whether a lease is a capital lease or an operating lease, such determination shall be made on the basis of GAAP as in effect on January 1, 2015.
βCashβ means Dollars and any overnight or other investment money market funds of the Custodian with which a Collateralized L/C Collateral Account is maintained
(or an Affiliate of such Custodian).
βCash Collateralizeβ means, in respect of an Obligation, to provide and pledge (as a first priority perfected security interest) cash collateral in Dollars, at
a location and pursuant to documentation in form and substance satisfactory to the Administrative Agent (and βCash Collateralizationβ and βCash Collateralizedβ have
corresponding meanings).Β βCash Collateralβ shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.
βCash Equivalentsβ means (a) marketable direct obligations issued by, or unconditionally guaranteed by, the United States government or issued by any agency
thereof and backed by the full faith and credit of the United States, in each case maturing within one year from the date of acquisition; (b) certificates of deposit, time deposits, eurodollar time deposits or overnight bank deposits having
maturities of twelve months or less from the date of acquisition issued by any commercial bank organized under the laws of the United States or any state thereof having combined capital and surplus of not less than $500,000,000 and a short-term
deposit rating of at least Aβ1 by S&P and P-l by Xxxxxβx, or carrying an equivalent rating by a nationally recognized rating agency, if both of the two named rating agencies cease publishing ratings of commercial paper issuers generally; (c)
commercial paper of an issuer rated at least Aβ2 by S&P and P-2 by Xxxxxβx at the time of acquisition thereof, or carrying an equivalent rating by a nationally recognized rating agency, if both of the two named rating agencies cease publishing
ratings of commercial paper issuers generally, and maturing within nine months from the date of acquisition; (d) repurchase obligations of any Lender or of any commercial bank satisfying the requirements of clause (b) of this definition,
having a term of not more than thirty (30) days, with respect to securities issued or fully guaranteed or insured by the United States government; (e) securities with maturities of one year or less from the date of acquisition issued or fully
guaranteed by any state, commonwealth or territory of the United States, by any political subdivision or taxing authority of any such state, commonwealth or territory or by any foreign government, the securities of which state, commonwealth,
territory, political subdivision, taxing authority or foreign government (as the case may be) are rated at least A by S&P and A2 by Xxxxxβx; (f) securities with maturities of one year or less from the date of acquisition backed by standby letters
of credit issued by any Lender or any commercial bank satisfying the
6
requirements of clause (b) of this definition; or (g) shares of money market mutual or similar funds that invest exclusively in assets satisfying the requirements of clauses (a) through (f) of
this definition.
βCash Management Obligationsβ means obligations owed in respect of any overdraft and related liabilities arising from treasury, depository and cash management
services or any automated clearing house transfers of funds or in respect of any credit card or similar services.
βCBOsβ means notes or other instruments (other than CMOs) secured by collateral consisting primarily of debt securities and/or other types of debt obligations,
including loans.
βCERCLAβ means the Comprehensive Environmental Response, Compensation, and Liability Act of 1980.
βChange of Controlβ means (a) any acquisition, directly or indirectly, by any person or group (as such
terms are used in Sections 13(d) and 14(d) of the Exchange Act) of beneficial ownership (within the meaning of Rule 13d-3 of the SEC under the Exchange Act) of 35% or more on a fully diluted basis of the outstanding shares of Voting Stock of (i)
prior to the IPO, CwA MidCo (other than the direct beneficial ownership of GAFL of additional Voting Stock of CwA MidCo), or (ii) from and after the IPO, the IPO Entity; (b) any person or group (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) shall obtain, directly or
indirectly, the power (whether or not exercised) to elect a majority of the members of the board of directors (or similar governing body) of (i)
prior to the IPO, CwA MidCo (other than additional direct power of GAFL
to elect a majority of the members of the board of directors (or similar governing body) of CwA MidCo), or (ii) from and after the IPO, the IPO Entity (other than additional direct power of GAFL to elect a majority of the members of the board of directors (or similar governing body) of CwA MidCo); (c)(i)
prior to the IPO, Parent or GAFL shall cease to beneficially own and
control, directly or indirectly, at least 50.1% on a fully diluted basis of the outstanding shares of Voting Stock of CwA MidCo or
(ii) Holdings shall cease to beneficially own and control, directly or indirectly, 100% on a fully diluted basis of the outstanding shares of Voting Stock of the Borrower; or (d) the occurrence of a βchange of controlβ (howsoever defined) in
any instrument governing any Indebtedness of Holdings or its Restricted Subsidiaries with an aggregate outstanding amount in excess of $75,000,000 that constitutes an βevent of defaultβ under such other debt instrument or would constitute an
βevent of defaultβ after notice or passage of time under such other debt instrument. Subject to the foregoing, thei) prior to the consummation of the Mergers, a PreβMerger Change of
Control, and (ii) from and after the consummation of the Mergers, a Post-Merger Change of Control; provided that, if the Mergers are not consummated on or prior to the Merger Outside Date, then clause (ii) above shall not apply and βChange of Controlβ shall mean, at all times, a Pre-Merger
Change of Control. For the avoidance of doubt, (A) the IPO will not constitute a Change of Control., (B) on or prior to the
Merger Outside Date, the Mergers will not constitute a Change of Control and (C) from and after the consummation of the Mergers, no change in ownership or control of KKR Management LLP, or indirect change in ownership or control of KKR solely
as a result of a change in ultimate ownership or control of KKR Management LLP, is or will constitute a Change of Control.
7
βClassβ means (i) with respect to Lenders, Lenders having Revolving Exposure, and (ii) with respect to Loans, Revolving Loans.Β Until the consummation of an
Extension pursuant to Section 2.13, there will be only one Class hereunder.
βCMOsβ means notes or other instruments secured by collateral consisting primarily of mortgages, mortgage-backed securities and/or other types of
mortgage-related obligations.
βCodeβ means the Internal Revenue Code of 1986, and regulations promulgated thereunder.
βCollateralized L/C Aggregate Collateral Amountβ means, subject to the immediately succeeding paragraph, the sum of the Collateralized L/C Collateral Amounts
of all Cash and Eligible Securities that are held in Collateralized L/C Collateral Accounts and subject to a first priority perfected security interest in favor of the Administrative Agent securing the Obligations with respect to Collateralized
Letters of Credit.
Notwithstanding the foregoing, (a) if the aggregate fair market value of Eligible Securities of any single corporate issuer (or any Affiliate thereof) that are held in Collateralized L/C Collateral
Accounts represents more than 10% of the aggregate fair market value of all Cash and Eligible Securities that are held in Collateralized L/C Collateral Accounts, the excess over 10% will be excluded from the Collateralized L/C Aggregate Collateral
Amount, (b) the weighted average rating of all Agency Securities (as described in Appendix B) constituting Eligible Securities and held in Collateralized L/C Collateral Accounts must at all times be at least (i) AA+ from S&P or (ii) Aa1
from Xxxxxβx, (c) if the aggregate fair market value of Asset-Backed Securities (as described in Appendix B) (including CMBS) held in Collateralized L/C Collateral Accounts represents more than 20% of the aggregate value of all Cash and
Eligible Securities held in Collateralized L/C Collateral Accounts, the excess over 20% will be excluded from the Collateralized L/C Aggregate Collateral Amount, (d) if the aggregate fair value of Asset-Backed Securities constituting CMBS held in
Collateralized L/C Collateral Accounts represents more than 10% of the aggregate value of all Cash and Eligible Securities held in Collateralized L/C Collateral Accounts, the excess over 10% will be excluded from the Collateralized L/C Aggregate
Collateral Amount, (e) if the aggregate value of OECD Government Securities (as described in Appendix B) held in Collateralized L/C Collateral Accounts represents more than 20% of the aggregate value of all Cash and Eligible Securities held
in Collateralized L/C Collateral Accounts, the excess over 20% will be excluded from the Collateralized L/C Aggregate Collateral Amount, and (f) if the aggregate value of Supranational Securities (as described in Appendix B) held in
Collateralized L/C Collateral Accounts represents more than 20% of the aggregate value of all Cash and Eligible Securities held in Collateralized L/C Collateral Accounts, the excess over 20% will be excluded from the Collateralized L/C Aggregate
Collateral Amount.Β For the avoidance of doubt, (x) any Cash or Eligible Securities that are not held in Collateralized L/C Collateral Accounts or subject to a first priority perfected security interest in favor of the Administrative Agent securing
the Obligations with respect to Collateralized Letters of Credit or (y) any Eligible Securities for which an ISIN has not been issued, in each case, will not be included in the Collateralized L/C Aggregate Collateral Amount.
8
βCollateralized L/CΒ Collateralβ means, collectively, all property of whatever kind and nature subject or purported to
be subject from time to time to a Lien under any Collateralized L/C Security Document.
βCollateralized L/C Collateral Accountβ means any deposit account or securities account maintained by the Borrower with a Custodian in respect of which a
Collateralized L/C Security and Control Agreement is in effect.
βCollateralized L/C Collateral Amountβ means, at any time, with respect to Cash or any category of Eligible Securities, the product of (a)(i) the amount of
such Cash or (ii) the fair market value of such Eligible Securities, in each case, that is held in a Collateralized L/C Collateral Account at such time and subject to a first priority perfected security interest in favor of the Administrative Agent
securing the Obligations with respect to Collateralized Letters of Credit, multiplied by (b) the Collateralized L/C Collateral Rate therefor, in each case, determined as of the close of business on the
immediately preceding Business Day.Β The fair market value of Eligible Securities will be determined by reference to a generally recognized source selected by the applicable Custodian (or the most recent bid quotation from such source).Β With respect
to any Eligible Securities having a fair market value denominated in a currency other than Dollars, the Dollar equivalent thereof (using a method selected by the applicable Custodian) will be used for purposes of determining the value of such
Eligible Securities.
βCollateralized L/C Collateral Certificateβ means a certificate substantially in the form of Exhibit K executed by a Responsible Officer of the
Borrower.
βCollateralized L/C Collateral Deficiencyβ has the meaning specified in Section 2.02(l)(vi).
βCollateralized L/C Collateral Deficiency Correction Dateβ has the meaning specified in Section 2.02(l)(vi).
βCollateralized L/C Collateral Rateβ means, for Cash or any category of obligation or investment specified in Appendix B in the column entitled βCash
and Eligible Securitiesβ (other than Cash, the βEligible Securitiesβ), the percentage set forth opposite such category of Cash or Eligible Securities in Appendix B in the column entitled βCollateralized
L/C Collateral Rateβ and, in each case, subject to the term to maturity criteria set forth therein.
βCollateralized L/C Collateral Requirementβ means the requirement that:
(a)Β Β Β Β Β Β Β Β the Administrative Agent shall have received a counterpart to a Collateralized L/C Security and Control Agreement with
respect to each Collateralized L/C Collateral Account, duly executed and delivered by the Borrower and the Custodian with which such Collateralized L/C Collateral Account is maintained;
(b)Β Β Β Β Β Β Β Β all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably
requested by the Administrative Agent to be filed, registered or recorded to create the Liens intended to be created by the Collateralized L/C Security Documents and perfect or record such Liens to the extent, and with the priority, required
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by the Collateralized L/C Security Documents, shall have been filed, registered or recorded or delivered to the Administrative Agent for filing, registration or recording;
(c)Β Β Β Β Β Β Β the Borrower shall have obtained all consents and approvals required to be obtained by it in connection with the execution and
delivery of all Collateralized L/C Security Documents to which it is a party, the performance of its obligations thereunder and the granting of the Liens granted by it thereunder; and
(d)Β Β Β Β Β Β Β Β the Borrower shall have taken all other action required under the Collateralized L/C Security Documents to perfect, register
and/or record the Liens granted by it thereunder.
βCollateralized L/C Disbursementβ means a payment made by a Lender pursuant to a Collateralized Letter of Credit.
βCollateralized L/C Liensβ means the Liens granted or to be granted by the Borrower under the Collateralized L/C Security Documents.
βCollateralized L/C Security and Control Agreementβ means, with respect to any Collateralized L/C Collateral Account, a Security and Control Agreement
substantially in the form of Exhibit E-2 and duly executed and delivered by the Administrative Agent, the Borrower and the Custodian with which such Collateralized L/C Collateral Account is maintained.
βCollateralized L/C Security Documentsβ means the Collateralized L/C Security and Control Agreements and each other security agreement, instrument or document
executed and delivered pursuant thereto or pursuant to Section 2.02(l) or Section 6.13, to secure any of the Secured Obligations (as defined in the Collateralized L/C Security and Control Agreements).
βCollateralized L/C Security Invalidityβ means, at any time, (a) any provision of any Collateralized L/C Security Document, at any time after its execution and
delivery and for any reason other than as expressly permitted hereunder or thereunder or satisfaction in full of all Obligations, shall cease to be in full force and effect or (b) any Lien purported to be created under any Collateralized L/C Security
Document that is required to be in effect at such time (in accordance with the Collateralized L/C Collateral Requirement) shall cease to be, or shall be asserted by any Credit Party or any Restricted Subsidiary of Holdings not to be, a valid and
perfected Lien on any Collateralized L/C Collateral covered thereby, with the priority required by the applicable Collateralized L/C Security Document (except as a result of the Administrative Agentβs failure to maintain possession of any stock
certificates, promissory notes or other documents or possessory collateral delivered to it under any Collateralized L/C Security Document).
βCollateralized L/C True-Up Amountβ means, as of any date of determination, with respect to each Letter of Credit that
is a Collateralized Letter of Credit, an amount equal to the difference between (a) the total letter of credit fees referred to in Section 2.08(a)(ii) that would have accrued in respect of such Letter of Credit (if such Letter of Credit was a
Non-Collateralized Letter of Credit) from the date of issuance thereof to such date and (b) the total letter of credit fees referred to in Section 2.08(a)(iii) that have accrued in respect of such Letter of Credit from the date of issuance
thereof to such date.
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βCollateralized Letter of Creditβ means a Letter of Credit the Obligations with respect to which are secured by a first priority perfected security interest in
favor of the Administrative Agent in all Cash and Eligible Securities that are held in the Collateralized L/C Collateral Accounts.
βCollateralized Letter of Credit Feeβ means [**]% per annum.
βCollateralized Letter of Credit Usageβ means, as at any date of determination, the sum of (i) the maximum aggregate amount which is, or at any time thereafter
may become, available for drawing under all Collateralized Letters of Credit then outstanding plus (ii) the aggregate amount of all Collateralized L/C Disbursements made by the Lenders and not theretofore
reimbursed by or on behalf of the Borrower.
βCommitment Termination Dateβ means the earliest to occur of (i) the fifth anniversary of the Restatement Effective Date, (ii) the date the Revolving
Commitments are permanently reduced to zero pursuant to Section 2.06, and (iii) the date of the termination of the Revolving Commitments pursuant to Section 8.02.
βCompensation Periodβ has the meaning specified in Section 2.10(c)(ii).
βCompliance Certificateβ means a certificate substantially in the form of Exhibit A executed by a Responsible Officer of Holdings.
βConfirming Bankβ means, as provided in Section 2.14 with respect to any Non-NAIC Approved Bank, any Person (including any Lender) that is an NAIC
Approved Bank and that has agreed in a written agreement to confirm Letters of Credit with respect to which such Non-NAIC Approved Bank is an issuer, which agreement shall be in form and substance reasonably satisfactory to the Administrative Agent
(such an agreement, a βConfirming Bank Agreementβ).
βConnection Income Taxesβ means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or
branch profits Taxes.
βConsolidated Total Assetsβ means, with respect to any Person, the total assets which would appear on a consolidated balance sheet of such Person and its
Restricted Subsidiaries, determined on a consolidated basis in accordance with GAAP.
βContingent Obligationβ means, without duplication, any agreement, undertaking or arrangement by which any Person guarantees, endorses or otherwise becomes or
is contingently liable upon (by direct or indirect agreement, contingent or otherwise, to provide funds for payment, to supply funds to, or otherwise to invest in, a debtor, or otherwise to assure a creditor against loss) the debt, obligation or
other liability of any other Person (other than by endorsements of instruments in the course of collection or indemnities or other similar obligations under contracts entered into in the ordinary course of business and not in respect of Indebtedness
or the issuance of Capital Stock), or guarantees the payment of dividends or other distributions upon the shares of any other Person; provided that the obligations of any Person under or in connection with
insurance policies, under or in connection with Reinsurance
[**] = Certain information contained in this document, marked by β[**]β has been excluded because it is both (i) not material
and (ii) is the type that the registrant treats as private or confidential.
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Agreements, or in connection with Investments of Insurance Subsidiaries or Subsidiaries of Insurance Subsidiaries permitted by the applicable Department shall not be deemed Contingent Obligations of such Person.Β The
amount of any Contingent Obligation of any Person shall (subject to any limitation set forth therein) be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such
Contingent Obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by such Person in good faith.
βContinuing Existing Credit Agreement Lenderβ means an Existing Credit Agreement Lender that has elected to continue as a Lender under this Agreement.Β Each of
the Existing Credit Agreement Lenders immediately prior to the effectiveness of this Agreement is a Continuing Existing Credit Agreement Lender.
βContractual Obligationβ means, as to any Person, any provision of any security issued by such Person or of any agreement, undertaking, contract, indenture,
mortgage, deed of trust or other instrument, document or agreement to which such Person is a party or by which it or any of its property is bound.
βConversion/Continuation Noticeβ means a notice of conversion or continuation of a Revolving Loan substantially in the form of Exhibit Cβ3.
βCovered Partyβ has the meaning specified in Section 10.25.
βCredit Extensionβ means (a) the making, conversion or continuation of a Loan or (b) the issuance, renewal or extension of a Letter of Credit.
βCredit Partiesβ means the Borrower and the Guarantors.
βCustodianβ means (a) US Bank and (b) any other bank or financial institution that is (i)(A) with respect to any deposit account, a βbankβ within the meaning
of Section 9-102(a)(8) of the Uniform Commercial Code, and (B) with respect to any securities account, a βsecurities intermediaryβ within the meaning of Section 8-102(a)(14) of the Uniform Commercial Code, (ii) located in the United States of America
and (iii) satisfactory to the Administrative Agent.
βCwAβ means Commonwealth Annuity and Life Insurance Company, a Massachusetts life insurance company.
βDebt Ratingsβ means, as of any date of determination, the public long-term issuer credit ratings as determined by at least two of S&P, Xxxxxβx and Fitch
of any Credit PartyΝΎ provided that (a) if more than one Credit Party has Debt Ratings, then the Debt Ratings of the Credit Party with the highest Debt Rating shall apply, (b) if the respective Debt Ratings of
the applicable Credit Party issued by the foregoing rating agencies differ by one level, then the Pricing Level for the higher of such Debt Ratings shall apply (with the Debt Ratings for Pricing Level 1 being the highest and the Debt Ratings for
Pricing Level 5 being the lowest), (c) if there is a split in
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Debt Ratings of the applicable Credit Party of more than one level, then the Pricing Level that is one Pricing Level higher than the Pricing Level of the lower Debt Rating shall apply.
βDebt to Total Capitalization Ratioβ means, as of any date of determination, without duplication, the ratio of (a) the principal amount of, and accrued but
unpaid interest on, all consolidated Indebtedness (other than Operating Indebtedness, Indebtedness in respect of undrawn letters of credit, Non-Recourse Insurance Subsidiary Indebtedness or Intercompany Indebtedness) of any Person and its Restricted
Subsidiaries outstanding on such date to (b) Total Capitalization of such Person and its Restricted Subsidiaries on such date.
βDebtor Relief Lawsβ means the Bankruptcy Code, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally, including state insurance
insolvency laws.
βDefaultβ means any event or circumstance that constitutes an Event of Default or that, with the giving of notice, the lapse of time, or both, would (if not
cured or otherwise remedied during such time) constitute an Event of Default.
βDefaulting Lenderβ means, subject to Section 2.12(b), any Lender that (a) has failed to (i) fund all or any portion of its Revolving Loans within two
(2) Business Days of the date such Revolving Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lenderβs determination that one or more
conditions precedent to funding (which conditions precedent, together with the applicable default, if any, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent or any other Lender any other
amount required to be paid by it hereunder within two (2) Business Days of the date when due, (b) has notified the Borrower or the Administrative Agent 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 Lendersβ obligation to fund a Loan hereunder and states that such position is based on such Lenderβs determination that a condition precedent to funding (which
condition precedent, together with the applicable default, if any, 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 or 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), (d) the Administrative Agent has received notification that such Lender is, or has a direct or indirect parent company that
is (i) insolvent, or is generally unable to pay its debts as they become due, or admits in writing its inability to pay its debts as they become due, or makes a general assignment for the benefit of its creditors or (ii) the subject of a bankruptcy,
insolvency, reorganization, liquidation or similar proceeding, or a receiver, trustee, conservator, intervenor or sequestrator or the like has been appointed for such Lender or its direct or indirect parent company, or such Lender or its direct or
indirect parent company has taken any action in furtherance of or indicating its consent to or acquiescence in any such proceeding or appointment, (e) ceases to be a NAIC Approved Bank and has failed to comply with its
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obligations under Section 2.14, or (f) is subject of any Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or
acquisition of any Capital Stock in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts
within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made
with such Lender.
βDepartmentβ means, with respect to any Insurance Subsidiary, the Governmental Authority of such Insurance Subsidiaryβs state or other jurisdiction of domicile
with which such Insurance Subsidiary is required to file its Annual Statement.
βDesignated Subsidiaryβ means (a) the Borrower, (b) each Restricted Subsidiary of Holdings that directly or indirectly owns any Capital Stock of the Borrower
and (c) each Restricted Subsidiary of Holdings (other than an Insurance Subsidiary) that directly or indirectly owns any Capital Stock of any Insurance Subsidiary (including any such Restricted Subsidiary of Holdings that is itself owned by an
Insurance Subsidiary) that (i) as of the Restatement Effective Date, has incurred, created, assumed, suffered to exist, guarantied or at any time become directly or indirectly liable with respect to, any Indebtedness in an aggregate principal amount
exceeding $25,000,000 (other than Intercompany Indebtedness), or (ii) after the Restatement Effective Date, incurs, creates, assumes, suffers to exist, guaranties or at any time becomes directly or indirectly liable with respect to, any Indebtedness
in an aggregate principal amount exceeding $25,000,000 (other than Intercompany Indebtedness).Β Nothing contained in this definition shall be deemed to limit the ability of any Guarantor (other than Holdings) to merge, consolidate, amalgamate or sell
all or substantially all of its assets in accordance with Section 7.07.
βDispositionβ means the sale, assignment, leasing, transfer, contribution, conveyance, or other disposal of, any of a Personβs assets (other than cash)
(including a sale and leaseback transaction and, in the case of any Restricted Subsidiary, the issuance or sale of its Capital Stock).Β The terms βDispose ofβ and βDisposed ofβ
shall have correlative meaning.
βDisqualified Lenderβ means (i) certain insurance companies that have been identified in writing by CwA MidCoGAFL to the Arrangers on or prior to May 21, 2018 and (ii) certain additional insurance companies or insurance company holding
companies that have become competitors or clients of the Borrower or any Guarantor or any of their Subsidiaries after May 21, 2018 identified in writing by Holdings to the Arrangers and the Administrative Agent, provided
that any Person (x) that is a Lender or that enters into a binding agreement to assume rights and obligations under this Agreement or (y) that is a Participant or that enters into a binding agreement to purchase a participation in all or a portion of
a Lenderβs rights and/or obligations under this Agreement and, in the case of either clause (x) or (y), subsequently becomes a Disqualified Lender (but was not a Disqualified Lender on the Restatement Effective Date or at the time it became a Lender
or a Participant or entered into an agreement of such type, as applicable) shall be deemed to not be a Disqualified Lender hereunder.Β The list of Disqualified Lenders shall be made available to all Lenders by posting such list to IntraLinks or
another similar electronic system.
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βDocumentation Agentsβ means, collectively, Bank of Nova Scotia, BMO and Xxxxx Fargo and their respective successors and assigns in such capacity.
βDollars,β βdollarsβ and β$β each mean lawful money of the United States.
βEconomic Sanctions Lawsβ means any and all laws, judgments, orders, executive orders, decrees, ordinances, rules, regulations, statutes, case law or treaties
relating to economic sanctions and terrorism financing, including any applicable provisions of each of the Trading with the Enemy Act (50 U.S.C. App. §§ 5(b) and 16, as amended), the International Emergency Economic Powers Act (50 U.S.C. §§
1701-1706, as amended) and Executive Order 13224 (effective September 24, 2001), as amended.
βEEA Financial Institutionβ 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.
βEEA Member Countryβ means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
βEEA Resolution Authorityβ 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.
βElectronic Signatureβ means an electronic sound, symbol or process attached to, or associated with, a contract or other record and adopted by a Person with
the intent to sign, authenticate or accept such contract or record.
βEligible Assigneeβ means (a) a Lender; (b) an Affiliate of a Lender; (c) an Approved Fund; and (d) any other Person (other than a Natural Person) approved by
(i) the Administrative Agent and (ii) unless an Event of Default under Section 8.01(a), (f) or (g) has occurred and is continuing, the Borrower (each such approval not to be unreasonably withheld or delayed); provided that (x) notwithstanding the foregoing, βEligible Assigneeβ shall not include Holdings, the Borrower or any of its Affiliates (other than Xxxxxxx Xxxxx & Co. LLC and any lending affiliates thereof, but excluding Holdings and its Subsidiaries) or any Disqualified Lender, (y) each Eligible Assignee must be a NAIC Approved Bank and (z) the
Borrower shall be deemed to have approved an assignee unless it shall object thereto by written notice to the Administrative Agent within fifteen (15) Business Days after having received notice thereof.
βEligible Securitiesβ has the meaning set forth in the definition of βCollateralized L/C Collateral Rateβ.
βEmbargoed Personβ means any Person that (i) is publicly identified on the most current list of βSpecially Designated Nationals and Blocked Personsβ published
by the United States Treasuryβs Office of Foreign Assets Control (βOFACβ), the U.S. Department of State, the United Nations Security Council, the European Union, Her Majestyβs Treasury or other relevant
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sanctions authority, or is located, resides, is organized or chartered or has a place of business in a country, region or territory subject to sanctions administered or enforced from time to time by the U.S.
government, including those administered by OFAC, the U.S. Department of State, the United Nations Security Council, the European Union, Her Majestyβs Treasury or other relevant sanctions authority or (ii) is publicly identified as prohibited from
doing business with the United States under the International Emergency Economic Powers Act, the Trading With the Enemy Act or any other Requirement of Law.
βEngagement Letterβ means that certain engagement letter, dated as of April 17, 2018, by and among the Borrower, RBC, RBCCM, Xxxxx Fargo, WFS and US Bank, as
amended, restated, supplemented or otherwise modified from time to time.
βEntitled Personβ has the meaning set forth in Section 10.22(b).
βEnvironmentβ means ambient air, indoor air, surface water, groundwater, drinking water, soil, surface and subsurface strata, and natural resources such as
wetlands, flora and fauna.
βEnvironmental Claimsβ means all written claims, complaints or notices, by any Governmental Authority or other Person alleging potential liability or
responsibility for violation of any Environmental Law, or for release or injury to the Environment or threat to public health, personal injury (including sickness, disease or death), property damage, natural resources damage, or otherwise alleging
liability or responsibility for damages (punitive or otherwise), cleanup, removal, remedial or response costs, restitution, civil or criminal penalties, injunctive relief or other type of relief, resulting from or based upon the presence, placement,
or Release (including intentional or unintentional, negligent or non-negligent, sudden or non-sudden or accidental or non-accidental placement, spills, leaks, discharges, emissions or releases) of any Hazardous Material at, in, under or from
property, whether or not owned by Holdings or any of its Restricted Subsidiaries, excluding, in any case, liabilities or claims arising under any insurance contract or policy, reinsurance agreement or retrocession agreement relating to any of the
foregoing where Holdings or any of its Restricted Subsidiaries is the insurer.
βEnvironmental Lawsβ means all Requirements of Law relating to pollution or protection of the Environment, health and safety.
βEnvironmental Liabilityβ means any liability, contingent or otherwise (including any liability for damages, costs of remediation, fines, penalties or
indemnities), of Holdings, any other Credit Party or any of their respective Subsidiaries directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage or
treatment of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the Release or threatened Release of any Hazardous Materials or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or
imposed with respect to any of the foregoing.
βERISAβ means the Employee Retirement Income Security Act of 1974 and the regulations promulgated thereunder.
βERISA Affiliateβ means any trade or business (whether or not incorporated) under common control with Holdings or any of its Subsidiaries within the meaning of
Section 414(b)
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or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).
βERISA Eventβ means (a) a Reportable Event with respect to a Single Employer Pension Plan; (b) with respect to any Single Employer Pension Plan, the failure to
satisfy the minimum funding standard under Sections 412 or 430 of the Code and Sections 302 or 303 of ERISA, whether or not waived, the failure to make by its due date a required installment under Section 430(j) of the Code or Section 303 of ERISA
with respect to any Single Employer Pension Plan or the failure to make a required contribution to a Multiemployer Plan; (c) a withdrawal by Holdings, any of its Subsidiaries or any ERISA Affiliate from a Single Employer Pension Plan subject to
Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations which is treated as such a withdrawal under Section 4062(e) of ERISA; (d) a complete or partial
withdrawal by Holdings, any of its Subsidiaries or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is insolvent; (e) the filing of a notice of intent to terminate, the treatment of a plan amendment as a
termination under Section 4041 or 4041A of ERISA or the commencement of proceedings by the PBGC to terminate a Single Employer Pension Plan or Multiemployer Plan; (f) an event or condition that could reasonably be expected to constitute grounds under
Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Single Employer Pension Plan or Multiemployer Plan; (g) the imposition of any liability under Title IV of ERISA, other than required plan contributions
and PBGC premiums due but not delinquent under Section 4007 of ERISA, upon Holdings, any of its Subsidiaries or any ERISA Affiliate; (h) the engagement by Holdings, any of its Subsidiaries or any ERISA Affiliate in a transaction that could be subject
to Section 4069 or Section 4212(c) of ERISA; (i) a Multiemployer Plan is determined to be in βcriticalβ or βendangeredβ status under Section 432 of the Code or Section 305 of ERISA, or, with respect to any Single Employer Pension Plan, a
determination that it is βat riskβ under Section 430 of the Code or Section 303 of ERISA; or (j) the imposition of a Lien under Section 430(k) of the Code or Section 303(k) or 4068 of ERISA.
βEU Bail-In Legislation Scheduleβ means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect
from time to time.
βEurodollar Rateβ means for any Interest Period with respect to a Eurodollar Rate Loan:Β the rate per annum obtained
by dividing (i) (a) the rate per annum equal to the rate determined by the Administrative Agent to be the London interbank offered rate administered by the ICE Benchmark Administration (or any other person
which takes over the administration of that rate) for deposits (for delivery on the first day of such period) with a term equivalent to such period in Dollars displayed on page LIBOR 01 of the Reuters Screen (or any replacement Reuters page which
displays that rate) or on the appropriate page of such other information service which publishes that rate from time to time in place of Reuters, determined as of approximately 11:00 a.m. (London, England time) on such Interest Rate Determination
Date, or (b) in the event the rate referenced in the preceding clause (a) is not available, the rate per annum determined by the Administrative Agent as the rate of interest equal to the offered
quotation rate to major banks in the offshore Dollar market at their request by the Administrative Agentβs London Branch for deposits (for delivery on the first day of the relevant period) in Dollars of amounts in same day
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funds comparable to the principal amount of the Revolving Loan, for which the Eurodollar Rate is then being determined with maturities comparable to such period as of approximately 11:00 a.m. (London, England time) on
such Interest Rate Determination Date, by (ii) an amount equal to (a) one minus (b) the Applicable Reserve Requirement; provided that, if such rate per annum is less than zero, the Eurodollar Rate will be deemed to be zero for purposes of this Agreement.
βEurodollar Rate Loanβ means a Revolving Loan that bears interest at a rate based on the Eurodollar Rate.
βEvent of Defaultβ has the meaning specified in Section 8.01.
βExchange Actβ means the Securities Exchange Act of 1934 and the regulations promulgated thereunder.
βExcluded Taxesβ means, with respect to the Administrative Agent, any Lender or any other recipient of any payment to be made by or on account of any
obligation of any Credit Party under any Loan Document, (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 (other than an assignee pursuant to a request by the Borrower under Section 3.07 or 10.14) (i) any United States federal withholding Tax that is imposed on amounts payable to such Lender under any laws in effect at the time
such Lender becomes a party hereto (or designates a new lending office), except to the extent that such Lender (or its assignor, if any) was entitled, immediately prior to the time of designation of a new lending office (or assignment), to receive
additional amounts from the Borrower with respect to such withholding Tax pursuant to Section 3.01(a) or (ii) any Tax that is attributable to such Lenderβs failure to comply with Section 3.01(e) and (c) any United States federal
withholding Tax that is imposed pursuant to FATCA.
βExisting Credit Agreementβ has the meaning specified in the recitals.
βExisting Credit Agreement Lendersβ has the meaning specified in the recitals.
βExisting Credit Agreement Revolving Commitmentβ means a Revolving Commitment (as defined in the Existing Credit Agreement).Β The amount of the aggregate
Existing Credit Agreement Revolving Commitments of all Continuing Existing Credit Agreement Lenders immediately prior to the effectiveness of this Agreement is $650,000,000.
βExisting Revolving Commitmentsβ has the meaning specified in Section 2.13(c)(ii).
βExisting Revolving Loansβ has the meaning specified in Section 2.13(c)(ii).
βExtended Revolving Commitmentsβ has the meaning specified in Section 2.13(c)(ii).
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βExtended Revolving Loansβ has the meaning specified in Section 2.13(c)(ii).
βExtended Termination Dateβ has the meaning specified in Section 2.13(a).
βExtensionβ has the meaning specified in Section 2.13(a).
βExtension Amendmentβ has the meaning specified in Section 2.13(f).
βExtension Offerβ has the meaning specified in Section 2.13(a).
βFacilityβ means, collectively, the Revolving Loans and Revolving Commitments therefor.
βFATCAβ means current Sections 1471 through 1474 of the Code and any amended or successor version that is substantively comparable and not materially more
onerous to comply with (including any United States Treasury Regulations or other official administrative guidance promulgated thereunder), any agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory
legislation, rules or official practices adopted pursuant to any published intergovernmental agreement entered into in connection with the implementation of such sections of the Code.
βFederal Funds Rateβ means, for any day, the greater of (i) the rate calculated by the Federal Reserve Bank of New York based on such dayβs Federal funds
transactions by depositary institutions (as determined in such manner as the Federal Reserve Bank of New York shall set forth on its public website from time to time) and published on the next succeeding Business Day by the Federal Reserve Bank of
New York as the Federal funds effective rate and (ii) 0%; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole
multiple of 1/100 of 1%) charged to the Administrative Agent on such day on such transactions as determined by the Administrative Agent.
βFee Letterβ means any fee letter agreement entered into pursuant to Section 2.08(d).
βFiscal Quarterβ means any fiscal quarter of a Fiscal Year.
βFiscal Yearβ means any period of twelve consecutive calendar months ending on December 31.
βFitchβ means Fitch Ratings Limited, together with any Person succeeding thereto by merger, consolidation or acquisition of all or substantially all of its
assets, including substantially all of its business of rating securities.
βForeign Lenderβ means any Lender that is not a βUnited States Personβ within the meaning of Section 7701(a)(30) of the Code.
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βForeign Subsidiaryβ means a Subsidiary (which may be a corporation, limited liability company, partnership or other legal entity) organized under the laws of
a jurisdiction outside the United States.
βFRBβ means the Board of Governors of the Federal Reserve System and any Governmental Authority succeeding to any of its principal functions.
βFundβ means any Person (other than a Natural Person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans
and similar extensions of credit in the ordinary course of its business.
βGA Bermudaβ means Global Atlantic Re Limited, a Bermuda exempted company registered under the Bermuda Insurance Xxx 0000 as a Class 3A and long-term Class C
insurer.
βGAAPβ means generally accepted accounting principles set forth from time to time 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 agencies with similar functions of comparable stature and authority within the U.S. accounting profession), that are
applicable to the circumstances as of the date of determination.
βGAFGLβ means Global Atlantic Financial Group Limited, a company incorporated and existing under the laws of Bermuda.
βGAFLβ has the meaning specified in the introduction to this Agreement.
βGAFLGAFLLβ means Global Atlantic Financial Life Limited, a
company incorporated and existing under the laws of Bermuda.
βGovernmental Actβ means any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority.
βGovernmental Authorityβ means any nation or government, any state or other political subdivision thereof, any central bank (or similar monetary or regulatory
authority) thereof, any entity exercising executive, legislative, judicial or regulatory functions of or pertaining to government, including any board of insurance, insurance department or insurance commissioner.
βGuaranteeβ has the meaning specified in the Guarantee Agreement.
βGuarantee Agreementβ means the Second Amended and
Restated Guarantee Agreement, dated as of the Restatement Effective Date, among the Guarantors and the Administrative Agent, substantially in the form of Exhibit E-1.
βGuarantee Requirementβ means the requirement that the Administrative Agent shall have received from Holdings, the Borrower and each other Designated
Subsidiary either (a) a counterpart to this Agreement and the Guarantee Agreement, duly executed and delivered on behalf of such Person, or (b) in the case of any Person that becomes a Designated Subsidiary after the Restatement Effective Date, a
supplement to this Agreement and the Guarantee
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Agreement, in the form specified in the Guarantee Agreement or otherwise reasonably acceptable to the Administrative Agent, duly executed and delivered on behalf of such Designated Subsidiary.
βGuaranteed Obligationsβ has the meaning specified in the Guarantee Agreement.
βGuaranteed Partiesβ has the meaning specified in the Guarantee Agreement.
βGuaranteed Swap Contractβ means any Swap Contract entered into by a Credit Party with any Person that, at the time such Swap Contract is entered into, is the
Administrative Agent, any Arranger, any Bookrunner or any Lender (or an Affiliate of the Administrative Agent, any Arranger, any Bookrunner or any Lender) to hedge interest rate risk of such Credit Party with respect to the Facility.
βGuarantorsβ means each of Holdings and each other Designated Subsidiary that is a party to the Guarantee Agreement.Β Nothing contained in this definition
shall be deemed to limit the ability of any Guarantor (other than Holdings) to merge, consolidate, amalgamate or sell all or substantially all of its assets in accordance with Section 7.07.
βHazardous Materialβ means:Β (a) any βhazardous substance,β as defined by CERCLA; (b) any βhazardous waste,β as defined by the Resource Conservation and
Recovery Act; (c) petroleum and any petroleum product; or (d) any other pollutant, contaminant, chemical, material, waste or substance in any form that is subject to regulation or, as to which, liability or standards of conduct can be imposed under
any Environmental Law.
βHistorical Financial Statementsβ means, as of the Restatement Effective Date, the audited consolidated balance sheets and the related consolidated statements
of income, stockholdersβ equity and cash flows of Holdings for the Fiscal Years ended December 31, 2016 and December 31, 2017.
βHistorical Statutory Statementsβ has the meaning specified in Section 5.11(b).
βHoldingsβ
means (a) prior to the IPO, CwA MidCoGAFL, and (b) upon and after the IPO, the IPO Entity.
βHybrid Securitiesβ means, at any time, trust preferred securities, deferrable interest subordinated debt securities, mandatory convertible debt or other
hybrid securities issued by the Borrower or any Restricted Subsidiary that is accorded at least some equity treatment by S&P or Xxxxxβx at the time of issuance thereof.
βIncrease Amountβ means, at any time, the amount equal to (a) $150,000,000 less (b) the aggregate amount of all New Revolving Commitments effected at
or prior to such time.Β On the Restatement Effective Date, the Increase Amount is $150,000,000.
βIncreased Amount Dateβ has the meaning specified in Section 2.15(a).
βIncreasing Lenderβ means (a) a Continuing Existing Credit Agreement Lender (i) whose Existing Credit Agreement Revolving Commitment immediately prior to the
effectiveness
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of this Agreement (as a percentage of the aggregate Existing Credit Agreement Revolving Commitments of all Continuing Existing Credit Agreement Lenders immediately prior to the effectiveness of this Agreement), was
less than (ii) its Revolving Commitment upon the effectiveness of this Agreement (as a percentage of the aggregate Revolving Commitments of all Lenders upon the effectiveness of this Agreement) and (b) each New Revolving Lender.
βIndebtednessβ means, with respect to any Person, without duplication:Β (a) all indebtedness of such Person for borrowed money or in respect of loans or
advances; (b) all indebtedness of such Person evidenced by bonds, debentures, notes or other similar instruments; (c) all indebtedness in respect of letters of credit, whether or not drawn, and bankersβ acceptances and letters of guaranty issued for
the account or upon the application or request of such Person; (d) all Capitalized Lease Liabilities of such Person; (e) the liabilities (if any) of such Person in respect of Swap Contracts as determined by reference to the Swap Termination Value
thereof; (f) all obligations of such Person to pay the deferred purchase price of property or services that are included as liabilities in accordance with GAAP (other than accrued expenses incurred and trade accounts payable in each case in the
ordinary course of business) and all obligations secured by a Lien on property owned or being purchased by such Person, but only to the extent of the lesser of the obligations secured or the value of the property to which such Lien is attached
(including obligations arising under conditional sales or other title retention agreements); (g) any obligations of a partnership of the kind referred to in clauses (a) through (f) above or clause (h) or (i) below in
which such Person is a general partner; (h) solely for purposes of Section 7.10, all obligations in respect of Hybrid Securities (other than Hybrid Securities (or the greatest portion thereof) that are treated as equity by S&P or Xxxxxβx)
of such Person; and (i) all Contingent Obligations of such Person in connection with Indebtedness or obligations of others of the kinds referred to in clauses (a) through (h) above; provided,
that obligations under the Tax Benefit Payment Agreement shall not constitute Indebtedness.
βIndemnified Liabilitiesβ has the meaning specified in Section 10.05(a).
βIndemnified Personsβ has the meaning specified in Section 10.05(a).
βIndemnified Taxesβ means (a) Taxes, other than Excluded Taxes imposed on or with respect to any payment made by or on account of any obligation of the
Borrower under any Loan Document, and (b) to the extent not otherwise described in clause (a) of this definition, Other Taxes.
βInsolvency Proceedingβ means, with respect to any Person, (a) any case, action or proceeding with respect to such Person before any court or other
Governmental Authority relating to bankruptcy, reorganization, insolvency, liquidation, conservation, rehabilitation, receivership, dissolution, winding-up or relief of debtors or (b) any general assignment for the benefit of creditors, composition,
marshaling of assets for creditors or other similar arrangement in respect of its creditors generally or any substantial portion of its creditors, in any case, undertaken under U.S. Federal, state or foreign law, including Title 11 of the United
States Code.
βInsurance Investmentsβ means Investments by an Insurance Subsidiary or any Subsidiary of an Insurance Subsidiary for its investment portfolio (other than such
Personβs Investments in its Restricted Subsidiaries engaged in insurance lines of business) in the ordinary
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course of business consistent with the policies and procedures approved by the board of directors or the investment committee (or other applicable committee) of such Insurance Subsidiary or any Subsidiary of an
Insurance Subsidiary.
βInsurance Subsidiaryβ means any Subsidiary of Holdings that is or is required to be licensed as an insurer or reinsurer.
βIntercompany Indebtednessβ means Indebtedness owed by Holdings or a Restricted Subsidiary to Holdings or a Restricted Subsidiary; provided that all such Indebtedness of any Credit Party owed to any Restricted Subsidiary that is not a Credit Party is unsecured and subject to the Intercompany Subordination Provisions.
βIntercompany Subordination Provisionsβ means the terms and conditions set forth on Exhibit I.
βInterest Payment Dateβ means (a) with respect to any Base Rate Loan, the last Business Day of each calendar quarter and (b) with respect to any Eurodollar
Rate Loan, the last day of each Interest Period applicable to the Credit Extension of which such Revolving Loan is a part; provided that if any Interest Period for a Eurodollar Rate Loan exceeds three months,
the date that falls three months after the beginning of such Interest Period and after each Interest Payment Date thereafter is also an Interest Payment Date (but in each case, subject to the definition of βInterest Periodβ).
βInterest Periodβ means, with respect to any Eurodollar Rate Loan, the period beginning on the date of the applicable Credit Extension and ending on the
numerically corresponding day in the calendar month that is one, two, three or six months thereafter, as the Borrower may elect; provided that:
(a)Β Β Β Β Β Β if any Interest Period would otherwise end on a day that is not a Business Day, that Interest Period shall be extended to the
following Business Day unless the result of such extension would be to carry such Interest Period into another calendar month, in which event such Interest Period shall end on the preceding Business Day;
(b)Β Β Β Β Β Β any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period) shall, subject to clause (c) of this definition, end on the last Business Day of the calendar month at the end of such Interest Period; and
(c)Β Β Β Β Β Β Β no Interest Period with respect to any portion of any Class of Revolving Loans shall extend beyond such Classβs Commitment
Termination Date.
For purposes hereof, the date of a Credit Extension initially shall be the date on which such Credit Extension is made and thereafter shall be the effective date of the most recent continuation of
such Credit Extension.
βInterest Rate Determination Dateβ means, with respect to any Interest Period, the date that is two (2) Business Days prior to the first day of such Interest
Period.
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βInterest Typeβ means, when used with respect to any Revolving Loan, whether the rate of interest on such Revolving Loan is determined by reference to the
Eurodollar Rate or the Base Rate.
βInvestmentβ means any advance, loan, extension of credit (by way of guaranty or otherwise) or capital contribution to, or purchase (including purchases
financed with equity) of any Capital Stock, bonds, notes, obligations, debentures or other debt securities of, or any other investment in, any Person.
βIPOβ means the consummation of the initial public offering
of common Capital Stock in (a) CwA MidCoGAFL
or (b) any Person (i) that is a Wholly-Owned Subsidiary of CwA MidCoGAFL immediately prior to the IPO and (ii) of which (A) the Borrower, (B) CwA, (C) GA Bermuda, (D) each Person that is an Insurance Subsidiary of CwA MidCoGAFL immediately prior to the IPO and (E) each Person that, immediately prior to the IPO, is a Subsidiary of CwA
MidCoGAFL that directly or indirectly owns any Capital Stock of any Insurance Subsidiary
of CwA MidCoGAFL (including each such
Subsidiary that is itself owned by an Insurance Subsidiary of CwA MidCoGAFL), in the case of each of clauses (A) through (E), is a Wholly-Owned Subsidiary (CwA MidCoGAFL or such Person, as the case may be, the βIPO Entityβ),
in each case pursuant to an effective registration statement filed with the SEC pursuant to the Securities Act.
Β
βIRSβ means the Internal Revenue Service or any Governmental Authority succeeding to any of its principal functions under the Code.
βIssuance Noticeβ means a notice substantially in the form of Exhibit Cβ2.
βJoinder Agreementβ means an agreement substantially in the form of Exhibit L.
βJudgment Currencyβ has the meaning set forth in Section 10.22(b).
βKeyBankβ means KeyBank National Association.
βKKRβ means KKR & Co. Inc.
βKnowledgeβ means with respect to any Person the actual knowledge of the facts, circumstances or condition by a Responsible Officer, including the chief
financial officer, president, chief executive officer, treasurer, senior vice president or vice president involved in negotiating the Transactions of such Person.
βLatest Maturity Dateβ means, at any date of determination, the latest maturity or expiration date applicable to any Revolving Loan or Revolving Commitment
hereunder at such time, including the latest maturity or expiration date of any Extended Revolving Commitments or Extended Revolving Loans, in each case as extended in accordance with this Agreement from time to time.
βL/C Disbursementβ means a payment made by a Lender pursuant to a Letter of Credit.
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βL/C Exposureβ means at any time the sum of (a) the aggregate undrawn amount of all outstanding Letters of Credit at such time and (b) the aggregate amount of
all payments or disbursements made by the Lenders pursuant to a Letter of Credit that have not yet been reimbursed by or on behalf of the Borrower at such time.Β The L/C Exposure of any Revolving Lender at any time shall equal its Pro Rata Share of
the aggregate L/C Exposure at such time.
βLendersβ has the meaning specified in the introduction to this Agreement and includes any other Person that shall have become a party hereto pursuant to an
Assignment and Assumption in accordance with Section 10.07, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption.Β As the context requires, the term βLendersβ includes each Limited Fronting
Lender and each Participating Lender.
βLending Officeβ means, as to any Lender, the office or offices of such Lender specified as its βLending Officeβ or βDomestic Lending Officeβ or βEurodollar
Lending Office,β as the case may be, in its administrative questionnaire delivered to the Administrative Agent, or such other office or offices or office of a third party or sub-agent, as appropriate, as such Lender may from time to time notify the
Borrower and the Administrative Agent.
βLetter of Creditβ means a standby letter of credit issued or to be issued by the Lenders pursuant to this Agreement.Β Each Letter of Credit will be a
Syndicated Letter of Credit.
βLetter of Credit Sublimitβ means $500,000,000.
βLetter of Credit Usageβ means, as at any date of determination, the sum of (i) the maximum aggregate amount which is, or at any time thereafter may become,
available for drawing under all Letters of Credit then outstanding plus (ii) the aggregate amount of all L/C Disbursements made by the Lenders and not theretofore reimbursed by or on behalf of the Borrower.
βLicenseβ means any license, certificate of authority, permit or other authorization that is required to be obtained from any Governmental Authority in
connection with the operation, ownership or transaction of insurance business.
βLienβ means any security interest, mortgage, deed of trust, pledge, hypothecation, assignment, charge or deposit arrangement, encumbrance, lien (statutory or
other) or preferential arrangement of any kind or nature whatsoever in respect of any property (including those created by, arising under or evidenced by any conditional sale or other title retention agreement, the interest of a lessor under a
capital lease or any financing lease having substantially the same economic effect as any of the foregoing) and any contingent or other agreement to provide any of the foregoing, but not including the interest of a lessor under an operating lease or
a licensor under a license that does not otherwise secure an obligation.
βLimited Fronting Lenderβ means, with respect to any Participating Lender, any Lender that is an NAIC Approved Bank and that has agreed in a written agreement
to act as a fronting bank on behalf of such Participating Lender in accordance with Section 2.02(m), which agreement shall be in form and substance reasonably satisfactory to the Administrative Agent (such an agreement, a βLimited Fronting Lender Agreementβ).
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βLimited Fronting Percentageβ means, with respect to any Limited Fronting Lender and any Participating Lender, the percentage (not to exceed 100%) of such
Participating Lenderβs Pro Rata Share of the aggregate undrawn amount of Letters of Credit in respect of which such Limited Fronting Lender has agreed to act as a fronting bank, as set forth in the Limited Fronting Lender Agreement between such
Limited Fronting Lender and such Participating Lender.
βLoanβ means either a Base Rate Loan or a Eurodollar Rate Loan, as the context may require.
βLoan Documentsβ means this Agreement and amendments of and joinders to this Agreement that are deemed pursuant to their terms to be Loan Documents for
purposes hereof, all Revolving Loan Notes, the Guarantee Agreement, the Collateralized L/C Security Documents, the Fee Letters and all Extension Amendments.
βLoan Noticeβ means a notice of Credit Extension substantially in the form of Exhibit Cβ1.
βMagnoliaβ means Magnolia Parent LLC, a Bermuda limited liability company.
βMargin Stockβ means βmargin stockβ as such term is defined in Regulation U or X of the FRB.
βMaterial Adverse Effectβ means (a) a material adverse change in, or a material adverse effect upon, the business, properties, results of operations or
condition (financial or otherwise) of Holdings and its Restricted Subsidiaries taken as a whole; (b) a material impairment of the ability of any Credit Party to perform under any Loan Document to which it is a party; (c) a material adverse effect
upon the legality, validity, binding effect or enforceability against any Credit Party of any Loan Document to which it is a party; or (d) a material adverse change in the rights, remedies and benefits available to, or conferred upon, the
Administrative Agent and any Lender under any Loan Document.
βMaterial Indebtednessβ means Indebtedness having an aggregate outstanding principal amount, individually or in the aggregate, with all other Indebtedness of
the Credit Parties and their respective Restricted Subsidiaries (excluding the Senior Notes, Intercompany Indebtedness, Indebtedness under the Loan Documents and Operating Indebtedness which is recourse only to a Subsidiary of the Borrower which is a
special purpose life insurance captive vehicle) of not less than $75,000,000.
βMerger Agreementβ means the Agreement and Plan of Merger dated as of July 7, 2020, by and among GAFGL, GAFLL, Magnolia
Merger Sub Limited, a Bermuda exempted company, Magnolia, and solely for Section 2.10(a) thereunder, LAMC LP, a Cayman Island exempted limited partnership, and Xxxxxxx Xxxxx & Co. LLC, solely as the Equity Representative.
βMerger Outside Dateβ means the earlier to occur of (i) the date on which the Merger Agreement is terminated in
accordance with its terms (other than with respect to provisions therein that expressly survive termination) and (ii) the Outside Termination Date (as defined in Section 8.01(c) of the Merger Agreement as in effect on the date thereof,
26
as such date may be extended pursuant Section 8.01(c) or Section 9.09 of the Merger Agreement (in each case, as in effect on the date
thereof)).
βMergersβ means the mergers contemplated by the Merger Agreement.
βMinimum Cash Collateral Amountβ means, at any time, (i) with respect to Cash Collateral consisting of cash or deposit account balances, an amount equal to
103% of the L/C Exposure of the Lenders with respect to Letters of Credit issued and outstanding at such time and (ii) otherwise, an amount determined by the Administrative Agent in its reasonable discretion.
βMinimum Collateralized L/C Aggregate Collateral Amountβ means, as at any date of determination, 103% of the Collateralized Letter of Credit Usage.
βMNPIβ means material non-public information (within the meaning of United States federal, state or other applicable securities laws) with respect to Holdings,
the Borrower or their respective affiliates or securities.
βMoodyβsβ means Xxxxxβx Investors Service, Inc., together with any Person succeeding thereto by merger, consolidation or acquisition of all or substantially
all of its assets, including substantially all of its business of rating securities.
βMultiemployer Planβ means a βmultiemployer plan,β within the meaning of Section 4001(a)(3) of ERISA, to which Holdings, any of its Subsidiaries or any ERISA
Affiliate makes, is making or is obligated to make contributions or, during the preceding six calendar years, has made, or been obligated to make, contributions.
βNAICβ means the National Association of Insurance Commissioners or any successor thereto, or in the absence of the National Association of Insurance
Commissioners or such successor, any other association, agency or other organization performing advisory, coordination or other like functions among insurance departments, insurance commissioners and similar Governmental Authorities of the various
states of the United States toward the promotion of uniformity in the practices of such Governmental Authorities.
βNAIC Approved Bankβ means any Lender that is a bank listed on the most current βQualified U.S. Financial Institutions List (βQUFSIβ)β
of banks approved by the NAIC.
βNatural Personβ means a natural person or any company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person or
relative(s) thereof.
βNet Incomeβ means, for any Person for any period, the net income (or loss) of such Person for such period as determined, unless otherwise indicated, in
accordance with GAAP.
βNet Worthβ means the total common and preferred shareholdersβ equity of any Person as determined in accordance with GAAP (calculated excluding (i) accumulated
other comprehensive income (loss), (ii) any charges taken to write off any goodwill included on such Personβs balance sheet on the Restatement Effective Date to the extent such charges are required by FASB ASC 320 (InvestmentsβDebt and Equity
Securities) and ASC 350 (IntangiblesβGoodwill and Others) and (iii) all noncontrolling interests (as determined in
27
accordance with FASB ASC 160 (Noncontrolling Interests in Consolidated Financial Statements))).
βNew Revolving Commitmentβ has the meaning set forth in Section 2.15(a).
βNew Revolving Lenderβ means a Revolving Lender as of the Restatement Effective Date that was not an Existing Credit Agreement Lender immediately prior to the
effectiveness of this Agreement.Β The New Revolving Lender is Citibank, N.A..
βNew Revolving Loanβ has the meaning set forth in Section 2.15(b).
βNew Revolving Loan Lenderβ has the meaning set forth in Section 2.15(a).
βNon-Collateralized Letter of Creditβ means a Letter of Credit that is not a Collateralized Letter of Credit.
βNon-Consenting Lenderβ means a Lender that does not consent to an amendment or waiver pursuant to Section 10.01
that requires the consent of all or all affected Lenders in order to become effective and as to which Lenders holding more than 50% of the Revolving Loans and Revolving Commitments have consented.
βNon-Defaulting Lenderβ means, at any time, each Lender that is not a Defaulting Lender at such time.
βNon-NAIC Approved Bankβ means any Person that is not an NAIC Approved Bank.
βNon-Recourse Insurance Subsidiary Indebtednessβ means non-recourse Indebtedness of Insurance Subsidiaries and
Subsidiaries thereof incurred in the ordinary course of business resulting from the sale or securitization of non-admitted assets, policy loans, CBOs and CMOs or other similar instruments and structures.
βObligationsβ means all advances to, and debts, liabilities and obligations of, any Credit Party arising under any Loan Document, whether direct or indirect
(including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Credit Party of any proceeding under any
Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.Β Without limiting the generality of the foregoing, the Obligations of the Credit Parties under
the Loan Documents include (a) the obligation to pay principal, interest, charges, expenses, fees, Attorney Costs, indemnities and other amounts payable by any Credit Party under any Loan Document and (b) the obligation of any Credit Party to
reimburse any amount in respect of any of the foregoing that any Lender, in its sole discretion, may elect to pay or advance on behalf of such Credit Party.
βOFACβ has the meaning set forth in the definition of βEmbargoed Personβ.
βOperating Indebtednessβ of any Person means, at any date, without duplication, any Indebtedness of such Person (a) in respect of AXXX, XXX and other similar
life or annuity
28
reserve requirements, (b) incurred in connection with repurchase agreements and securities lending, (c) to the extent the proceeds of which are used directly or indirectly (including for the purpose of funding
portfolios that are used to fund trusts in order) to support AXXX, XXX and other similar life or annuity reserves, (d) to the extent the proceeds of which are used to fund discrete assets or pools of assets (and any related hedge instruments and
capital) that are segregated from other assets of such Person and in the judgment of such Person have sufficient cash flow to pay principal and interest thereof, with insignificant risk of other assets of such Person being called upon to make such
principal and interest payments, (e) in respect of undrawn letters of credit or drawn letters of credit that are reimbursed, issued on behalf of any Insurance Subsidiary or any Subsidiary of an Insurance Subsidiary in the ordinary course of its
business for insurance regulatory or reinsurance purposes, (f) that is owed to a Federal Home Loan Bank or (g) that is excluded entirely from financial leverage by either S&P or Moodyβs in its evaluation of Holdings.
βOrganization Documentsβ means (i) with respect to any corporation, the certificate or articles of incorporation, the bylaws, any certificate of designation or
instrument relating to the rights of preferred shareholders of such corporation, any shareholder rights agreement, (ii) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement
and (iii) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such
entity, or in the case of clauses (i), (ii) and (iii), the equivalent or comparable constituent documents with respect to any Foreign Subsidiary.
βOther Connection Taxesβ 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 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 the Revolving Loans, Revolving Commitments or Loan Documents).
βOther Taxesβ means any present or future recording, stamp, court or documentary Taxes or any other excise, sales or property Taxes, charges or similar levies
that arise from any payment made under this Agreement or any other Loan Document or from the execution, delivery, performance, enforcement or registration of, or otherwise with respect to, this Agreement or any other Loan Document, except any such
Taxes that are Connection Income Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 3.07 or 10.14).
βParticipantβ has the meaning specified in Section 10.07(d).
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βParticipant Registerβ has the meaning specified in Section 10.07(d).
βParticipating Lenderβ means any Lender that is (a) a Non-NAIC Approved Bank or (b) unable to issue Letters of Credit for the benefit of the Borrower and its
Subsidiaries due to regulatory restrictions, legal impediments or any other internal or external restrictions, in each case, on behalf of which a Limited Fronting Lender has agreed to act as a fronting bank in accordance with the definition of the
term βLimited Fronting Lenderβ and Section 2.02(m).
βPATRIOT Actβ has the meaning specified in Section 10.17.
βPBGCβ means the Pension Benefit Guaranty Corporation or any Governmental Authority succeeding to any of its principal functions under ERISA.
βPension Planβ means a pension plan (as defined in Section 3(2) of ERISA) subject to Title IV of ERISA that Holdings, any of its Subsidiaries or any ERISA
Affiliate sponsors or maintains, or to which it makes, is making or is obligated to make contributions, or in the case of a multiple employer plan (as described in Section 4064(a) of ERISA) has made contributions at any time during the immediately
preceding five (5) plan years.
βPermitted Holdersβ means any of KKR and its Subsidiaries.
βPermitted Swap Obligationsβ means all obligations (contingent or otherwise) of any Insurance Subsidiary existing or arising under Swap Contracts; provided that (x) each of the following criteria is satisfied:Β (a) such obligations are (or were) entered into by such Person in the ordinary course of business and consistent with past practices of such Person
for the purpose of managing risks associated with liabilities, commitments or assets held by such Person, or changes in the value of securities issued by such Person in conjunction with a securities repurchase program not otherwise prohibited
hereunder, and not for purposes of speculation or taking a βmarket viewβ and (b) such Swap Contracts do not contain any provision (a βwalk-awayβ provision) exonerating the non-defaulting party from its obligation to make payments on outstanding
transactions to the defaulting party or (y) such obligations are entered into by such Person in the ordinary course of business and consistent with past practices of such Person to transfer risk that might otherwise be transferred by insurance or
reinsurance transactions (and is an established line of business for such Person) and not for purposes of speculation or taking a βmarket viewβ.
βPersonβ means an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association,
joint venture or Governmental Authority or other entity of whatever nature.
βPlanβ means an employee benefit plan (as defined in Section 3(3) of ERISA) that Holdings or any of its Subsidiaries sponsors or maintains or to which Holdings
or any of its Subsidiaries makes, is making or is obligated to make, contributions and includes any Pension Plan.
βPlatformβ has the meaning specified in Section 6.02.
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βPortfolio Interest Exemptionβ has the meaning specified in Section 3.01(e)(B)(iii).
βPost-IPO Offeringsβ means any offering, whether public or private, of capital stock of the IPO Entity after the IPO.
βPost-Merger Change of Controlβ means (a) from and after the IPO,
any acquisition, directly or indirectly, by any person or group (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), other than the Permitted Holders, of beneficial ownership (within the meaning of Rule 13d-3 of the SEC
under the Exchange Act) of a percentage, on
a fully diluted basis, of the outstanding shares of Voting Stock of the IPO Entity that is both (i) equal to or greater than 35% and (ii) greater than the percentage, on a fully diluted
basis, of the outstanding shares of Voting Stock of the IPO Entity that is beneficially owned, directly or indirectly, by the Permitted Holders; (b) from and after the IPO, any person
or group (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), other than the
Permitted Holders, shall obtain, directly or indirectly, the power (whether or not exercised) to elect a majority of the members of the board of directors (or similar governing body)
of the IPO Entity (other than additional
direct power of GAFGL to elect a majority of the members of the board of directors (or similar governing body) of GAFL); (c)(i) prior to the IPO, the Permitted Holders shall
cease to beneficially own and control, directly or indirectly, at least 50.1% on a fully diluted basis of the outstanding shares of Voting Stock of GAFL or (ii) Holdings shall cease to beneficially own and control, directly or indirectly, 100% on a fully diluted basis of the outstanding shares of Voting Stock of the Borrower; or
(d) the occurrence of a βchange of controlβ (howsoever defined) in any instrument governing any Indebtedness of Holdings or its Restricted Subsidiaries with an aggregate outstanding amount in excess of $75,000,000 that constitutes an βevent of
defaultβ under such other debt instrument or would constitute an βevent of defaultβ after notice or passage of time under such other debt instrument.
βPre-Merger Change of Controlβ means (a) any acquisition, directly or indirectly, by any person or group (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act) of beneficial ownership (within the meaning of Rule 13d-3 of the SEC under the Exchange Act) of 35% or more on a fully diluted basis of the outstanding shares of Voting Stock of (i) prior to the
IPO, GAFL (other than the direct beneficial ownership of GAFLL of additional Voting Stock of GAFL), or (ii) from and after the IPO, the IPO Entity; (b) any person or group (as such terms are used in Sections 13(d) and 14(d) of the Exchange
Act) shall obtain, directly or indirectly, the power (whether or not exercised) to elect a majority of the members of the board of directors (or similar governing body) of (i) prior to the IPO, GAFL (other than additional direct power of
GAFLL to elect a majority of the members of the board of directors (or similar governing body) of GAFL), or (ii) from and after the IPO, the IPO Entity (other than additional direct
power of GAFLL to elect a majority of the members of the board of directors (or similar governing body) of GAFL); (c)(i) prior to the IPO, GAFGL or GAFLL shall cease to beneficially own and control, directly or indirectly, at least 50.1% on a fully
diluted basis of the outstanding shares of Voting Stock of GAFL or (ii) Holdings shall cease to beneficially own and control, directly or indirectly, 100% on a fully diluted basis of the outstanding shares of Voting Stock of the Borrower; or
(d) the occurrence of a βchange of controlβ (howsoever defined) in any instrument governing any Indebtedness of Holdings or its Restricted Subsidiaries with an aggregate outstanding amount in excess of $75,000,000 that constitutes an βevent
of
Β
31
defaultβ under such other debt instrument or would constitute an βevent of defaultβ after notice or passage of time under such other debt instrument.
βPrepayment Noticeβ means a written notice made pursuant to Section 2.06(e) substantially in the form of Exhibit J.
βPricing Levelβ means any of Pricing Xxxxx 0, Xxxxxxx Xxxxx 0, Xxxxxxx Xxxxx 3, Pricing Level 4 or Pricing Level 5 set forth in the table in the definition of
βApplicable Marginβ, βApplicable Revolving Commitment Fee Percentageβ and βApplicable Non-Collateralized Letter of Credit Feeβ.
βPro Rata Shareβ means, with respect to all payments, computations and other matters relating to the Revolving Commitment or Revolving Loans of any Lender or
any Letters of Credit issued by any Lender, the percentage obtained by dividing (a) the Revolving Exposure of that Lender by (b) the aggregate Revolving Exposure of all Lenders.
βPTEβ 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.
βPublic Lenderβ has the meaning specified in Section 6.02.
βPurchase Money Debtβ means Indebtedness incurred by a Person in connection with the purchase of fixed or capital assets by such Person, in which assets the
seller or financier thereof has taken or retained a Lien; provided that (x) any such Lien attaches to such assets concurrently with or within 120 days after the purchase thereof by such Person and (y) at the
time of incurrence of such Indebtedness, the aggregate principal amount of such Indebtedness shall not exceed the costs of the assets so purchased plus fees and expenses reasonably related thereto.
βQFC Credit Supportβ has the meaning specified in Section 10.25.
βQuarterly Statementβ means the quarterly statutory financial statement of any Insurance Subsidiary required to be filed with the insurance commissioner (or
similar authority) of its jurisdiction of incorporation or, if no specific form is so required, in the form of financial statements permitted by such insurance commissioner (or such similar authority) to be used for filing quarterly statutory
financial statements and shall contain the type of financial information permitted by such insurance commissioner (or such similar authority) to be disclosed therein, together with all exhibits or schedules filed therewith.
βRBCβ means Royal Bank of Canada.
βRBCCMβ means RBC Capital Markets, a brand name for the capital markets businesses of RBC and its Affiliates.
βReducing Lenderβ means a Continuing Existing Credit Agreement Lender (a) whose Existing Credit Agreement Revolving Commitment immediately prior to the
effectiveness of this Agreement (as a percentage of the aggregate Existing Credit Agreement Revolving Commitments of all Continuing Existing Credit Agreement Lenders immediately prior to the
32
effectiveness of this Agreement), was greater than (b) its Revolving Commitment upon the effectiveness of this Agreement (as a percentage of the aggregate Revolving Commitments of all Lenders upon the effectiveness of
this Agreement).
βRegisterβ has the meaning specified in Section 10.07(c).
βReimbursement Dateβ has the meaning specified in Section 2.02(h).
βReinsurance Agreementsβ means any agreement, contract, treaty, certificate or other arrangement by which any Insurance Subsidiary agrees to transfer or cede
to another insurer all or part of the liability assumed or assets held by it under one or more insurance, annuity, reinsurance or retrocession policies, agreements, contracts, treaties, certificates or similar arrangements.Β Reinsurance Agreements
shall include, but not be limited to, any agreement, contract, treaty, certificate or other arrangement that is treated as such by the applicable Department.
βRelated Partiesβ means, with respect to any Person, such Personβs Affiliates and the partners (to the extent such Person is a partnership), directors,
officers, employees, agents and advisors of such Person and of such Personβs Affiliates.
βReleaseβ means any release, spill, emission, discharge, deposit, disposal, leaking, pumping, pouring, dumping, emptying, injection, migration or leaching into
or through the Environment.
βReportable Eventβ means any of the events set forth in Section 4043(c) of ERISA or the regulations thereunder, other than any such event for which the 30-day
notice requirement under ERISA has been waived in regulations issued by the PBGC.
βRequired Lendersβ means, as of any date of determination, one or more Lenders having or holding Revolving Exposure and unused Revolving Commitments
representing more than 50% of the aggregate Revolving Exposure and unused Revolving Commitments of all Revolving Lenders; provided that the aggregate amount of Revolving Exposure and unused Revolving
Commitments shall be determined with respect to any Defaulting Lender by disregarding the Revolving Exposure and unused Revolving Commitments of such Defaulting Lender.
βRequirement of Lawβ means, as to any Person, any law (statutory or common), treaty, rule or regulation or determination of an arbitrator or of a Governmental
Authority and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in each case applicable to or legally binding upon the Person or any of its property or to which the Person or any of its property is subject.
βResolution Authorityβ means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK
Resolution Authority.
βResponsible Officerβ means the chief executive officer, president, chief financial officer, treasurer or assistant treasurer, or other officer of similar
stature or responsibility, of a Credit Party.Β Any document delivered under any Loan Document that is signed by a Responsible
33
Officer of a Credit Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Credit Party and such Responsible Officer shall be
conclusively presumed to have acted on behalf of such Credit Party.Β Unless otherwise specified, βResponsible Officerβ means a Responsible Officer of Holdings.
βRestatement Effective Dateβ means May 21, 2018, or, if later, the first date all the conditions precedent in Section 4.01 are satisfied or waived in
accordance with Section 10.01.
βRestricted Paymentsβ has the meaning set forth in Section 7.08.
βRestricted Subsidiaryβ means any Subsidiary other than an Unrestricted Subsidiary; provided that upon the occurrence
of any Unrestricted Subsidiary ceasing to be an Unrestricted Subsidiary, such Subsidiary shall be included in the definition of βRestricted Subsidiaryβ.
βRevolving Commitmentβ means the commitment of a Lender to make or otherwise fund any Revolving Loan and to issue Letters of Credit hereunder (or, in the case
of a Participating Lender, to acquire participations in Letters of Credit hereunder pursuant to Section 2.02(m)), and βRevolving Commitmentsβ means such commitments of all Lenders in the aggregate.Β The
amount of each Lenderβs Revolving Commitment, if any, is set forth on Appendix A or in the applicable Assignment and Assumption or Joinder Agreement, as applicable, subject to any adjustment or reduction pursuant to the terms and conditions
hereof.Β The aggregate amount of the Revolving Commitments as of the Restatement Effective Date is $1,000,000,000.
βRevolving Commitment Periodβ means the period from the Restatement Effective Date to but excluding the Commitment Termination Date.
βRevolving Exposureβ means, with respect to any Lender as of any date of determination, the sum of (a) the aggregate outstanding principal amount of the
Revolving Loans of that Lender and (b) the aggregate Letter of Credit Usage in respect of all Letters of Credit issued by that Lender.
βRevolving Lenderβ means a Lender having a Revolving Commitment.
βRevolving Loanβ means a Loan made by a Lender to the Borrower pursuant to Section 2.01(a).
βRevolving Loan Noteβ means a promissory note in the form of Exhibit B, as it may be amended, restated, supplemented or otherwise modified from time to
time.
βS&Pβ means Standard & Poorβs Ratings Services, a Standard & Poorβs Financial Services LLC business, together with any Person succeeding thereto by
merger, consolidation or acquisition of all or substantially all of its assets, including substantially all of its business of rating securities.
βSAPβ means, with respect to any Insurance Subsidiary, the statutory accounting practices prescribed or permitted by the insurance commissioner (or other
similar authority) in the jurisdiction of such Insurance Subsidiary for the preparation of annual statements and other
34
financial reports by insurance companies of the same type as such Insurance Subsidiary that are applicable to the circumstances as of the date of filing of such statement or report.
βSECβ means the Securities and Exchange Commission or any Governmental Authority succeeding to any of its principal functions.
βSecured Partiesβ has the meaning specified in the Collateralized L/C Security and Control Agreement.
βSecurities Actβ means the Securities Act of 1933 and the regulations promulgated thereunder.
βSecurity and Control Agreementβ means the Second Amended and Restated Security and Control Agreement, dated as of the Restatement Effective Date, among the
Borrower, the Administrative Agent and the Custodian.
βSenior Notesβ means the $150,000,000 8.625% Senior Notes due 2021 issued by Forethought Financial Group, Inc., a Delaware corporation (which merged with and
into the Borrower, with the Borrower as the surviving entity).
βSingle Employer Pension Planβ means a pension plan (as defined in Section 3(2) of ERISA) subject to Title IV of ERISA, other than a Multiemployer Plan, that
Holdings, any of its Subsidiaries or any ERISA Affiliate sponsors or maintains, or to which Holdings, any of its Subsidiaries or any ERISA Affiliate makes or is obligated to make contributions or could reasonably be expected to have liability,
including any liability by reason of having been a substantial employer within the meaning of Section 4063 of ERISA at any time during the preceding five years or by reason of being deemed to be a contributing sponsor under Section 4069 of ERISA.
βSpecified Currencyβ has the meaning set forth in Section 10.22(a).
βSpecified Placeβ has the meaning set forth in Section 10.22(a).
βSubordinated Indebtednessβ means any Indebtedness of Holdings or any Restricted Subsidiary that is subordinated in right of payment to the Obligations.
βSubsidiaryβ of a Person means any corporation, partnership, limited liability company, limited liability partnership, joint venture, trust, association or
other unincorporated organization of which or in which such Person and such Personβs Subsidiaries own directly or indirectly more than 50% of (a) the combined voting power of all classes of stock having general voting power under ordinary
circumstances to elect a majority of the board of directors, if it is a corporation, (b) the voting or managing interests (which shall mean the general partner in the case of a partnership), if it is a partnership, joint venture or similar entity,
(c) the beneficial interest, if it is a trust, association or other unincorporated organization or (d) the voting or managing membership interests, if it is a limited liability company.Β Unless otherwise specified, βSubsidiaryβ means a Subsidiary of Holdings.Β Unless otherwise specified, when used herein, the term βSubsidiaryβ of KKR shall not include any portfolio company of KKR or
any of its Subsidiaries.Β For the avoidance of doubt, from and after the consummation of the
35
Mergers, neither Holdings nor any of its Subsidiaries shall be considered a portfolio company of KKR or any of its Subsidiaries.
βSuccessor Entityβ has the meaning specified in Section 7.07(c).
βSupported QFCβ has the meaning specified in Section 10.25.
βSurplus Debentures or Notesβ means, as to any Insurance Subsidiary, debt securities or notes of such Insurance Subsidiary issued to Holdings or any of its
Subsidiaries the proceeds of which are permitted to be included, in whole or in part, as Capital and Surplus of such Insurance Subsidiary as approved and permitted by the applicable Department and are of a type generally described in the insurance
industry as a βsurplus noteβ.
βSwap Contractβ means any agreement relating to any transaction (whether or not arising under a master agreement) that is a rate swap, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index swap or option, bond, note or xxxx option, interest rate option, futures contract, forward foreign exchange transaction, cap, collar or floor transaction, currency swap,
cross-currency rate swap, swaption, currency option, credit derivative transaction or any other similar transaction (including any option to enter into any of the foregoing) or any combination of the foregoing, and any master agreement relating to or
governing any or all of the foregoing.
βSwap Termination Valueβ means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement
relating to such Swap Contracts and all rights to set off against collateral posted in respect of such Swap Contract, (a) for any date on or after the date such Swap Contracts 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 xxxx-to-market value(s) for such Swap Contracts, as determined by Holdings based upon one or more mid-market
or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may include any Lender).
βSyndicated Letter of Creditβ means a single multi-bank letter of credit issued by all of the Lenders (acting through the Administrative Agent in accordance
with the provisions hereof) in which each Lender, as an issuing bank thereunder, has a several (but not joint) obligation in respect of a specified portion of the amount of such Letter of Credit.
βSyndication Agentsβ means, collectively, RBC, US Bank and Xxxxx Fargo and their respective successors and assigns in such capacity.
βSynthetic Purchase Agreementβ means any agreement pursuant to which Holdings or any of its Subsidiaries is or may become obligated to make (a) any payment in
connection with the purchase by any third party from a Person other than Holdings or any of its Subsidiaries (other than any Subsidiary that is a Subsidiary of an Insurance Subsidiary but is not itself an Insurance Subsidiary) of any Capital Stock or
Subordinated Indebtedness of Holdings or any of its Subsidiaries (other than any Subsidiary that is a Subsidiary of an Insurance Subsidiary but is not itself an Insurance Subsidiary) or (b) any payment the amount of which is determined by reference
to the price or value at any time of any such Capital Stock or Subordinated
36
Indebtedness; provided that (i) no phantom stock or similar plan providing for payments only to current or former directors, officers or employees of Holdings or any of its
Subsidiaries (or to their heirs or estates) and (ii) no such agreement in respect of any Disposition of any Capital Stock of a Subsidiary of Holdings that is permitted by Section 7.03 shall in either case be deemed to be a Synthetic Purchase
Agreement.
βTax Benefit Payment Agreementβ means the Tax Benefit Payment Agreement, dated as of April 30, 2013, among the Borrower, as Payor, GAFLGAFLL, as Intermediate
Guarantor, ParentGAFGL, as Parent Guarantor and The Xxxxxxx Sachs Group, Inc., as Payee.
βTax Status Certificateβ has the meaning specified in Section 3.01(e)(B)(iii).
βTaxesβ means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges
imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
βTotal Capitalizationβ means, without duplication, (a) the amount described in clause (a) of the definition of βDebt to Total Capitalization Ratioβ plus (b)Β the Net Worth of the applicable Person.
βTotal Utilization of Revolving Commitmentsβ means, as at any date of determination, the sum of (i) the aggregate principal amount of all outstanding Revolving
Loans plus (ii) the Letter of Credit Usage.
βTransactionsβ means the (i) execution, delivery and performance by each Credit Party of the Loan Documents to which it is to be a party, (ii) borrowing of
Loans, use of the proceeds thereof and issuance of Letters of Credit hereunder and (iii) payment of fees and expenses incurred in connection with the foregoing.
βTransaction Partiesβ has the meaning specified in Section 5.07(d).
βUK Financial Institutionβ means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from
time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which
includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
βUK Resolution Authorityβ means the Bank of England or any other public administrative authority having responsibility
for the resolution of any UK Financial Institution.
βUnfunded Pension Liabilityβ means the excess of a Pension Planβs benefit liabilities under Section 4001(a)(16) of ERISA over the current value of that Pension
Planβs assets, determined in accordance with the assumptions used for funding the Pension Plan pursuant to Section 430 of the Code for the applicable plan year.
37
βUniform Commercial Codeβ means the Uniform Commercial Code as in effect from time to time in the State of New York; provided
that, if perfection or the effect of perfection or non-perfection or the priority of any Collateralized L/C Lien on any Collateralized L/C Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than New York,
βUniform Commercial Codeβ means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection or priority.
βUnited Statesβ and βU.S.β each means the United States of America.
βUnrestricted Subsidiaryβ means any Subsidiary designated by the board of directors (or similar governing body) of (a) Holdings or (b) if such Subsidiary is a
Subsidiary of the Borrower, the Borrower, as an Unrestricted Subsidiary pursuant to Section 6.14 subsequent to the date hereof.Β Holdings or the Borrower may designate any subsidiary (including any existing Subsidiary and any newly acquired
or newly formed Subsidiary) to be an Unrestricted Subsidiary unless such Subsidiary or any of its subsidiaries owns any Capital Stock or Indebtedness of, or owns or holds any Lien on any property of, Holdings or any Subsidiary (other than any
subsidiary of the subsidiary to be so designated); provided that (i) each of (A) the subsidiary to be so designated and (B) its subsidiaries has not at the time of designation, and does not thereafter,
create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable with respect to any Indebtedness pursuant to which the lender has recourse to any of the assets of Holdings or any Restricted Subsidiary, (ii) neither Holdings
nor the Borrower may designate (A) the Borrower, (B) any Insurance Subsidiary or (C) any Subsidiary of Holdings or the Borrower that directly or indirectly owns any Capital Stock of any Insurance Subsidiary (including any such Subsidiary of Holdings
or the Borrower that is itself owned by an Insurance Subsidiary) to be an Unrestricted Subsidiary and (iii) for the avoidance of doubt, there shall be no Unrestricted Subsidiaries on the Restatement Effective Date.
βUS Bankβ means U.S. Bank National Association.
βU.S. Special Resolution Regimesβ has the meaning specified in Section 10.25.
βVoting Stockβ of any Person means Capital Stock of such Person entitling the holders thereof (whether at all times or only so long as no senior class of stock
or other relevant equity interest has voting power by reason of any contingency) to vote in the election of the board of directors or similar governing body of such Person.
βWeighted Average Life to Maturityβ means, when applied to any Indebtedness at any date, the number of years obtained by dividing:Β (a) the sum of the products
obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (ii) the number of years (calculated to the
nearest one-twelfth) that will elapse between such date and the making of such payment; by (b) the then outstanding principal amount of such Indebtedness.
βXxxxx Fargoβ means Xxxxx Fargo Bank, National Association.
38
βWFSβ means Xxxxx Fargo Securities, LLC.
βWholly-Owned Subsidiaryβ means any Person in which all of the Capital Stock (other than directorsβ and national
citizen qualifying shares or similar de minimis holdings by another Person, in each case, as required by law) is owned, beneficially and of record, by Holdings, or by one or more of the other Wholly-Owned
Subsidiaries, or both.
βWrite-Down and Conversion Powersβ 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,Β any powers of
the applicable Resolution AuthorityΒ under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial InstitutionΒ 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.
(a)Β Β Β Β Β Β Β Β Β The meanings of defined terms are equally applicable to the singular and plural forms of the defined terms.
(b)Β Β Β Β Β Β The words βhereof,β βherein,β βhereunderβ and similar words refer to this Agreement as a whole and not to any particular provision of this Agreement; and subsection, Section, Article, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(c)Β Β Β Β Β Β Β Β (i)Β Β Β Β Β Β Β Β Β The term βdocumentsβ
includes any and all instruments, documents, agreements, certificates, indentures, notices and other writings, however evidenced.
(ii)Β Β Β Β Β Β Β The term βincludingβ is not limiting and means βincluding without
limitationβ.
(iii)Β Β Β Β Β In the computation of periods of time from a specified date to a later specified date, the word βfromβ means βfrom and including,β the words βtoβ and βuntilβ each mean βto but excludingβ and the word βthroughβ means βto and includingβ.
(iv)Β Β Β Β Β The term βwillβ shall be construed to have the same meaning and
effect as the word βshallβ.
(d)Β Β Β Β Β Unless otherwise expressly provided herein or the context requires otherwise, (i) references to agreements (including this
Agreement) and other contractual instruments shall be deemed to include all subsequent amendments and other modifications thereto, but only to the extent such amendments and other modifications are not prohibited by the terms of any Loan Document,
(ii) references to any statute or regulation are to be construed as including all
39
statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting the statute or regulation, (iii) any reference herein to a Person shall be construed to include such Personβs
permitted successors and assigns and (iv) the word βpropertyβ shall be construed to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.
(e)Β Β Β Β Β Β Β Β The captions and headings of this Agreement are for convenience of reference only and shall not affect the interpretation of
this Agreement.
(f)Β Β Β Β Β Β Β Β This Agreement and other Loan Documents may use several different limitations, tests or measurements to regulate the same or
similar matters.Β All such limitations, tests and measurements are cumulative and shall each be performed in accordance with their terms.
(g)Β Β Β Β Β Β Β This Agreement and the other Loan Documents are the result of negotiations among, and have been reviewed by counsel to, the
Administrative Agent, the Borrower and the other parties, and are the products of all parties.Β Accordingly, they shall not be construed against the Lenders or the Administrative Agent merely because of the Administrative Agentβs or Lendersβ
involvement in their preparation.
Section 1.03Β Β Β Β Β Β Β Classification of Loans.Β For purposes of this
Agreement, Loans may be classified and referred to by Interest Type (e.g., a βEurodollar Rate Loanβ).
(a)Β Β Β Β Β Β Β Β Unless the context otherwise clearly requires, all accounting terms not expressly defined herein shall be construed, and all
financial computations required under this Agreement shall be made, in accordance with GAAP as in effect from time to time, consistently applied.Β Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the
computation of any financial covenant) contained herein, Indebtedness of Holdings 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.
(b)Β Β Β Β Β Β Β Β References herein to particular columns, lines or sections of any Personβs Annual Statement shall be deemed, where
appropriate, to be references to the corresponding column, line or section of such Personβs Quarterly Statement, or if no such corresponding column, line or section exists or if any report form changes, then to the corresponding item referenced
thereby.Β In the event the columns, lines or sections of the Annual Statement or Quarterly Statement referenced herein are changed or renumbered from the columns, lines and sections applicable to the 2017 Annual Statement, or the September 30, 0000
Xxxxxxxxx Xxxxxxxxx, all such references shall be deemed references to such column, line or section as so renumbered or changed.
(i)Β Β Β Β Β Β Β Β Β If, at any time after the date of this Agreement, any material change is made to GAAP or Holdingsβ
accounting practices that would affect in any material respect the determination of compliance with the covenants set forth in this Agreement, Holdings shall notify the Administrative Agent of the change and Holdings and the Administrative Agent
shall negotiate in good faith to amend such covenant, subject to the approval of the Required Lenders, to restore Holdings and the Lenders to the position
40
they occupied before the implementation of such material change in GAAP or accounting practices; provided that if Holdings and the Administrative Agent are
unable to reach agreement within sixty (60) days following the implementation of such material change, the Administrative Agent shall be permitted, acting in good faith, to make such amendments, in each case subject to the approval of the Required
Lenders, to the covenants set forth in this Agreement as it reasonably determines are necessary to restore Holdings and the Lenders to the position they occupied prior to the implementation thereof.
(a)Β Β Β Β Β Β Β Solely
with respect to Sections 6.11 and 7.03, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdictionβs laws):Β (a) if any asset, right, obligation or liability of any Person becomes
the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to
have been organized on the first date of its existence by the holders of its Equity Interests at such time.
The Credits
(a)Β Β Β Β Β Β Β Β Β Revolving Commitments.Β During the Revolving Commitment Period, subject to the terms and conditions hereof, each Lender
with a Revolving Commitment severally agrees to make Revolving Loans in Dollars to the Borrower; provided that, after giving effect to the making of any Revolving Loans, in no event shall the Total
Utilization of Revolving Commitments exceed the Revolving Commitments then in effect.Β Amounts borrowed pursuant to this Section 2.01(a) may be repaid and reborrowed during the Revolving Commitment Period.Β Each Revolving Commitment shall
expire on the Commitment Termination Date and all Revolving Loans and all other amounts owed hereunder with respect to the Revolving Loans and the Revolving Commitments shall be paid in full no later than such date.
(b)Β Β Β Β Β Β Β Β Β Borrowing Mechanics for Revolving Loans.
(i)Β Β Β Β Β Β Β Except pursuant to Section 2.02(h) or 2.02(l)(vi), Revolving Loans shall be made in an
aggregate minimum amount of $2,500,000 and integral multiples of $1,000,000 in excess of that amount.
(ii)Β Β Β Β Β Β Whenever the Borrower desires that Lenders make Revolving Loans, the Borrower shall deliver to the
Administrative Agent a fully executed and delivered Loan Notice no later than 10:00 a.m. (New York City time) (A) in the case of a Eurodollar Rate Loan, at least three (3) Business Days in advance of the proposed Borrowing Date, (B) in the case of
one or more Base Rate Loans in an aggregate principal amount greater than $100,000,000, at least one (1) Business Day in advance of the proposed Borrowing Date, and (C) in the case of one or more Base Rate Loans in an aggregate principal
41
amount equal to or less than $100,000,000, on the proposed Borrowing Date; provided that, if such Borrowing Date is the Restatement Effective Date, such
Loan Notice may be delivered within such period shorter than three (3) Business Days as may be agreed by the Administrative Agent with respect to Eurodollar Rate Loans.Β Except as otherwise provided herein, a Loan Notice for a Revolving Loan that is
a Eurodollar Rate Loan shall be irrevocable on and after the related Interest Rate Determination Date.
(iii)Β Β Β Β Β Β Β Notice of receipt of each Loan Notice in respect of Revolving Loans, together with the amount of each
Lenderβs Pro Rata Share thereof, if any, together with the applicable interest rate, shall be provided by the Administrative Agent to each applicable Lender by facsimile or other electronic communication with reasonable promptness, but (provided that the Administrative Agent shall have received such notice by 10:00 a.m. (New York City time)) not later than 3:00 p.m. (New York City time) (or, in the case of a Loan Notice delivered pursuant to Section
2.01(b)(ii)(C), 12:00 noon (New York City time)) on the same day as the Administrative Agentβs receipt of such Loan Notice from the Borrower.
(iv)Β Β Β Β Β Β Β Each Lender shall make the amount of its Revolving Loan available to the Administrative Agent not later
than 12:00 noon (New York City time) (or, in the case of Base Rate Loans with respect to which a Loan Notice is delivered pursuant to Section 2.01(b)(ii)(C), 2:00 p.m. (New York City time)) on the applicable Borrowing Date by wire transfer of
same day funds in Dollars, at the Administrative Agentβs Office.Β Except as provided herein, upon satisfaction or waiver of the conditions precedent specified herein, the Administrative Agent shall make the proceeds of such Revolving Loans available
to the Borrower on the applicable Borrowing Date by causing an amount of same day funds in Dollars equal to the proceeds of all such Revolving Loans received by the Administrative Agent from Lenders to be credited to the account of the Borrower at
the Administrative Agentβs Office or to such other account or accounts as may be designated in writing to the Administrative Agent by the Borrower.
(a)Β Β Β Β Β Β Letters of Credit.Β During the Revolving Commitment Period, subject to the terms and conditions hereof (including
Section 2.02(m)), the Lenders shall issue Letters of Credit in respect of which the Borrower is the applicant (or, so long as the Borrower is a joint and several co-applicant in respect thereof, any Subsidiary is the applicant; provided that, with
respect to any such Subsidiary, the Borrower shall have designated such Subsidiary to the Administrative Agent in writing as an applicant of Letters of Credit at least seven (7) Business Days prior to the delivery by the Borrower of the Issuance
Notice with respect to the first Letter of Credit in respect of which such Subsidiary is the applicant, and any Lender shall have been provided with documentation and other information it reasonably determines are required by bank regulatory
authorities under applicable βknow-your-customerβ and Anti-Money Laundering Laws, including the PATRIOT Act, at least five (5) Business Days prior to the delivery of such Issuance Notice as has been reasonably requested in writing at least six (6)
Business Days prior to the delivery of such Issuance Notice) for the support of obligations of Holdings and/or its Subsidiaries in an aggregate amount up to but not exceeding the Letter of Credit Sublimit; provided,
(i) each Letter of Credit shall be a standby letter of credit denominated in Dollars; (ii) the stated amount of each
42
Letter of Credit shall not be less than $500,000 or such lesser amount as is acceptable to the Administrative Agent; (iii) after giving effect to such issuance, in no event shall the Total Utilization of Revolving
Commitments exceed the Revolving Commitments then in effect; (iv) after giving effect to such issuance, in no event shall the Letter of Credit Usage exceed the Letter of Credit Sublimit; (v) after giving effect to the issuance of any Collateralized
Letter of Credit, in no event shall the Collateralized L/C Aggregate Collateral Amount be less than the Minimum Collateralized L/C Aggregate Collateral Amount; (vi) in no event shall any Letter of Credit have an expiration date later than the earlier
of (A) five (5) days prior to the Commitment Termination Date (unless such Letter of Credit shall on the date of issuance have been Cash Collateralized in the Minimum Cash Collateral Amount which Letter of Credit, for the avoidance of doubt, shall
not have an expiration date later than twelve (12) months (or, if required by the applicable Department, thirteen (13) months) after the Commitment Termination Date) and (B) the date which is one (1) year from the date of issuance of such Letter of
Credit (or, if required by the applicable Department, thirteen (13) months from the date of issuance of such Letter of Credit); (vii) in no event shall any Letter of Credit be issued if such issuance would violate any Requirement of Law; (viii) in no
event shall any Letter of Credit be issued if such Letter of Credit is otherwise unacceptable to the Administrative Agent in its reasonable discretion; and (ix) each Letter of Credit shall be substantially in the form of the Administrative Agentβs
customary form; provided, further, that, without the prior consent of each Lender, no Letter of Credit may be issued that would vary the several and not joint nature
of the obligations of the Lenders thereunder and, subject to Section 2.02(m), each Letter of Credit shall be issued by all of the Lenders having Revolving Commitments at the time of issuance as a single multi-bank letter of credit, but the
obligation of each Lender thereunder shall be several and not joint, based upon its Pro Rata Share of the aggregate undrawn amount of such Letter of Credit (subject to Section 2.02(m)).Β Subject to the foregoing, the Administrative Agent may
agree that a Letter of Credit will automatically be extended for one or more successive periods not to exceed one year each, unless the Administrative Agent elects not to extend for any such additional period; provided,
that the Administrative Agent shall not extend any such Letter of Credit if (i) it has received written notice from a Lender or the Borrower that an Event of Default has occurred and is continuing at least two (2) Business Days prior to the time the
Administrative Agent must elect to allow such extension; provided, further, if a Letter of Credit will not be renewed, the Administrative Agent shall notify the
Borrower and the beneficiary of such Letter of Credit of such non-renewal or (ii) such renewal would occur later than five (5) days prior to the Commitment Termination Date (unless such Letter of Credit shall on the date of renewal have been Cash
Collateralized in the Minimum Cash Collateral Amount which Letter of Credit, for the avoidance of doubt, shall not have an expiration date later than twelve (12) months (or, if required by the applicable Department, thirteen (13) months) after the
Commitment Termination Date).
(b)Β Β Β Β Β Β Β Β Notice of Issuance, Amendment, Renewal or Extension.Β Whenever the Borrower desires the issuance of a
Letter of Credit (or the amendment, renewal or extension of an outstanding Letter of Credit), it shall deliver to the Administrative Agent an Issuance Notice requesting the issuance of a Letter of Credit, or identifying the Letter of Credit to be
amended, renewed or extended, and specifying (i) the date of issuance, amendment, renewal or extension, as the case may be (which shall be a Business Day), (ii) the date on which such Letter of Credit is to expire (which shall comply with Section
2.02(a)), (iii) the amount of such Letter of Credit, (iv) the name and address of the beneficiary thereof, (v) in the case of the issuance of a Letter of
43
Credit, whether such Letter of Credit will be a Non-Collateralized Letter of Credit or a Collateralized Letter of Credit and (vi) the other terms and conditions of (and such other information as shall be necessary to
prepare, amend, renew or extend, as the case may be) such Letter of Credit no later than 11:00 a.m. (New York City time) at least ten (10) Business Days, or such shorter period as may be agreed to by the Administrative Agent in any particular
instance, in advance of the proposed date of issuance, amendment, renewal or extension, as the case may be.Β Upon receipt by the Administrative Agent of an Issuance Notice, the Administrative Agent shall deliver to each Lender with a Revolving
Commitment a copy of such Issuance Notice; provided that any failure to deliver or delay in delivering a copy of such Issuance Notice shall not relieve any Lender of its obligations under this Section
2.02.Β In connection with any request for a Collateralized Letter of Credit, the Borrower shall deliver to the Administrative Agent a Collateralized L/C Collateral Certificate no later than 11:00 a.m. (New York City time) on the Business Day
immediately preceding the date of issuance of such Collateralized Letter of Credit, confirming that the Collateralized L/C Aggregate Collateral Amount after giving effect to such issuance shall equal or exceed the Minimum Collateralized L/C Aggregate
Collateral Amount.Β If requested by the Administrative Agent, the Borrower also shall submit a letter of credit application on the Administrative Agentβs standard form in connection with any request for a Letter of Credit.Β In the event of any
inconsistency between the terms and conditions of this Agreement and the terms and conditions of any form of letter of credit application or other agreement submitted by the Borrower to, or entered into by the Borrower with the Administrative Agent
relating to any Letter of Credit, the terms and conditions of this Agreement shall control.Β Upon the issuance, renewal or extension of any Letter of Credit or amendment or modification to a Letter of Credit, the Administrative Agent shall notify
each Lender with a Revolving Commitment of such issuance and the amount of such Lenderβs respective L/C Exposure in such Letter of Credit and deliver to such Lender a copy of such Letter of Credit; provided
that any failure to give or delay in giving such notice or any failure to deliver or delay in delivering a copy of such Letter of Credit shall not relieve any Lender of its obligations under this Section 2.02.
(c)Β Β Β Β Β Β Β Obligation of Lenders.Β With respect to any Letter of Credit, the obligation of any Lender under such Letter of Credit
shall be several and not joint and shall at any time be in an amount equal to such Lenderβs Pro Rata Share of the aggregate undrawn amount of such Letter of Credit (subject to Section 2.02(m)), and each Letter of Credit shall expressly so
provide.
(d)Β Β Β Β Β Β Β Β Β Adjustment of Pro Rata Shares.Β Upon (i) each addition of a new Lender hereunder, (ii) each change in the Revolving
Commitment of a Lender pursuant to this Agreement and (iii) each change in status of a Lender as a Participating Lender, then in the case of each outstanding Letter of Credit, without the consent of the beneficiary thereunder unless required under
such Letter of Credit or applicable law (including, if applicable, the Uniform Customs and Practices for Documentary Credits governing such Letter of Credit), the Administrative Agent shall promptly amend such Letter of Credit to specify the Lenders
that are parties thereto, after giving effect to such event, and such Lendersβ respective Pro Rata Shares as of the effective date of such amendment (subject to Section 2.02(m)).Β However, it is acknowledged by the Administrative Agent and
the Lenders that amendments of outstanding Letters of Credit may not be immediately effected and may be subject to the consent of the beneficiaries of such Letters of Credit.Β Accordingly, whether or not Letters of Credit are amended as contemplated
hereby, the Lenders agree that they shall purchase and sell
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participations or otherwise make or effect such payments among themselves (but through the Administrative Agent) so that payments by the Lenders of drawings under Letters of Credit and payments by the Borrower of L/C
Disbursements made by the Lenders and interest thereon are, except as otherwise expressly set forth herein (including with respect to Limited Fronting Lenders and Defaulting Lenders), in each case shared by the Lenders in accordance with the
Revolving Commitments of the Lenders from time to time in effect.
(e)Β Β Β Β Β Β Β Β Issuance and Administration of Letters of Credit.Β With respect to each Letter of Credit, such Letter of Credit shall
be executed and delivered by the Administrative Agent in the name and on behalf of, and as attorney-in-fact for, the Lenders party to such Letter of Credit, and the Administrative Agent shall act as the agent of each such Lender to (i) receive
drafts, other demands for payment and other documents presented by the beneficiary under such Letter of Credit, (ii) determine whether such drafts, demands and documents are in compliance with the terms and conditions of such Letter of Credit and
(iii) notify such Lender and the Borrower that a valid drawing has been made and the date that the related disbursement is to be made; provided that the Administrative Agent shall have no obligation or
liability for any disbursement under such Letter of Credit, and each Letter of Credit shall expressly so provide.Β Each Lender hereby irrevocably appoints and designates the Administrative Agent as its attorney-in-fact, acting through any duly
authorized officer of the Person that is serving as the Administrative Agent, to execute and deliver in the name and on behalf of such Lender each Letter of Credit (together with any amendment, extension or renewal thereof) to be issued by the
Lenders hereunder.Β Promptly upon the request of the Administrative Agent, each Lender will furnish to the Administrative Agent such powers of attorney or other evidence as any beneficiary of any such Letter of Credit may reasonably request in order
to demonstrate that the Administrative Agent has the power to act as attorney-in-fact for such Lender to execute and deliver each Letter of Credit (together with any amendment, extension or renewal thereof).
(f)Β Β Β Β Β Β Β Β Responsibility of Administrative Agent With Respect to Requests for Drawings and Payments.Β In determining whether to
honor any drawing under any Letter of Credit by the beneficiary thereof, the Administrative Agent shall be responsible only to examine the documents delivered under such Letter of Credit with reasonable care so as to ascertain whether they appear on
their face to be in substantial compliance with the terms and conditions of such Letter of Credit.Β As between the Borrower and the Administrative Agent, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit
issued by the Administrative Agent by, the respective beneficiaries of such Letters of Credit.Β In furtherance and not in limitation of the foregoing, the Administrative Agent shall not be responsible for:Β (i) the form, validity, sufficiency,
accuracy, genuineness or legal effect of any document submitted by any party in connection with the application for and issuance of any such Letter of Credit or any document presented by a beneficiary in connection with a drawing under any such
Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign
any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (iii) failure of the beneficiary of any such Letter of Credit to comply fully with
any conditions required in order to draw upon such Letter of Credit; (iv) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher; (v)
errors in interpretation of technical
45
terms; (vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or of the proceeds thereof; (vii) the misapplication by the
beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit; or (viii) any consequences arising from causes beyond the control of the Administrative Agent, including any Governmental Acts; none of the above
shall affect or impair, or prevent the vesting of, any of the Administrative Agentβs rights or powers hereunder.Β Without limiting the foregoing and in furtherance thereof, any action taken or omitted by the Administrative Agent under or in
connection with the Letters of Credit or any documents and certificates delivered thereunder, if taken or omitted in good faith (as defined under Article 5 of the Uniform Commercial Code as adopted by the State of New York), shall not give rise to
any liability on the part of the Administrative Agent to the Borrower.Β Notwithstanding anything to the contrary contained in this Section 2.02(f), the Borrower shall retain any and all rights it may have against the Administrative Agent for
any direct damages (as opposed to special, indirect, consequential or punitive damages, which claims are hereby waived by the Borrower to the extent permitted under applicable law) suffered by the Borrower arising solely out of the gross negligence
or willful misconduct of the Administrative Agent in determining whether documents delivered under any Letter of Credit substantially comply with the terms thereof as determined by a final, non-appealable judgment of a court of competent
jurisdiction.
(g)Β Β Β Β Β Β Disbursement Procedures.Β The Administrative Agent shall, within a reasonable time following its receipt thereof,
examine all documents purporting to represent a demand for payment under any Letter of Credit.Β The Administrative Agent shall promptly after such examination notify each of the Lenders by telephone (confirmed by telecopy or electronic mail) of such
demand for payment.Β With respect to any drawing properly made under any such Letter of Credit, as determined by the Administrative Agent, subject to Section 2.02(m), each Lender will make an L/C Disbursement in respect of such Letter of
Credit in accordance with its liability under such Letter of Credit and this Agreement, such L/C Disbursement to be made in Dollars to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders.Β
The Administrative Agent will make any such L/C Disbursement available to the beneficiary of such Letter of Credit by promptly crediting the amounts so received, in like funds in Dollars, to the account identified by such beneficiary in connection
with such demand for payment.Β Promptly following any L/C Disbursement by any Lender in respect of any such Letter of Credit, the Administrative Agent will notify the Borrower of such L/C Disbursement; provided
that any failure to give or delay in giving such notice shall not relieve the Borrower of its obligation to reimburse the Lenders with respect to any such L/C Disbursement.
(h)Β Β Β Β Β Β Β Reimbursement by the Borrower of Amounts Drawn or Paid Under Letters of Credit.Β In the event the Borrower has received
a notice of any L/C Disbursement made pursuant to Section 2.02(g), the Borrower shall reimburse each Lender in respect of any such L/C Disbursement by paying to the Administrative Agent on or before the Business Day immediately following the
date of such L/C Disbursement, but in no event later than the third (3rd) Business Day immediately following the date of such L/C Disbursement (the βReimbursement Dateβ) in an amount in Dollars and in same day
funds equal to the amount of such L/C Disbursement; provided that any failure to give or delay in giving such notice shall not relieve the Borrower of its obligation to reimburse the Administrative Agent and
the Lenders once such notice is delivered; provided, further, that anything contained herein to the contrary notwithstanding,
46
(i) unless the Borrower shall have notified the Administrative Agent prior to 10:00 a.m. (New York City time) on the date of such L/C Disbursement that the Borrower intends to reimburse the Administrative Agent for
the amount of such L/C Disbursement with funds other than the proceeds of Revolving Loans, the Borrower shall be deemed to have given a timely Loan Notice to the Administrative Agent requesting Lenders with Revolving Commitments to make Revolving
Loans that are Base Rate Loans on the Reimbursement Date in an amount in Dollars equal to such L/C Disbursement, and (ii) subject to satisfaction or waiver of the conditions specified in Section 4.02, Lenders with Revolving Commitments shall,
on the Reimbursement Date, make Revolving Loans that are Base Rate Loans in the amount of such L/C Disbursement, the proceeds of which shall be applied directly by the Administrative Agent to reimburse each Lender for its Pro Rata Share of such L/C
Disbursement; provided, further, if for any reason (including, without limitation, by reason of exceeding the Revolving Commitments) proceeds of Revolving Loans are
not received by the Administrative Agent on the Reimbursement Date in an amount equal to the amount of such L/C Disbursement, then the Borrower shall reimburse the Administrative Agent, on demand, in an amount in same day funds equal to the excess of
the amount of such L/C Disbursement over the aggregate amount of such Revolving Loans, if any, which are so received.Β Nothing in this Section 2.02(h) shall be deemed to relieve any Lender with a Revolving Commitment from its obligation to
make Revolving Loans on the terms and conditions set forth herein, and the Borrower shall retain any and all rights it may have against any such Lender resulting from the failure of such Lender to make such Revolving Loans under this Section
2.02(h).
(i)Β Β Β Β Β Β Β Β Obligations Absolute.Β The obligation of the Borrower to reimburse the Administrative Agent, on behalf of the Lenders,
for L/C Disbursements and to repay any Revolving Loans made by Lenders pursuant to Section 2.02(h) shall be absolute, unconditional and irrevocable and shall be paid strictly in accordance with the terms hereof under all circumstances
including any of the following circumstances:Β (i) any lack of validity or enforceability of any Letter of Credit; (ii) the existence of any claim, set-off, defense or other right which the Borrower or any Lender may have at any time against a
beneficiary or any transferee of any Letter of Credit (or any Persons for whom any such transferee may be acting), Administrative Agent, Lender or any other Person or, in the case of a Lender, against the Borrower, whether in connection herewith, the
transactions contemplated herein or any unrelated transaction (including any underlying transaction between the Borrower or one of its Subsidiaries and the beneficiary for which any Letter of Credit was procured); (iii) any draft or other document
presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; (iv) payment by the Administrative Agent under any Letter of Credit
against presentation of a draft or other document which does not substantially comply with the terms of such Letter of Credit; (v) any adverse change in the business, operations, properties, assets, condition (financial or otherwise) or prospects of
Holdings or any of its Subsidiaries; (vi) any breach hereof or of any other Loan Document by any party hereto or thereto; (vii) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing; or (viii) the fact that an
Event of Default or a Default shall have occurred and be continuing.
(j)Β Β Β Β Β Β Β Indemnification.Β Without duplication of any obligation of the Borrower under Section 10.04 or 10.05,
in addition to amounts payable as provided herein, the Borrower hereby agrees to protect, indemnify, pay and save harmless Administrative Agent from and against any
47
and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable fees, expenses and disbursements of one outside counsel) which the Administrative Agent may incur or be subject
to as a consequence, direct or indirect, of (i) the issuance or wrongful dishonor of any Letter of Credit by the Administrative Agent, other than as a result of the gross negligence or willful misconduct of the Administrative Agent as determined by a
final, non-appealable judgment of a court of competent jurisdiction or (ii) the failure of the Administrative Agent to honor a drawing under any such Letter of Credit as a result of any Governmental Act.
(k)Β Β Β Β Β Β Β Β Cash Collateralization.Β If (i) any Event of Default shall occur and be continuing, on the Business Day that the
Borrower receives notice from the Administrative Agent or the Required Lenders (or, if the Loans have been accelerated pursuant to Section 8.02, Lenders with L/C Exposure representing greater than 50% of the total L/C Exposure) demanding the
deposit of Cash Collateral pursuant to this paragraph, or (ii) at any time, the Letter of Credit Usage exceeds the Letter of Credit Sublimit, the Borrower shall deposit in an account with the Administrative Agent, in the name of the Administrative
Agent and for the benefit of the Lenders, an amount in cash equal to 103% of the L/C Exposure (less the Collateralized Letter of Credit Usage) as of such date in Dollars plus any accrued and unpaid interest thereon (or, in the case of clause (ii),
an amount in cash equal to 103% of such excess); provided that the obligation to deposit such Cash Collateral shall become effective upon notice from the Administrative Agent to the Borrower, provided, further,Β that the obligation to deposit such Cash Collateral shall become effective immediately and such deposit shall
become immediately due and payable, without demand or other notice of any kind, upon the occurrence of any Event of Default described in clause (f) or (g) of Section 8.01.Β Such deposit shall be held by the Administrative
Agent as collateral for the payment and performance of the Obligations with respect to the Non-Collateralized Letters of Credit.Β The Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over
such account.Β Other than any interest earned on the investment of such deposits, which investments shall be made at the option and sole discretion of the Administrative Agent and at the Borrowerβs risk and expense, such deposits shall not bear
interest.Β Interest or profits, if any, on such investments shall accumulate in such account.Β Moneys in such account shall be applied by the Administrative Agent to reimburse the Lenders for any drawing under a Letter of Credit for which they have
not been reimbursed and, to the extent not so applied, shall be held for the satisfaction of the reimbursement obligations of the Borrower for the L/C Exposure at such time or, if the Loans have been accelerated pursuant to Section 8.02 (but
subject to the consent of Lenders with L/C Exposure representing greater than 50% of the total L/C Exposure), be applied to satisfy other obligations of the Borrower under this Agreement.Β If the Borrower is required to provide an amount of Cash
Collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to the Borrower within three (3) Business Days after all Events of Default have been cured or waived.
(l)Β Β Β Β Β Β Β Β Β Collateralized Letters of Credit.
(i)Β Β Β Β Β Β Β Β Pursuant to Section 2.02(b), and subject to Section 2.02(a), the Borrower may decide,
prior to the issuance thereof, whether a Letter of Credit will be a Non-Collateralized Letter of Credit or a Collateralized Letter of Credit.
48
(ii)Β Β Β Β Β Β Β Β Cash and Eligible Securities provided and pledged to secure a Collateralized Letter of Credit must be
held in one or more Collateralized L/C Collateral Accounts, and such Cash and Eligible Securities will be held in such Collateralized L/C Collateral Accounts as collateral for the payment and performance of the Secured Obligations (as defined in the
Collateralized L/C Security and Control Agreements).Β The Administrative Agent will have exclusive dominion and control, including the exclusive right of withdrawal, over the Collateralized L/C Collateral Accounts as provided in the Collateralized
L/C Security and Control Agreements.Β Interest or profits, if any, on Cash and Eligible Securities held in a Collateralized L/C Collateral Account will accumulate in such Collateralized L/C Collateral Account.Β Cash and the proceeds of Eligible
Securities held in Collateralized L/C Collateral Accounts shall be applied by the Administrative Agent to reimburse the Lenders for any drawing under a Collateralized Letter of Credit for which they have not been reimbursed and, to the extent not so
applied, shall be held for the satisfaction of the reimbursement obligations of the Borrower for the Collateralized Letter of Credit Usage at such time.
(iii)Β Β Β Β Β If, on the last Business Day of any calendar month, the Collateralized L/C Aggregate Collateral Amount
exceeds the Minimum Collateralized L/C Aggregate Collateral Amount, then the Borrower may, within two (2) Business Days after such day, submit a written request to the Administrative Agent for the return of Cash and/or Eligible Securities held in
Collateralized L/C Collateral Accounts having Collateral Amounts, in the aggregate, equal to or less than such excess and identified by the Borrower in such written request (in the manner required by the applicable Collateralized L/C Security and
Control Agreement).Β The Administrative Agent shall, within two (2) Business Days after the date on which the Administrative Agent receives such written request from the Borrower, instruct the applicable Custodian(s) to transfer such Cash and/or
Eligible Securities to the Borrower; provided that, after giving effect to any such transfer, the Collateralized L/C Aggregate Collateral Amount shall equal or exceed the Minimum Collateralized L/C Aggregate
Collateral Amount.Β The Borrower shall have no right to request the return of, and the Administrative Agent shall have no obligation to instruct any Custodian to transfer, Cash and/or Eligible Securities having Collateral Amounts, in the aggregate,
of less than $100,000.
(iv)Β Β Β Β Β Β So long as no Event of Default has occurred and is continuing or would result therefrom, the Borrower may
submit a written request to the Administrative Agent for the substitution of Cash and/or Eligible Securities held in a Collateralized L/C Collateral Account and identified by the Borrower in such written request with Cash and/or Eligible Securities
to be held in such Collateralized L/C Collateral Account and identified by the Borrower in such written request (in the manner required by the applicable Collateralized L/C Security and Control Agreement).Β The Administrative Agent shall, within two
(2) Business Days after the date on which the Administrative Agent receives such written request from the Borrower, instruct the applicable Custodian to (i) receive from the Borrower for deposit to a Collateralized L/C Collateral Account Cash and/or
Eligible Securities identified by the Borrower in such written request and (ii) transfer Cash and/or Eligible Securities identified by the Borrower in such written request to the Borrower; provided that,
after giving effect to any such substitution, the Collateralized L/C Aggregate Collateral Amount shall equal or exceed the Minimum
49
Collateralized L/C Aggregate Collateral Amount.Β The Borrower shall have no right to request the substitution of, and the Administrative Agent shall have no obligation to instruct any Custodian to
substitute, Cash and/or Eligible Securities having Collateral Amounts, in the aggregate, of less than $100,000.
(v)Β Β Β Β Β Β So long as no Event of Default has occurred and is continuing or would result therefrom, the Borrower may
submit a written request to the Administrative Agent for the investment of cash held in a Collateralized L/C Collateral Account in Cash and/or Eligible Securities to be held in Collateralized L/C Collateral Accounts and identified by the Borrower in
such written request (in the manner required by the applicable Collateralized L/C Security and Control Agreement).Β The Administrative Agent shall, within two (2) Business Days after the date on which the Administrative Agent receives such written
request from the Borrower, instruct the applicable Custodian to invest such cash in Cash and/or Eligible Securities identified by the Borrower in such written request; provided that, after giving effect to
any such investment, the Collateralized L/C Aggregate Collateral Amount shall equal or exceed the Minimum Collateralized L/C Aggregate Collateral Amount.Β The Borrower shall have no right to request the investment of, and the Administrative Agent
shall have no obligation to instruct any Custodian to invest, cash having a Collateral Amount of less than $100,000.
(vi)Β Β Β Β Β The Borrower shall at all times cause the Collateralized L/C Aggregate Collateral Amount to equal or exceed
the Minimum Collateralized L/C Aggregate Collateral Amount at such time.Β If on any date the Minimum Collateralized L/C Aggregate Collateral Amount exceeds the Collateralized L/C Aggregate Collateral Amount (such excess, a βCollateralized L/C Collateral Deficiencyβ) (including as a result of any Collateralized L/C Security Invalidity), the Borrower shall, in no event later than the fifth (5th) Business Day immediately following the date on which the
Administrative Agent notifies the Borrower of such Collateralized L/C Collateral Deficiency (the βCollateralized L/C Collateral Deficiency Correction Dateβ), transfer to one or more Collateralized L/C
Collateral Accounts Cash and/or Eligible Securities so that the Collateralized L/C Aggregate Collateral Amount shall equal or exceed the Minimum Collateralized L/C Aggregate Collateral Amount; provided that
anything contained herein to the contrary notwithstanding, (i) unless the Borrower shall have notified the Administrative Agent prior to 10:00 a.m. (New York City time) on the Business Day immediately preceding the Collateralized L/C Collateral
Deficiency Correction Date that the Borrower intends to transfer to one or more Collateralized L/C Collateral Accounts Cash and/or Eligible Securities so that the Collateralized L/C Aggregate Collateral Amount shall equal or exceed the Minimum
Collateralized L/C Aggregate Collateral Amount, the Borrower shall be deemed to have given a timely Loan Notice to the Administrative Agent requesting Lenders with Revolving Commitments to make Revolving Loans that are Base Rate Loans on the
Collateralized L/C Collateral Deficiency Correction Date in an amount in Dollars equal to such Collateralized L/C Collateral Deficiency, and (ii) subject to satisfaction or waiver of the conditions specified in Section 4.02, Lenders with
Revolving Commitments shall, on the Collateralized L/C Collateral Deficiency Correction Date, make Revolving Loans that are Base Rate Loans in the amount of such Collateralized L/C Collateral Deficiency, the proceeds of which shall be transferred
directly by the Administrative Agent to a Collateralized L/C
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Collateral Account; provided, further, if for any reason (including, without limitation, by reason of exceeding
the Revolving Commitments) proceeds of Revolving Loans are not received by the Administrative Agent on the Collateralized L/C Collateral Deficiency Correction Date in an amount equal to the amount of such Collateralized L/C Collateral Deficiency,
then the Borrower shall, on the Collateralized L/C Collateral Deficiency Correction Date, pay to the Administrative Agent an amount in Dollars and in same day funds equal to the Collateralized L/C True-Up Amount with respect to all Letters of Credit
that are Collateralized Letters of Credit on such date.Β Upon receipt by the Administrative Agent of an amount in Dollars and in same day funds equal to the Collateralized L/C True-Up Amount with respect to all Letters of Credit that are
Collateralized Letters of Credit on such date, each Letter of Credit that is a Collateralized Letter of Credit on such date shall cease to be a Collateralized Letter of Credit for purposes of this Agreement and the Collateralized L/C Security
Documents and shall be a Non-Collateralized Letter of Credit as of such date.Β Nothing in this Section 2.02(l)(vi) shall be deemed to relieve any Lender with a Revolving Commitment from its obligation to make Revolving Loans on the terms and
conditions set forth herein, and the Borrower shall retain any and all rights it may have against any such Lender resulting from the failure of such Lender to make such Revolving Loans under this Section 2.02(l)(vi).
(m)Β Β Β Β Β Β Limited Fronting Lenders and Participating Lenders.Β In the event that, and for so long as, any Lender acts as a Limited
Fronting Lender on behalf of any Participating Lender:
(i)Β Β Β Β Β Β Β such Limited Fronting Lender, in reliance upon the obligations of such Participating Lender contained in
this Section 2.02(m), with respect to each Letter of Credit issued hereunder, (A) shall be an issuing bank under such Letter of Credit in place of such Participating Lender and (B) shall have a several (but not joint) obligation in respect of
an amount of such Letter of Credit equal to the sum of (1) such Limited Fronting Lenderβs Pro Rata Share of the aggregate undrawn amount of such Letter of Credit, plus (2) the product of the applicable
Limited Fronting Percentage and such Participating Lenderβs Pro Rata Share of the aggregate undrawn amount of such Letter of Credit;
(ii)Β Β Β Β Β Β Β Β by the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount
thereof) and without any further action on the part of such Limited Fronting Lender or such Participating Lender, such Limited Fronting Lender hereby grants to such Participating Lender, and such Participating Lender hereby acquires from such Limited
Fronting Lender, a participation in such Letter of Credit equal to the product of the applicable Limited Fronting Percentage and such Participating Lenderβs Pro Rata Share of the aggregate undrawn amount of such Letter of Credit.Β In consideration
and in furtherance of the foregoing, such Participating Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of such Limited Fronting Lender, the product of the applicable Limited Fronting Percentage
and such Participating Lenderβs Pro Rata Share of each L/C Disbursement made by such Limited Fronting Lender under such Letter of Credit and not reimbursed by the Borrower on the Reimbursement Date, or of any reimbursement payment required to be
refunded to the Borrower for any reason.Β Such Participating Lender acknowledges and agrees that its obligation to acquire participations pursuant to this Section 2.02(m)(ii)
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in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the
occurrence and continuance of a Default or Event of Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.Β To the extent that
such Participating Lender has made payments pursuant to this Section 2.02(m)(ii) to reimburse such Limited Fronting Lender in respect of any participation interests purchased hereunder in respect of any Letter of Credit, promptly following
receipt by the Administrative Agent of any payment from the Borrower pursuant to Section 2.02(h) in respect of such Letter of Credit, the Administrative Agent shall distribute such payment to such Limited Fronting Lender and such
Participating Lender, in each case as their interests may appear.Β Any payment made by such Participating Lender in respect of its participation pursuant to this paragraph to reimburse such Limited Fronting Lender for any payment made in any respect
of any drawing under a Letter of Credit shall not relieve the Borrower of its obligation to reimburse the amount of such drawing pursuant to the terms of this Agreement;
(iii)Β Β Β Β Β Β such Limited Fronting Lender shall not issue any Letter of Credit hereunder if such Participating Lender
is a Defaulting Lender unless such Limited Fronting Lender has entered into arrangements satisfactory to it with the Borrower and/or such Participating Lender to eliminate such Limited Fronting Lenderβs risk with respect to such Participating Lender
in respect of each Letter of Credit hereunder; and
(iv)Β Β Β Β Β Β any reference in this Agreement or any other Loan Document to the issuance by such Participating Lender of
a letter of credit pursuant to this Agreement shall be deemed to refer to the issuance by such Limited Fronting Lender of such letter of credit in place of such Participating Lender pursuant to this Section 2.02(m).
Section 2.03Β Β Β Β Β Β Pro Rata Shares.Β All Revolving Loans shall be
made, and all Letters of Credit issued, by Lenders simultaneously and proportionately to their respective Pro Rata Shares (subject to Section 2.02(m)), it being understood that no Lender shall be responsible for any default by any other
Lender in such other Lenderβs obligation to make a Revolving Loan or issue a Letter of Credit requested hereunder nor shall any Revolving Commitment of any Lender be increased or decreased as a result of a default by any other Lender in such other
Lenderβs obligation to make a Revolving Loan or issue a Letter of Credit requested hereunder, except, in each case, as provided in Section 2.02(d).
(a)Β Β Β Β Β Β Β Β Each conversion of Revolving Loans from one Interest Type to the other, and each continuation of Eurodollar Rate Loans, shall
be made upon the Borrowerβs irrevocable written notice to the Administrative Agent in the form of a Conversion/Continuation Notice, appropriately completed and signed by a Responsible Officer of the Borrower.Β Each such Conversion/Continuation Notice
must be received by the Administrative Agent not later than 12:00 noon (New York City time) three (3) Business Days prior to the requested date of any conversion to or continuation of Eurodollar Rate Loans or of any conversion of Eurodollar Rate
Loans to Base Rate Loans.Β Except as otherwise provided herein, a Eurodollar Rate Loan may be
52
continued or converted only on the last day of an Interest Period for such Eurodollar Rate Loan.Β The Administrative Agent shall determine the interest rate that shall apply to any converted or continued Eurodollar
Rate Loans pursuant to Section 2.07(c).
(b)Β Β Β Β Β Β Β Each Conversion/Continuation Notice shall specify (i) whether the Borrower is requesting a conversion of Revolving Loans from
one Interest Type to the other, or a continuation of Eurodollar Rate Loans, (ii) the requested date of the conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Revolving Loans to be converted
or continued, (iv) the Interest Type of Revolving Loans to which existing Revolving Loans are to be converted, and (v) if applicable, the duration of the Interest Period with respect thereto (each such Interest Period shall comply with the provisions
of the definition of βInterest Periodβ).
(c)Β Β Β Β Β Β Β Notwithstanding any contrary provision hereof, if (i) an Event of Default of the type described in Section 8.01(a), (f)
or (g) has occurred and is continuing, unless the Required Lenders otherwise consent or (ii) any other Event of Default has occurred and is continuing and the Required Lenders have so requested, each Revolving Loan will be converted into a
Base Rate Loan at the end of the Interest Period applicable thereto.
(a)Β Β Β Β Β Β Β Β Each Revolving Loan made by each Lender shall be evidenced by one or more loan accounts or records maintained by such Lender
and by the Administrative Agent in the ordinary course of business.Β The loan accounts or records maintained by the Administrative Agent and each Lender shall be conclusive evidence of the amount of the Revolving Loans made by the Lenders to the
Borrower and the interest and payments thereon absent manifest error.Β Any failure so to record or any error in doing so shall not, however, limit or otherwise affect the obligations of the Borrower hereunder to pay any amount owing with respect to
the Revolving Loans made to the Borrower.Β In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the Administrative Agent in respect of such matters, the accounts and records of the
Administrative Agent shall control in the absence of manifest error.
(b)Β Β Β Β Β Β Β Β Upon the request of any Lender made through the Administrative Agent, instead of or in addition to loan accounts, the
Revolving Loans made by each Lender may be evidenced by one or more Revolving Loan Notes.Β Each Lender shall endorse on the schedules annexed to its Revolving Loan Note the date, amount and maturity of each Revolving Loan deemed made by it and the
amount of each payment of principal made by the Borrower with respect thereto.Β Each such Lender is irrevocably authorized by the Borrower to endorse its Revolving Loan Note and each Lenderβs record shall be conclusive absent manifest error; provided that the failure of a Lender to make, or an error in making, a notation thereon with respect to the Revolving Loan shall not limit or otherwise affect the obligations of the Borrower hereunder or under
any such Revolving Loan Note to such Lender.
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(a)Β Β Β Β Β Β Β Β Optional Prepayments.Β The Borrower will have the right at any time to prepay any Loan in whole or in part, in minimum
amounts of $2,500,000 or any multiple of $1,000,000 in excess thereof, subject to the provisions of this Section 2.06.
(b)Β Β Β Β Β Β Β Β Voluntary Commitment Reductions.
(i)Β Β Β Β Β Β Β Β The Borrower may, upon not less than three (3) Business Daysβ prior written or telephonic notice to the
Administrative Agent (or such shorter period of time as may be agreed to by the Administrative Agent), at any time and from time to time terminate in whole or permanently reduce in part, without premium or penalty, the Revolving Commitments in an
amount up to the amount by which the Revolving Commitments exceed the Total Utilization of Revolving Commitments at the time of such proposed termination or reduction; provided that any such partial reduction
of the Revolving Commitments shall be in an aggregate minimum amount of $5,000,000 and integral multiples of $1,000,000 in excess of that amount.
(ii)Β Β Β Β Β Β The Borrowerβs notice to the Administrative Agent shall designate the date (which shall be a Business Day)
of such termination or reduction and the amount of any partial reduction, and shall reduce the Revolving Commitment of each Lender proportionately to its Pro Rata Share thereof.
(c)Β Β Β Β Β Β Β Β Mandatory Prepayments.Β The Borrower shall from time to time prepay the Revolving Loans and/or Cash Collateralize the
Letters of Credit to the extent necessary so that the Total Utilization of Revolving Commitments shall not at any time exceed the Revolving Commitments then in effect.
(d)Β Β Β Β Β Β Β Β Β Application of Prepayments.
(i)Β Β Β Β Β Β Β Β Β Any prepayment of the Revolving Loan pursuant to Section 2.06(a) shall be applied to repay
outstanding Revolving Loans owing by the Borrower making such prepayment to the full extent thereof.
(ii)Β Β Β Β Β Β Β Β Any prepayment of Revolving Loans pursuant to Section 2.06(c) shall be applied as follows:
(1)Β Β Β Β Β Β Β Β Β first, to prepay the Revolving Loans to the full extent thereof
without any permanent reduction of the Revolving Commitments; and
(2)Β Β Β Β Β Β Β Β second, to prepay outstanding reimbursement obligations with
respect to Letters of Credit without any permanent reduction of the Revolving Commitments;
(3)Β Β Β Β Β Β Β third, to Cash Collateralize Letters of Credit making such
prepayment without any permanent reduction of the Revolving Commitments; and
(4)Β Β Β Β Β Β Β Β Β fourth, to the Borrower.
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(e)Β Β Β Β Β Β Β Notice of Prepayments.Β The Borrower shall notify the Administrative Agent in the form of a Prepayment Notice of any
prepayment of any Loan hereunder not later than 12:00 noon (New York City time) one (1) Business Day before the date of prepayment.Β Each such Prepayment Notice shall be irrevocable (other than to the extent provided in connection with refinancing
the Obligations) and shall specify the prepayment date and the principal amount of each Loan or portion thereof to be prepaid.
(f)Β Β Β Β Β Β Β Application of Prepayments of Revolving Loans to Base Rate Loans and Eurodollar Rate Loans.Β Considering each Class of
Revolving Loans being prepaid separately, any prepayment thereof shall be applied first to Base Rate Loans to the full extent thereof before application to Eurodollar Rate Loans, in each case in a manner which minimizes the amount of any payments
required to be made by the Borrower pursuant to Section 3.04.
(a)Β Β Β Β Β Β Β Β Β Except as otherwise set forth herein, each Class of Revolving Loans shall bear interest on the unpaid principal amount
thereof from the date made through repayment (whether by acceleration or otherwise) thereof as follows:
(i)Β Β Β Β Β Β Β Β Β if a Base Rate Loan, at the Base Rate plus the Applicable
Margin; or
(ii)Β Β Β Β Β Β Β Β if a Eurodollar Rate Loan, at the Eurodollar Rate plus the
Applicable Margin.
(b)Β Β Β Β Β Β The basis for determining the rate of interest with respect to any Revolving Loan, and the Interest Period with respect to any
Eurodollar Rate Loan, shall be selected by the Borrower and notified to the Administrative Agent and Lenders pursuant to the applicable Loan Notice or Conversion/Continuation Notice, as the case may be; provided
that the Borrower may not select the Eurodollar Rate for any Credit Extension if the aggregate amount of such Credit Extension is less than $1,000,000.
(c)Β Β Β Β Β Β Β In connection with Eurodollar Rate Loans there shall be no more than eight (8) Interest Periods outstanding at any time.Β In
the event the Borrower fails to specify between a Base Rate Loan or a Eurodollar Rate Loan in the applicable Loan Notice or Conversion/Continuation Notice, such Revolving Loan (if outstanding as a Eurodollar Rate Loan) will be automatically converted
into a Base Rate Loan on the last day of the then-current Interest Period for such Revolving Loan (or if outstanding as a Base Rate Loan will remain as, or (if not then outstanding) will be made as, a Base Rate Loan).Β In the event the Borrower fails
to specify an Interest Period for any Eurodollar Rate Loan in the applicable Loan Notice or Conversion/Continuation Notice (or fails to deliver a Conversion/Continuation Notice within the time limits provided in Section 2.04(a)), the Borrower
shall be deemed to have selected an Interest Period of one (1) month.Β As soon as practicable after 10:00 a.m. (New York City time) on each Interest Rate Determination Date, the Administrative Agent shall determine (which determination shall, absent
manifest error, be final, conclusive and binding upon all parties) the interest rate that shall apply to the Eurodollar Rate Loans for which an interest rate is then being determined for the applicable Interest Period and shall promptly give notice
thereof (in writing or by telephone confirmed in writing) to the Borrower and each Lender.Β At any time that Base Rate
55
Loans are outstanding, the Administrative Agent shall notify the Borrower and the Lenders of any change in the Administrative Agentβs prime commercial lending rate used in determining the Base Rate promptly following
the public announcement of such change.
(d)Β Β Β Β Β Β Β The Borrower agrees to pay to each Lender, with respect to any L/C Disbursement on behalf of the Borrower, interest on the
amount paid by such Lender in respect of each such L/C Disbursement from the date of such L/C Disbursement to but excluding the date such amount is reimbursed by or on behalf of the Borrower at a rate equal to (i) for the period from the date of such
L/C Disbursement to but excluding the applicable Reimbursement Date, the rate of interest otherwise payable hereunder with respect to Revolving Loans that are Base Rate Loans, and (ii) thereafter, a rate which is 2.00% per annum in excess of the rate of interest otherwise payable hereunder with respect to Revolving Loans that are Base Rate Loans.
(e)Β Β Β Β Β Β Β Β Interest payable pursuant to Section 2.07(d) shall be computed on the basis of a year of 365 or 366 days, as the case
may be, and actual days elapsed in the period during which it accrues, and shall be payable in Dollars on demand or, if no demand is made, on the date on which the related drawing under a Letter of Credit is reimbursed in full.Β Promptly upon receipt
by the Administrative Agent of any payment of interest pursuant to Section 2.07(d), the Administrative Agent shall distribute to each Lender with respect to such L/C Disbursement such Lenderβs Pro Rata Share of any interest received by the
Administrative Agent in respect of such Lenderβs Pro Rata Share of such L/C Disbursement for the period from the date on which such L/C Disbursement was made by Lenders to but excluding the date on which such L/C Disbursement is reimbursed by the
Borrower.
(f)Β Β Β Β Β Β Β Β Notwithstanding the foregoing, if any principal of or interest on any Revolving Loan or any fee or other amount payable by
the Borrower pursuant to any Loan Document is not paid when due, whether upon acceleration or otherwise, such overdue amount shall, without further notice, bear interest, after as well as before judgment to the extent permitted by law, at a rate per annum equal to (i) in the case of overdue principal of any Revolving Loan, 2.00% plus the rate otherwise applicable to such Revolving Loan as provided in the preceding subsections of this Section 2.07
and (ii) in the case of any other amount, 2.00% plus the rate otherwise applicable to Base Rate Loans as provided in the preceding subsections of this Section 2.07.
(g)Β Β Β Β Β Β Β Β Interest on each Revolving Loan shall be paid in arrears by the Borrower on each Interest Payment Date for such Revolving
Loan; provided that (i) interest accrued pursuant to Section 2.07(f) shall be payable on demand of the Administrative Agent, (ii) upon any repayment or prepayment of any Revolving Loan, interest
accrued on the principal amount repaid shall be payable on the date of such repayment and (iii) upon any conversion of a Eurodollar Rate Loan before the end of the current Interest Period therefor, interest accrued on such Revolving Loan shall be
payable on the effective date of such conversion.
(h)Β Β Β Β Β Β Β Anything herein to the contrary notwithstanding, the obligations of the Borrower to any Lender hereunder shall be subject to
the limitation that payments of interest shall not be required for any period for which interest is computed hereunder to the extent (but only to the extent) that contracting for or receiving such payment by such Lender would be contrary to the
provisions of any law applicable to such Lender limiting the highest rate of interest that may be lawfully contracted for, charged or received by such Lender, and in such event the Borrower
56
shall pay such Lender interest at the highest rate permitted by applicable law until the total amount of interest due hereunder equals the amount of interest which would have been due hereunder if the stated rates of
interest set forth in this Agreement had at all times been in effect.Β In addition, if when the Revolving Loans made hereunder are repaid in full the total interest due hereunder (taking into account the increase provided for above) is less than the
total amount of interest which would have been due hereunder if the stated rates of interest set forth in this Agreement had at all times been in effect, then to the extent permitted by law, the Borrower shall pay to the Administrative Agent an
amount equal to the difference between the amount of interest paid and the amount of interest which would have been paid if the highest rate of interest that may be lawfully contracted for, charged or received had at all times been in effect.Β
Notwithstanding the foregoing, it is the intention of Lenders and the Borrower to conform strictly to any applicable usury laws.Β Accordingly, if any Lender contracts for, charges, or receives any consideration which constitutes interest in excess of
the highest rate of interest that may be lawfully contracted for, charged or received by such Lender, then any such excess shall be cancelled automatically and, if previously paid, shall at such Lenderβs option be applied to the outstanding amount of
the Revolving Loans made hereunder or be refunded to the Borrower.
(a)Β Β Β Β Β Β Β Β Β The Borrower agrees to pay to Lenders:
(i)Β Β Β Β Β Β Β Β commitment fees equal to (1) the average of the daily difference between (A) the Revolving Commitments and
(B) the aggregate principal amount of (x) all outstanding Revolving Loans plus (y) the Letter of Credit Usage, multiplied by (2) the Applicable Revolving Commitment
Fee Percentage;
(ii)Β Β Β Β Β Β letter of credit fees equal to (1) the Applicable Non-Collateralized Letter of Credit Fee, multiplied by (2) the average aggregate daily maximum amount available to be drawn under all Non-Collateralized Letters of Credit (regardless of whether any conditions for drawing could then be met and determined
as of the close of business on any date of determination, but in any event expressly including all Non-Collateralized Letters of Credit which may have been drawn, to the extent not yet reimbursed pursuant to Section 2.02(h)); and
(iii)Β Β Β Β Β letter of credit fees equal to (1) the Collateralized Letter of Credit Fee, multiplied by (2) the average aggregate daily maximum amount available to be drawn under all Collateralized Letters of Credit (regardless of whether any conditions for drawing could then be met and determined as of the close of
business on any date of determination, but in any event expressly including all Collateralized Letters of Credit which may have been drawn, to the extent not yet reimbursed pursuant to Section 2.02(h)).Β All fees referred to in this Section
2.08(a) shall be paid in Dollars to the Administrative Agent at the Administrative Agentβs Office and upon receipt, the Administrative Agent shall promptly distribute to each Lender (including each Participating Lender) its Pro Rata Share
thereof.
57
(b)Β Β Β Β Β Β Β Β The Borrower agrees to pay directly to the Administrative Agent, for its own account, the following fees:
(i)Β Β Β Β Β Β Β Β Β a letter of credit issuance fee of $[**] per Letter of Credit issued; and
(ii)Β Β Β Β Β Β Β Β such documentary and processing charges for any issuance, amendment, transfer or payment of a Letter of
Credit as are in accordance with the Administrative Agentβs standard schedule for such charges and as in effect at the time of such issuance, amendment, transfer or payment, as the case may be.
(c)Β Β Β Β Β Β Β All fees referred to in Section 2.08(a) and 2.08(b) shall be calculated pursuant to the second sentence of Section
2.09(a).Β The commitment fee referred to in Section 2.08(a)(i) shall be payable quarterly in arrears on the last Business Day of March, June, September and December of each year during the Revolving Commitment Period, commencing on the
first such date to occur after the Restatement Effective Date, and on the Commitment Termination Date.Β The fees referred to in Sections 2.08(a)(ii), 2.08(a)(iii) and 2.08(b) shall be payable quarterly in arrears on the last
Business Day of March, June, September and December of each year during the period from the Restatement Effective Date to but excluding the later of the Commitment Termination Date and the date on which there ceases to be any Letter of Credit Usage,
commencing on the first such date to occur after the Restatement Effective Date, and on the later of the Commitment Termination Date and the date on which there ceases to be any Letter of Credit Usage; provided
that any such fees accruing after such later date shall be payable on demand.
(d)Β Β Β Β Β Β Β Β In addition to the foregoing, the Borrower shall pay to the Administrative Agent for its own account, fees payable in the
amounts and at the times separately agreed upon by the Borrower and the Administrative Agent.Β Such fees shall be fully earned when paid and shall not be refundable under any circumstances.
(a)Β Β Β Β Β Β All computations of interest for Base Rate Loans when the Base Rate is determined by the Administrative Agentβs prime
commercial lending rate shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed.Β All other computations of fees and interest shall be made on the basis of a 360-day year and actual days elapsed.Β Interest
and fees shall accrue during each period in which such interest or fees are computed from the first day thereof to the last day thereof.
(b)Β Β Β Β Β Β Β Each determination of an interest rate by the Administrative Agent shall be conclusive and binding on the Borrower and the
Lenders in the absence of manifest error.Β The Administrative Agent will, at the request of the Borrower or any Lender, deliver to the Borrower or such Lender, as the case may be, a statement showing the quotations used by the Administrative Agent in
determining any interest rate and the resulting interest rate.
(a)Β Β Β Β Β Β Β All payments to be made by the Borrower under the Loan Documents shall be made without condition or deduction for any defense,
set-off, recoupment or counterclaim.
[**] = Certain information contained in this document, marked by β[**]β has been excluded because it is both (i) not
material and (ii) is the type that the registrant treats as private or confidential.
58
Except as otherwise expressly provided in any Loan Document, all payments to be made by the Borrower under any Loan Document shall be made to the Administrative Agent for the account of the Lenders at the
Administrative Agentβs Office, and shall be made in dollars and in immediately available funds, no later than 2:00 p.m. (New York City time) on the date specified in such Loan Document.Β The Administrative Agent will promptly distribute to each
Lender its Pro Rata Share (or other applicable share as expressly provided herein) of such payment in like funds as received.Β Any payment received by the Administrative Agent later than 2:00 p.m. (New York City time) shall be deemed to have been
received on the following Business Day and any applicable interest or fee shall continue to accrue.
(b)Β Β Β Β Β Β Β Β Subject to the provisions set forth in the definition of βInterest Periodβ herein, whenever any payment is due on a day other
than a Business Day, such payment shall be made on the following Business Day, and such extension of time shall in such case be included in the computation of interest or fees, as the case may be.
(c)Β Β Β Β Β Β Β Β Β Unless the Borrower or any Lender has notified the Administrative Agent, prior to the date any payment is required to be
made by it to the Administrative Agent hereunder, that the Borrower or such Lender, as the case may be, will not make such payment, the Administrative Agent may assume that the Borrower or such Lender, as the case may be, has timely made such payment
and may (but shall not be so required to), in reliance thereon, make available a corresponding amount to the Person entitled thereto.Β If and to the extent that such payment was not in fact made to the Administrative Agent in immediately available
funds, then:
(i)Β Β Β Β Β Β Β Β Β if the Borrower failed to make such payment, each Lender shall forthwith on demand repay to the
Administrative Agent the portion of such assumed payment that was made available to such Lender in immediately available funds, together with interest thereon in respect of each day from and including the date such amount was made available by the
Administrative Agent to such Lender to the date such amount is repaid to the Administrative Agent in immediately available funds at the Federal Funds Rate from time to time in effect; and
(ii)Β Β Β Β Β Β Β Β if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the
Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the
Administrative Agent (the βCompensation Periodβ) at the customary rate set by the Administrative Agent for the correction of errors among banks for three (3) Business Days and thereafter at the Base Rate.Β If
such Lender pays such amount to the Administrative Agent, then such amount (other than the interest thereon) shall constitute such Lenderβs Revolving Loan included in the applicable Credit Extension.Β If such Lender does not pay such amount forthwith
upon the Administrative Agentβs demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at
a rate per annum equal to the applicable rate for Base Rate Loans to the applicable Credit Extension.Β Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Revolving
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Commitments or to prejudice any rights that the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder.
A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this subsection (c) shall be conclusive, absent manifest error.
(d)Β Β Β Β Β Β Β Β If any Lender makes available to the Administrative Agent funds for any Revolving Loan to be made by such Lender as provided
in the foregoing provisions of this Article 2, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the extension of Revolving Loans set forth in Article 4 are not satisfied or
waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(e)Β Β Β Β Β Β Β Β The obligations of the Lenders hereunder to make Revolving Loans are several and not joint.Β The failure of any Lender to
make any Revolving Loan on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Revolving Loans.
(f)Β Β Β Β Β Β Β Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Revolving Loan in any particular place or
manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for the Revolving Loan in any particular place or manner.
(a)Β Β Β Β Β Β If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment (i) on account of any
Obligations due and payable hereunder and under the other Loan Documents at such time resulting in such Lender receiving payment in excess of its ratable share (calculated according to the proportion of (A) the amount of such Obligations due and
payable to such Lender at such time to (B) the aggregate amount of the Obligations due and payable to all Lenders hereunder and under the other Loan Documents at such time) of payments on account of the Obligations due and payable to all Lenders
hereunder and under the other Loan Documents at such time obtained by all the Lenders at such time or (ii) of or on account of any of Obligations owing (but not due and payable) to such Lender hereunder and under the other Loan Documents at such time
in excess of its ratable share (calculated according to the proportion of (A) the amount of such Obligations owing (but not due and payable) to such Lender at such time to (B) the aggregate amount of Obligations owing (but not due and payable) to all
Lenders hereunder and under the other Loan Documents at such time) of payments on account of Obligations owing (but not due and payable) to all Lenders hereunder and under the other Loan Documents at such time obtained by all the Lenders at such
time, then, in each case, such Lender shall (x) notify the Administrative Agent of such fact, and (y) purchase (for cash at face value) participations in the Obligations of the other Lenders due and payable or owing, as the case may be, or make such
other adjustments as shall be equitable, so that the benefit of such excess payments shall be shared by all such Lenders; provided that:
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(i)Β Β Β Β Β Β Β 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)Β Β Β Β Β Β Β the provisions of this Section 2.11 shall not be construed to apply to (1) any payment made by the
Borrower pursuant to and in accordance with the express terms of this Agreement or (2) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Loans to any assignee or participant.
(b)Β Β Β Β Β Β Β Β Each Credit Party consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any
Lender acquiring a participation pursuant to the foregoing arrangements may exercise against such Credit Party rights of set-off and counterclaim (subject to Section 10.09) with respect to such participation as fully as if such Lender were a
direct creditor of such Credit Party in the amount of such participation.
(a)Β Β Β Β Β Β Β Β Defaulting Lender Adjustments.Β 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)Β Β Β Β Β Β Β Β Defaulting Lender Waterfall.Β 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 8 or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section
10.09 shall be applied at such time or times as may be determined by the Administrative Agent as follows:Β first, to the payment of any amounts owing by such Defaulting Lender to the Administrative
Agent hereunder; second, as the Borrower may request (so long as no Default or Event of Default shall have occurred and be continuing), to the funding of any Revolving Loan or L/C Disbursement on a pro rata
basis 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; third, if so determined by the Administrative
Agent and the Borrower, to be held in a deposit account and released pro rata in order to satisfy such Defaulting Lenderβs potential future funding obligations with respect to Revolving Loans and L/C Disbursements on a pro rata basis under this
Agreement; fourth, to the payment of any amounts owing to the Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender against such Defaulting Lender as a result of such
Defaulting Lenderβs breach of its obligations under this Agreement; fifth, so long as no Event of Default shall have occurred and be continuing, 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 Lenderβs breach of its obligations under this Agreement; and sixth,
to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Revolving Loans or reimbursement
obligations with respect to Letters of Credit in respect of which such Defaulting Lender has not fully funded its appropriate
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share, and (y) such Revolving Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.02 were satisfied or waived, such payment
shall be applied solely to pay the Revolving Loans of, and reimbursement obligations with respect to Letters of Credit owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Revolving Loans of, or
reimbursement obligations with respect to Letters of Credit owed to, such Defaulting Lender until such time as all Revolving Loans and funded and unfunded Letters of Credit are held by the Lenders pro rata in accordance with the applicable Revolving
Commitments without giving effect to Section 2.12(a)(iii).Β 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 shall be deemed paid to and
redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(ii)Β Β Β Β Β Β Β Β Certain Fees.
(1)Β Β Β Β Β Β Β Β No Defaulting Lender shall be entitled to receive any fee pursuant to Section 2.08(a) 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).
(2)Β Β Β Β Β Β With respect to any fees not required to be paid to any Defaulting Lender pursuant to clause (1)
above, the Borrower shall (x) pay to each Non-Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lenderβs Pro Rata Share of Letters of Credit that has been reallocated to such
Non-Defaulting Lender pursuant to clause (iii) below and (y) not be required to pay the remaining amount of any such fee.
(iii)Β Β Β Β Β Reallocation of Letters of Credit.Β With respect to any Letter of Credit outstanding at the time
such Lender becomes a Defaulting Lender, with the consent of the beneficiary thereunder to the extent required under applicable law (including, if applicable, the Uniform Customs and Practices for Documentary Credits governing such Letter of Credit),
but only if there has not occurred and shall not be continuing any Default or Event of Default unless all Non-Defaulting Lenders shall otherwise agree, (A) all or any part of such Defaulting Lenderβs Pro Rata Share of the outstanding Obligations with
respect to Letters of Credit shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Shares but only to the extent (1) the sum of all Non-Defaulting Lendersβ Revolving Exposures plus such Defaulting Lenderβs
Revolving Exposure does not exceed the total of all Non-Defaulting Lendersβ Commitments and (2) the sum of each Non-Defaulting Lenderβs Revolving Exposure plus the amount of such Defaulting Lenderβs Revolving Exposure reallocated to such
Non-Defaulting Lender does not exceed such Non-Defaulting Lenderβs Commitment and (B) each such Letter of Credit shall be amended by the Administrative Agent to specify the Lenders that are parties to such Letter of Credit (excluding, for avoidance
of doubt, such Lender), after giving effect to such event, and such Lendersβ respective Pro Rata Shares as of the effective date of such amendment.Β Subject to Section 10.24, no reallocation pursuant to this Section 2.12(a)(iii) shall
constitute a
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waiver or release of any claim by any party hereto against such Defaulting Lender arising from such Lender becoming a Defaulting Lender.
(b)Β Β Β Β Β Β Β Defaulting Lender Cure.Β If the Borrower and the Administrative Agent 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 Revolving Loans and Letters of Credit of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to
cause the Revolving Loans and funded and unfunded Letters of Credit to be held pro rata by the Lenders in accordance with the applicable Revolving Commitments (without giving effect to Section 2.12(a)(iii)), 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 having been a Defaulting Lender.
(c)Β Β Β Β Β Β Β Β New Letters of Credit.Β So long as any Lender is a Defaulting Lender, the Pro Rata Shares of the Lenders in respect of
any newly issued Letter of Credit shall be allocated among Non-Defaulting Lenders in a manner consistent with Section 2.12(a)(iii) above (and such Defaulting Lender shall have no obligation under each such Letter of Credit to the extent such
Pro Rata Shares in respect thereof are so reallocated).
(d)Β Β Β Β Β Β Β Lender Counterparties.Β So long as any Lender is a Defaulting Lender, such Lender shall not be a contractual
counterparty with respect to any Guaranteed Swap Contract entered into while such Lender was a Defaulting Lender.
(a)Β Β Β Β Β Β Β The Borrower may from time to time, pursuant to the provisions of this Section 2.13, agree with one or more Lenders
holding Revolving Loans and Revolving Commitments of any Class to extend the maturity date of such Class of Loans and to provide for other terms consistent with this Section 2.13 (each such modification, an βExtensionβ)
pursuant to one or more written offers (each, an βExtension Offerβ) made from time to time by the Borrower to all Lenders under any Class that is proposed to be extended under this Section 2.13, in each
case on a pro rata basis (based on the relative principal amounts of the outstanding Revolving Commitments of each Lender in such Class) and on the same terms to each such Lender.Β In connection with each Extension, the Borrower will provide
notification to the Administrative Agent (for distribution to the Lenders of the applicable Class), no later than thirty (30) days prior to the maturity of the applicable Class or Classes to be extended of the requested new termination date for the
extended Revolving Loans and Revolving Commitments of each such Class (each, an βExtended Termination Dateβ) and the due date for Lender responses, which due date shall be no sooner than ten (10) Business Days
after delivery of such notice by the Borrower.Β In connection with any Extension, each Lender of the applicable Class wishing to participate in such Extension shall, prior to such due date, provide the Administrative Agent with
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a written notice thereof in a form reasonably satisfactory to the Administrative Agent.Β Any Lender that does not respond to an Extension Offer by the applicable due date shall be deemed to have rejected such
Extension.Β In connection with any Extension, the Borrower shall agree to such procedures, if any, as may be reasonably established by, or acceptable to, the Administrative Agent to accomplish the purposes of this Section 2.13.
(b)Β Β Β Β Β Β Β After giving effect to any Extension, the Revolving Commitments so extended shall cease to be a part of the Class of which
they were a part immediately prior to the Extension and shall be a new Class hereunder; provided that at no time shall there be more than four (4) different Classes of Revolving Commitments; provided, further, that, (i) all Credit Extensions and all prepayments of Revolving Loans shall continue to be made on a ratable basis among all Lenders, based on the
relative amounts of their Revolving Commitments, until the repayment of the Revolving Loans attributable to the non-extended Revolving Commitments on the applicable Commitment Termination Date, (ii) the allocation of the outstanding Obligations with
respect to any then-existing or subsequently issued or made Letter of Credit as between the Revolving Commitments of such new βClassβ and the remaining Revolving Commitments shall be made on a ratable basis in accordance with the relative amounts
thereof until the applicable Commitment Termination Date has occurred, (iii) no termination of Extended Revolving Commitments and no repayment of Extended Revolving Loans accompanied by a corresponding permanent reduction in Extended Revolving
Commitments shall be permitted unless such termination or repayment (and corresponding reduction) is accompanied by at least a pro rata termination or permanent repayment (and corresponding pro rata permanent reduction), as applicable, of the
Existing Revolving Loans and Existing Revolving Commitments (or all Existing Revolving Commitments of such Class and related Existing Revolving Loans shall have otherwise been terminated and repaid in full) and (iv) with respect to Letters of Credit,
the Commitment Termination Date with respect to the Revolving Commitments may not be extended without the prior written consent of the Administrative Agent.Β If the Total Utilization of Revolving Commitments exceeds the Revolving Commitments as a
result of the occurrence of the Commitment Termination Date (or the applicable Extended Termination Date with respect to any Class of Revolving Loans or Class of Revolving Commitments extended pursuant to this Section 2.13) while an extended
Class of Revolving Commitments remains outstanding, the Borrower shall make such payments as are necessary in order to eliminate such excess on such date.
(c)Β Β Β Β Β Β Β Β Β The consummation and effectiveness of each Extension shall be subject to the following:
(i)Β Β Β Β Β Β Β Β no Default or Event of Default shall have occurred and be continuing at the time any Extension Offer is
delivered to the Lenders or at the time of such Extension (after giving effect to such Extension);
(ii)Β Β Β Β Β Β Β the Revolving Loans or Revolving Commitments, as applicable, of any Lender extended pursuant to any
Extension (as applicable, βExtended Revolving Loansβ or βExtended Revolving Commitmentsβ) shall have the same terms as the Class of Revolving Loans or Revolving
Commitments, as applicable, subject to the related Extension Amendment (as applicable, βExisting Revolving Loansβ or βExisting Revolving Commitmentsβ); except (A) the
final maturity date of any Extended
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Revolving Commitments of a Class to be extended pursuant to an Extension may be later than the Latest Maturity Date at the time of such Extension, and the Weighted Average Life to Maturity of any
Extended Revolving Commitments of a Class to be extended pursuant to an Extension shall be no shorter than the Weighted Average Life to Maturity of the Class of Existing Revolving Commitments, as applicable, subject to the Latest Maturity Date at the
time of such Extension; (B) the all-in pricing (including, without limitation, margins, fees and premiums) with respect to the Extended Revolving Loans or Extended Revolving Commitments, as applicable, may be higher or lower than the all-in pricing
(including, without limitation, margins, fees and premiums) for the Existing Revolving Loans or Existing Revolving Commitments, as applicable; (C) the revolving credit commitment fee rate with respect to the Extended Revolving Commitments may be
higher or lower than the revolving credit commitment fee rate for Existing Revolving Commitments, in each case, to the extent provided in the applicable Extension Amendment; (D) no repayment of any Extended Revolving Loans or Extended Revolving
Commitments, as applicable, shall be permitted unless such repayment is accompanied by an at least pro rata repayment of all earlier maturing Loans (including previously extended Loans) (or all earlier maturing Loans (including previously extended
Loans) shall otherwise be or have been terminated and repaid in full); (E) the Extended Revolving Loans and/or Extended Revolving Commitments may contain a βmost favored nationβ provision for the benefit of Lenders holding Extended Revolving
Commitments; and (F) the other terms and conditions applicable to Extended Revolving Loans and/or Extended Revolving Commitments may be terms different than those with respect to the Existing Revolving Loans or Existing Revolving Commitments, as
applicable, so long as such terms and conditions only apply after the Latest Maturity Date; provided, further, that each Extension Amendment may, without the consent
of any Lender other than the applicable extending Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent and the Borrower, to give effect to the
provisions of this Section 2.13, including any amendments necessary to treat the applicable Loans and/or Revolving Commitments of the extending Lenders as a new βClassβ of loans and/or commitments hereunder; provided, however, that no Extension Amendment may provide for any Class of Extended Revolving Commitments to be secured by any assets of any Restricted Subsidiary that do not also secure the Existing Revolving
Commitments;
(iii)Β Β Β Β Β Β Β all documentation in respect of such Extension shall be consistent with the foregoing, and all written
communications by the Borrower generally directed to the applicable Lenders under the applicable Class in connection therewith shall be in form and substance consistent with the foregoing and otherwise reasonably satisfactory to the Administrative
Agent;
(iv)Β Β Β Β Β a minimum amount in respect of such Extension (to be determined in the Borrowerβs discretion and specified
in the relevant Extension Offer, but in no event less than $50,000,000, unless another amount is agreed to by the Administrative Agent in its reasonable discretion) shall be satisfied; and
(v)Β Β Β Β Β Β Β Β no Extension shall become effective unless, on the proposed effective date of such Extension, the conditions precedent set forth in
Section 4.02(a), (b) and (c) shall
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be satisfied (with all references in such Section to the making of a Loan being deemed to be references to the Extension on the applicable date of such Extension), and the Administrative Agent shall
have received a certificate to that effect dated the applicable date of such Extension and executed by a Responsible Officer of the Borrower.
(d)Β Β Β Β Β Β Β Β For the avoidance of doubt, it is understood and agreed that the provisions of Section 2.08 and Section 10.04
will not apply to any payment of interest or fees in respect of any Extended Revolving Commitments that have been extended pursuant to an Extension at a rate or rates different from those paid or payable in respect of Revolving Loans of any other
Class, in each case as is set forth in the relevant Extension Offer made pursuant to and in accordance with the provisions of this Section 2.13 with respect to such Extensions of Revolving Commitments.
(e)Β Β Β Β Β Β Β Β Β No Lender who rejects any request for an Extension shall be deemed a Non-Consenting Lender for purposes of Section 10.14.
(f)Β Β Β Β Β The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments (collectively, βExtension Amendmentsβ) to this Agreement and the other Loan Documents as may be necessary in order to establish new Classes of Revolving Commitments created pursuant to an Extension, in each case on terms
consistent with this Section 2.13, so long as the Lenders shall have received at least five (5) Business Daysβ prior written notice of any Extension Amendment and the Administrative Agent shall not have received, within five (5) Business Days
of the date of such notice to the Lenders, a written notice from the Required Lenders stating that the Required Lenders object to such Extension Amendment; provided, that all such Extension Amendments entered
into with the Borrower by the Administrative Agent hereunder shall be binding on the Lenders.Β Without limiting the foregoing, in connection with any Extension, (i) the Borrower and the appropriate Guarantors and Subsidiaries shall (at their expense)
amend (and the Administrative Agent is hereby directed to amend) any Loan Document that the Administrative Agent reasonably requests to be amended to reflect the then latest Extended Termination Date and (ii) the Borrower and the appropriate
Guarantors and Subsidiaries shall deliver such board resolutions, secretaryβs certificates, officerβs certificates and other documents as shall reasonably be requested by the Administrative Agent in connection therewith and, if requested by the
Administrative Agent, a legal opinion of counsel in form and substance reasonably acceptable to the Administrative Agent.
(g)Β Β Β Β Β Β Β Β Promptly following the consummation and effectiveness of any Extension, the Borrower will furnish to the Administrative Agent
(who shall promptly furnish to each Lender) written notice setting forth the Extended Termination Date and material economic terms of the Extension and the aggregate principal amount of each Class of Revolving Loans and Revolving Commitments after
giving effect to the Extension and attaching a copy of the fully executed Extension Amendment.
Section 2.14Β Β Β Β Β Β Β Provisions Relating to NAIC Approved Banks.Β If,
at any time from and after the Restatement Effective Date, any Lender is not or ceases to be a NAIC Approved Bank, such Lender shall promptly notify the Borrower and the Administrative Agent thereof.Β Each Lender agrees to use commercially reasonable
efforts, at all times from and after the Restatement Effective Date, (a) to be a NAIC Approved Bank or (b) if such Lender is not or ceases to be a NAIC Approved Bank, (i) to maintain in effect a Confirming Bank Agreement with a
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Confirming Bank (which Confirming Bank (if not a Lender), prior to entering into such Confirming Bank Agreement, shall be subject to the prior written consent of the Borrower and the Administrative Agent (such
consent, in each case, not to be unreasonably withheld)) upon such terms and conditions as such parties may agree or (ii) to maintain in effect a Limited Fronting Lender Agreement with a Limited Fronting Lender upon such terms and conditions as such
parties may agree.Β In the event that any Person (including any other Lender) agrees to act as a Confirming Bank or a Limited Fronting Lender for any Lender which is a Non-NAIC Approved Bank, such other Person shall receive such compensation therefor
as such Non-NAIC Approved Bank and such Person may agree.Β If any Lender shall enter into a Confirming Bank Agreement or a Limited Fronting Lender Agreement hereunder at any time, it shall promptly furnish a copy thereof to the Borrower and the
Administrative Agent and, thereafter, promptly notify the Borrower and the Administrative Agent of the termination or expiration of such Confirming Bank Agreement or Limited Fronting Lender Agreement, as the case may be.Β Notwithstanding anything
herein to the contrary, no Lender shall have any obligation to agree to act hereunder as a Confirming Bank or a Limited Fronting Lender for any other Lender.
(a)Β Β Β Β Β Β Β Β The Borrower may, by written notice to the Administrative Agent, elect to request prior to the Commitment Termination Date,
an increase to the then-existing Revolving Commitments (any such increase, βNew Revolving Commitmentsβ), by an amount not in excess of the Increase Amount at such time and not less than $10,000,000 individually
(or such lesser amount which shall be approved by the Administrative Agent or such lesser amount that shall equal the Increase Amount at such time), and integral multiples of $1,000,000 in excess of that amount.Β Each such notice shall specify (A)
the date (each, an βIncreased Amount Dateβ) on which the Borrower proposes that the New Revolving Commitments shall be effective, which shall be a date not less than 10 Business Days after the date on which
such notice is delivered to the Administrative Agent and (B) the identity of each Lender or other Person that is an Eligible Assignee (each, a βNew Revolving Loan Lenderβ) to whom the Borrower proposes any
portion of such New Revolving Commitments be allocated and the amounts of such allocations; provided that the Administrative Agent may elect or decline to arrange such New Revolving Commitments in its sole
discretion and any Lender approached to provide all or a portion of the New Revolving Commitments may elect or decline, in its sole discretion, to provide a New Revolving Commitment.Β Such New Revolving Commitments shall become effective as of such
Increased Amount Date; provided that (1) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Revolving Commitments; (2) all of the
representations and warranties contained herein or in any Loan Document (other than the representations and warranties contained in Sections 5.05 and 5.11(d)) shall be true and correct in all material respects on and as of such
Increased Amount Date to the same extent as though made on and as of such Increased Amount Date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall
have been true and correct in all material respects on and as of such earlier date; provided that, in each case, such materiality qualifier shall not be applicable to any representations and warranties that
already are qualified or modified by materiality in the text thereof, (3) Holdings and its Subsidiaries shall be in pro forma compliance with Sections 7.10 and 7.11 as of the last day of the most recently ended Fiscal Quarter after
giving effect to such New Revolving Commitments; (4) all New Revolving Commitments shall be effected pursuant
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to one or more Joinder Agreements executed and delivered by the Borrower, the New Revolving Loan Lender and the Administrative Agent, each of which shall be recorded in the Register and each New Revolving Loan Lender
shall be subject to the requirements set forth in Section 3.01(e); (5) Holdings shall make any payments required pursuant to Section 3.04 in connection with the New Revolving Commitments; and (6) the Borrower shall deliver or cause to
be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction.
(b)Β Β Β Β Β Β Β On any Increased Amount Date on which New Revolving Commitments are effected, subject to the satisfaction of the foregoing
terms and conditions, (i) (x) each of the Revolving Lenders shall assign to each of the New Revolving Loan Lenders, and each of the New Revolving Loan Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such
interests in the Revolving Loans outstanding on such Increased Amount Date and (y) each outstanding Letter of Credit shall be amended in accordance with the procedures set forth in Section 2.02(d), in each case as shall be necessary in order
that, after giving effect to all such assignments and purchases, the Revolving Exposure will be held by then-existing Revolving Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Commitments after giving effect to the
addition of such New Revolving Commitments to the Revolving Commitments, (ii) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder (a βNew Revolving Loanβ)
shall be deemed, for all purposes, a Revolving Loan and (iii) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Commitment and all matters relating thereto.Β For the avoidance of doubt, the terms and provisions of
the New Revolving Loans and New Revolving Commitments shall be documented solely as an increase, and shall be identical, to the then-existing Revolving Commitments.
The Administrative Agent shall notify Lenders promptly upon receipt of the Borrowerβs notice of each Increased Amount Date and in respect thereof (x) the New Revolving Commitments and the New Revolving Loan Lenders,
and (y) the respective interests in such Lenderβs Revolving Loans, in each case subject to the assignments contemplated by this Section 2.15.
Taxes, Yield Protection and Illegality
(a)Β Β Β Β Β Β Β Payments Free of Indemnified Taxes and Other Taxes.Β Any and all payments by or on account of any obligation of any
Credit Party hereunder or under any other Loan Document shall be made free and clear of and without deduction or withholding for any Taxes, provided that if any applicable withholding agent shall be required
by applicable law to deduct or withhold any Taxes from such payments, then (i) the applicable withholding agent shall make such deductions or withholdings, (ii) the applicable withholding agent shall timely pay the full amount deducted or withheld to
the relevant Governmental Authority in accordance with applicable law and (iii) if such Tax is an Indemnified Tax, the sum payable by the applicable Credit Party shall be increased as necessary so that after all required deductions or withholdings
have been made (including deductions applicable to additional sums payable under this Section 3.01) the
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Administrative Agent or Lender, as the case may be, receives an amount equal to the sum it would have received had no such deductions or withholdings been made.
(b)Β Β Β Β Β Β Β Β Payment of Other Taxes by the Borrower.Β Without limiting the provisions of subsection (a) above, the Borrower
shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law.
(c)Β Β Β Β Β Β Β Β Indemnification by the Borrower.Β Without duplication of the provisions of subsection (a) above, the Borrower
shall indemnify the Administrative Agent and each Lender, within ten (10) Business Days after written demand therefor, for the full amount of any Indemnified Taxes in respect of payments under any Loan Document (including Indemnified Taxes imposed on
or attributable to amounts payable under this Section 3.01) that are imposed on or payable by the Administrative Agent or such Lender, as the case may be, and reasonable expenses arising therefrom, whether or not such Indemnified Taxes were
correctly or legally imposed or asserted by the relevant Governmental Authority; provided, that the Borrower shall not be required to indemnify the Administrative Agent or a Lender pursuant to this Section
3.01 for any Indemnified Taxes to the extent that such recipient fails to notify the Borrower within 270 days after the date on which such Person has made payment of such Indemnified Taxes; provided, further, that, if the Indemnified Taxes imposed or asserted giving rise to such claims are retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect
thereof.Β A certificate setting forth the amount of such payment or liability delivered to the Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be
conclusive absent manifest error.
(d)Β Β Β Β Β Β Β Evidence of Payments.Β As soon as practicable after any payment of Indemnified Taxes by any Credit Party to a
Governmental Authority, the Borrower shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment or other evidence of such payment reasonably satisfactory to
the Administrative Agent.
(e)Β Β Β Β Β Β Β Β Status of Lenders.Β Each Lender shall deliver to the Borrower and to the Administrative Agent, whenever reasonably
requested by the Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by applicable laws and such other reasonably requested information as will permit the Borrower or the Administrative Agent, as the
case may be, (A) to determine whether or not payments made hereunder or under any other Loan Document are subject to Taxes, (B) to determine, if applicable, the required rate of withholding or deduction and (C) to establish such Lenderβs entitlement
to any available exemption from, or reduction of, applicable Taxes in respect of any payments to be made to such Lender pursuant to any Loan Document or otherwise to establish such Lenderβs status for withholding tax purposes in an applicable
jurisdiction.Β If any form, certification or other documentation provided by a Lender pursuant to this Section 3.01(e) (including any of the specific documentation described below) expires or becomes obsolete or inaccurate in any respect,
such Lender shall promptly notify the Borrower and the Administrative Agent in writing and shall promptly update or otherwise correct the affected documentation or promptly notify the
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Borrower and the Administrative Agent in writing that such Lender is not legally eligible to do so.
Without limiting the generality of the foregoing,
(A)Β Β Β Β Β Β Β any Lender that is a βUnited States personβ within the meaning of Section 7701(a)(30) of the Code shall deliver to the
Borrower and the Administrative Agent duly completed and executed copies of IRS Form Wβ9 or such other documentation or information prescribed by applicable laws or reasonably requested by the Borrower or the Administrative Agent (in such number of
copies as shall be requested by the recipient) on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon request of the Borrower or the Administrative Agent) as will enable the Borrower
or the Administrative Agent, as the case may be, to determine that such Lender is not subject to U.S. federal backup withholding or information reporting requirements;
(B)Β Β Β Β Β Β each Foreign Lender that is entitled under the Code or any applicable treaty to an exemption from or reduction of U.S. federal
withholding tax with respect to any payments hereunder or under any other Loan Document shall deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such
Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the request of the Borrower or the Administrative Agent), duly completed and executed copies of whichever of the following is applicable:
(i)Β Β Β Β Β Β Β Β Β IRS Form Wβ8BEN or W-8BEN-E claiming eligibility for benefits of an income tax treaty to which the United
States is a party,
(ii)Β Β Β Β Β Β Β IRS Form Wβ8ECI (or any successor thereto) claiming that specified payments (as applicable) under this
Agreement or any other Loan Documents (as applicable) constitute income that is effectively connected with such Foreign Lenderβs conduct of a trade or business in the United States,
(iii)Β Β Β Β Β Β in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under
Section 881(c) of the Code (the βPortfolio Interest Exemptionβ), (x) a certificate (a βTax Status Certificateβ), substantially in the form of Exhibit F-1, to the
effect that such Foreign Lender is not (1) a βbankβ within the meaning of Section 881(c)(3)(A) of the Code, (2) a β10 percent shareholderβ of the Borrower, within the meaning of Section 881(c)(3)(B) of the Code or (3) a βcontrolled foreign
corporationβ described in Section 881(c)(3)(C) of the Code, and that no interest to be received is effectively connected with a U.S. trade or business and (y) IRS Form Wβ8BEN or W-8BEN-E,
(iv)Β Β Β Β Β Β Β Β Β Β Β Β where such Lender is a partnership (for U.S. federal income tax purposes) or otherwise not a beneficial
owner (e.g., where such Lender has sold a participation), IRS Form Wβ8IMY (or any successor thereto), a Tax Status Certificate substantially in the form of Exhibit F-2 or Exhibit F-4 and all required supporting documentation
(including, where one or more of the underlying beneficial owner(s) is claiming the benefits of the Portfolio Interest Exemption, a Tax Status Certificate of such beneficial
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owner(s); provided that, if the Foreign Lender is a partnership and not a participating Lender, a Tax Status Certificate substantially in the form of Exhibit
F-3 from the beneficial owner(s) shall be provided by the Foreign Lender on behalf of the beneficial owner(s)), or
(v)Β Β Β Β Β Β Β any other form prescribed by applicable laws as a basis for claiming exemption from or a reduction in
United States federal withholding tax together with such supplementary documentation as may be prescribed by applicable laws to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(C)Β Β Β Β Β Β Β Β each Lender shall deliver to the Borrower and the Administrative Agent (in such number of duly completed and executed copies
as shall be requested by the recipient), at such time or times reasonably requested by the Borrower or the Administrative Agent, such documentation prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent (1)
to comply with the Borrowerβs and/or Administrative Agentβs obligations under FATCA, (2) to determine that such Lender has complied with such Lenderβs obligations under FATCA and/or (3) to determine the amount to deduct and withhold from any payment
under this Agreement or the other Loan Documents pursuant to FATCA.Β Solely for purposes of this clause (C), βFATCAβ shall include any amendments made to FATCA after the date of this Agreement.
Notwithstanding anything to the contrary in this Section 3.01(e), no Lender shall be required to deliver any documentation that it is not legally eligible to provide.
(f)Β Β Β Β Β Β Β Status of Administrative Agent.Β The Administrative Agent shall deliver the following to the Borrower on or before the
date on which it becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower):Β (1) if the Administrative Agent is not acting through a U.S. office, (x) executed copies of IRS
Form Wβ8BEN-E with respect to any amounts payable to the Administrative Agent for its own account and (y) executed copies of IRS Form Wβ8IMY, accompanied by IRS Form Wβ8ECI, IRS Form Wβ8BEN, IRS Form Wβ8BEN-E, and/or other certification documents
from each beneficial owner, as applicable with respect to any amounts payable to the Administrative Agent for the account of others; provided, however, that no additional amounts for non-U.S. Taxes and non-U.S. Other Taxes shall be
payable by the Borrower under Section 3.01 or Section 3.03(a) if such additional amounts or Other Taxes would not have been payable had the Administrative Agent acted through a U.S. office; provided, further, that such
additional amounts for Taxes and Other Taxes shall be payable in accordance with Section 3.01 and Section 3.03(a) to the extent that such Taxes that are payable as a result of a change in law that occurred after the date hereof; and
(2) if the Administrative Agent is acting through a U.S. office, (x) executed copies of IRS Form Wβ8ECI with respect to any amounts payable to the Administrative Agent for its own account and (y) executed copies of IRS Form Wβ8IMY with respect to any
amounts payable to the Administrative Agent for the account of others, certifying that it is a βU.S. branch,β that the payments its receives for the account of others are not effectively connected with the conduct of its trade or business within the
United States and that it is using such form as evidence of its agreement with the Borrower to be treated as a U.S. person with respect to such payments (and the Borrower and the Administrative Agent agree to so treat
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the Administrative Agent as a U.S. person with respect to such payments as contemplated by Section 1.1441-1(b)(2)(iv) of the United States Treasury Regulations).
(g)Β Β Β Β Β Β Treatment of Certain Refunds.Β If the Administrative Agent or any Lender determines, in its good faith discretion, that
it has received a refund in cash of any Indemnified Taxes as to which it has been indemnified by a Credit Party or with respect to which a Credit Party has paid additional amounts pursuant to this Section 3.01, it shall promptly pay to the
Borrower an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by a Credit Party under this Section 3.01 with respect to the Indemnified Taxes giving rise to such refund), net of all
out-of-pocket expenses of the Administrative Agent or such Lender (including any Taxes), as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that the Borrower, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to the Borrower (plus any penalties, interest or other charges imposed by the relevant
Governmental Authority (other than any penalties arising from the gross negligence or willful misconduct of the Administrative Agent or the Lender as determined in a final, non-appealable judgment by a court of competent jurisdiction)) to the
Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority.Β Such Lender or Administrative Agent, as the case may be, shall, at the Borrowerβs reasonable
request, provide the Borrower with a copy of any notice of assessment or other evidence reasonably satisfactory to the Borrower of the requirement to repay such refund received from the relevant taxing authority.Β This subsection shall not be
construed to require the Administrative Agent, or any Lender to make available its tax returns (or any other information relating to its taxes that it deems confidential) to the Borrower or any other Person.
(a)Β Β Β Β Β Β Β If any Lender reasonably and in good faith determines that the introduction of any Requirement of Law, or any change in any
Requirement of Law, or in the interpretation or administration of any Requirement of Law, after the Restatement Effective Date, has made it unlawful, or that any central bank or other Governmental Authority has asserted that it is unlawful, for any
Lender or its applicable Lending Office to make Eurodollar Rate Loans, then, on notice thereof by the Lender to the Borrower through the Administrative Agent, any obligation of that Lender to make Eurodollar Rate Loans shall be suspended until the
Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer exist.
(b)Β Β Β Β Β Β Β Β If a Lender reasonably and in good faith determines that it is unlawful for such Lender to maintain any Eurodollar Rate Loan
after the Restatement Effective Date, on notice thereof by the Lender to the Borrower through the Administrative Agent, such Eurodollar Rate Loans of that Lender then outstanding, either on the last day of the Interest Period thereof, if the Lender
may lawfully continue to maintain such Eurodollar Rate Loans to such day, or immediately, if the Lender may not lawfully continue to maintain such Eurodollar Rate Loan, shall convert to a Base Rate Loan on such applicable date and within three (3)
Business Days after the Borrowerβs receipt of such notice the Borrower shall pay to the applicable Lender
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accrued interest on such Eurodollar Rate Loan along with all amounts required under Section 3.04.
(c)Β Β Β Β Β Β Β Β Β If the obligation of any Lender to make or maintain Eurodollar Rate Loans has been so terminated or suspended, the Borrower
may elect, by giving notice to the Lenders through the Administrative Agent, that all Revolving Loans which would otherwise be made or maintained by the Lenders as Eurodollar Rate Loans shall instead be Base Rate Loans.
(d)Β Β Β Β Β Β Β If any Lender gives a notice pursuant to this Section 3.02, then such Lender shall use reasonable efforts to designate
a different Lending Office for funding or booking its Eurodollar Rate 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 the need for the notice pursuant to this Section 3.02, and (ii) in each case, would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender in any
material economic, legal or regulatory respect.
(a)Β Β Β Β Β Β If any Lender reasonably and in good faith determines that, due to either (i) the introduction of or any change in or in the
interpretation of any law or regulation or (ii) the compliance by that Lender with any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law) after the later of (x) the Restatement
Effective Date and (y) the date such Lender becomes a party to this Agreement, there shall be any increase in the cost (including Taxes, other than (i) Taxes described in clauses (b) and (c) of the definition of βExcluded Taxesβ, (ii)
Connection Income Taxes and (iii) Indemnified Taxes) to such Lender of agreeing to make or making, funding or maintaining any Loans or participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligations to participate in
or issue any Letter of Credit), or any reduction in the amount of any sum received or receivable by such Lender, then the Borrower shall be liable for, and shall from time to time, promptly upon written demand (with a copy of such demand to be sent
to the Administrative Agent), pay to the Administrative Agent for the account of such Lender, additional amounts as are sufficient to compensate such Lender for such increased costs or reduction suffered, to the extent such Lender is imposing such
costs on borrowers that are similarly situated to the Borrower with respect to whom such Lender has similar rights of compensation.
(b)Β Β Β Β Β Β Β Β If any Lender reasonably and in good faith shall have determined that (i) the introduction of any Capital Adequacy
Regulation, (ii) any change in any Capital Adequacy Regulation, (iii) any change in the interpretation or administration of any Capital Adequacy Regulation by any central bank or other Governmental Authority charged with the interpretation or
administration thereof, or (iv) compliance by the Lender (or its Lending Office) or any corporation controlling the Lender with any Capital Adequacy Regulation, in each case after the later of (x) the Restatement Effective Date and (y) the date such
Lender becomes a party to this Agreement, affects or would affect the amount of capital or liquidity required or expected to be maintained by the Lender or any corporation controlling the Lender and (taking into consideration such Lenderβs or such
corporationβs policies with respect to capital adequacy or
73
liquidity and such Lenderβs desired return on capital) determines that the amount of such capital or liquidity is increased as a consequence of its Revolving Commitment, loans, credits or obligations under this
Agreement, then, thirty (30) days after written demand by such Lender to the Borrower through the Administrative Agent, the Borrower shall pay to the Lender, from time to time as specified by the Lender, additional amounts sufficient to compensate
the Lender for such increase, to the extent such Lender is employing such increase with respect to borrowers that are similarly situated to the Borrower with respect to whom such Lender has similar rights of compensation.
(c)Β Β Β Β Β Β Β Notwithstanding anything herein to the contrary, for all purposes of the Loan Documents, all requests, rules, guidelines or
directives concerning liquidity and capital adequacy issued by any United States regulatory authority (i) under or in connection with the implementation of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and (ii) in connection with the
implementation of the recommendations of the Bank for International Settlements or the Basel Committee on Banking Regulations and Supervisory Practices (or any successor or similar authority), in each case pursuant to Basel III, regardless of the
date adopted, issued, promulgated or implemented are deemed to have been adopted and to have taken effect after the date hereof and after the date any Lender becomes a party to this Agreement.
(d)Β Β Β Β Β Β Β The Borrower shall not be required to compensate any Lender pursuant to this Section 3.03 for any increased costs or
reduced returns to the extent such Lender makes written demand on the Borrower for compensation later than 270 days after the date any such increased cost or reduced return is incurred; provided that, if the
change in law giving rise to any such increased cost or reduced giving rise to such claims are retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereof.Β A certificate setting forth
the amount of such increased costs or reduced returns delivered to the Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest
error.
Section 3.04Β Β Β Β Β Β Β Funding Losses.Β The Borrower shall reimburse
each Lender and hold each Lender harmless from any loss (other than loss of profits or the Applicable Margin), expense or liability which the Lender may sustain or incur as a consequence of:
(a)Β Β Β Β Β Β Β Β Β the failure of the Borrower to make on a timely basis any payment of principal of any Eurodollar Rate Loan;
(b)Β Β Β Β Β Β the failure of the Borrower to continue a Eurodollar Rate Loan after the Borrower has given (or is deemed to have given) a
Conversion/Continuation Notice thereof;
(c)Β Β Β Β Β Β Β Β the failure of the Borrower to make any prepayment of a Eurodollar Rate Loan in accordance with any notice of prepayment
given by the Borrower;
(d)Β Β Β Β Β Β Β the prepayment (including pursuant to Section 2.06) or other payment (including after acceleration thereof) of a
Eurodollar Rate Loan on a day that is not the last day of the relevant Interest Period;
(e)Β Β Β Β Β Β Β Β a Credit Extension of any Eurodollar Rate Loan does not occur on a date specified therefor in a Loan Notice delivered by or
on behalf of the Borrower, or a conversion to or
74
continuation of any Eurodollar Rate Loan does not occur on a date specified therefor in a Conversion/Continuation Notice delivered by or on behalf of the Borrower; or
(f)Β Β Β Β Β Β Β Β any conversion of any of its Eurodollar Rate Loans occurring on a date prior to the last day of an Interest Period applicable
to the Revolving Loan;
including any such loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain its Eurodollar Rate Loans or from fees payable to terminate the deposits from which such funds were
obtained, but excluding any administrative fee or other amount chargeable by such Lender for the calculation of such loss.
Section 3.05Β Β Β Β Β Β Β Inability to Determine Rates.Β (a)Β If the
Required Lenders determine that for any reason adequate and reasonable means do not exist for determining the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan, or that the Eurodollar Rate for any
requested Interest Period with respect to a proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost to such Lenders of funding such Revolving Loan, the Administrative Agent will promptly so notify the Borrower and each Lender.Β
Thereafter, the obligation of the Lenders to make or maintain Eurodollar Rate Loans shall be suspended until the Administrative Agent (upon the instruction of the Required Lenders) revokes such notice in writing.Β Upon receipt of such notice, the
Borrower may revoke any notice of continuation then submitted by it pursuant to Section 2.04.Β If the Borrower does not revoke such notice of continuation, the Lenders shall make, convert or continue the Revolving Loans, as proposed by the
Borrower, in the amount specified in the applicable notice submitted by the Borrower, but such Revolving Loans shall be made, converted or continued as Base Rate Loans instead of Eurodollar Rate Loans.
(b)Β Β Β Β Β Notwithstanding the foregoing, if the Administrative Agent (i) determines in its reasonable judgment that the circumstances
described in clause (a) of this Section 3.05 have arisen and such circumstances are unlikely to be temporary or (ii) determines in its reasonable judgment that the circumstances described in clause (a) of this Section 3.05 have not arisen but
the supervisor for the administrator of the Eurodollar Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the Eurodollar Rate shall no longer be used
for determining interest rates for loans, then the Administrative Agent and the Borrower shall endeavor to establish an alternate rate of interest to the Eurodollar Rate that gives due consideration to the then prevailing market convention for
determining a rate of interest for syndicated loans in the United States at such time, and the Administrative Agent and the Borrower shall enter into an amendment to this Agreement in form and substance satisfactory to each of them to reflect such
alternate rate of interest and such other related changes to this Agreement as may be applicable, provided that to the extent that the Administrative Agent determines that adoption of any portion of such
market convention is not administratively feasible or that no market convention for the administration of such alternate rate of interest exists, the Administrative Agent shall administer such alternate rate of interest in a manner determined by the
Administrative Agent with the consent of the Borrower (such consent not to be unreasonably withheld, conditioned or delayed).Β Notwithstanding anything to the contrary in Section 10.01, such amendment shall become effective without any
further action or consent of any other party to this Agreement so long as the Administrative Agent shall not have received, within five (5) Business Days of the date notice of such alternate
75
rate of interest is provided to the Lenders, a written notice from the Required Lenders stating that such Required Lenders object to such amendment.Β If a notice of an alternate rate of interest has been given and no
such alternate rate of interest has been determined, and (x) the circumstances under clause (i) above exist or (y) the specific date referred to in clause (ii) has occurred (as applicable), the Base Rate shall apply without regard to clause (c) of
the definition thereof.Β Provided that, if such alternate rate of interest shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.
Section 3.06Β Β Β Β Β Certificates of Lenders.Β Any Lender claiming
reimbursement or compensation under this Article 3 shall deliver to the Borrower (with a copy to the Administrative Agent) a certificate setting forth in reasonable detail the amount payable to the Lender hereunder and such certificate shall
be conclusive and binding on the Borrower in the absence of demonstrable error.Β Such certificate shall set forth in reasonable detail the methodology used in determining the amount payable to the Lender.
Section 3.07Β Β Β Β Β Β Β Substitution of Lenders.Β If the Borrower
receives from any Lender notice of a claim for compensation under Section 3.01 or 3.03 or notice of illegality under Section 3.02, the Borrower may, upon notice to such Lender and the Administrative Agent, replace such Lender
by causing such Lender to assign its Revolving Loans and Revolving Commitment (with the assignment fee to be paid by the Borrower in such instance) pursuant to Section 10.07(b) to one or more other Lenders or Eligible Assignees procured by
the Borrower; provided that (x) the Borrower shall be obligated to replace all Lenders that have made similar requests and (y) each such Lender shall have received payment of an amount equal to the
outstanding principal of its Revolving Loans, accrued interest thereon, accrued fees and all other amounts payable to it under the Loan Documents from the applicable assignee (to the extent of such outstanding principal and accrued interest and fees)
or the Borrower (in the case of all other amounts).Β The Borrower shall release such Lender from its obligations under the Loan Documents.Β Any Lender being replaced shall execute and deliver an Assignment and Assumption with respect to such Lenderβs
outstanding Revolving Loans.
Section 3.08Β Β Β Β Survival.Β The agreements and obligations of the
Borrower in Section 3.01, Section 3.03 and Section 3.04 and the agreements and obligations of the Lenders in Section 3.06 shall survive the termination of this Agreement and the payment of all other Obligations.
Conditions Precedent
Section 4.01Β Β Β Β Β Conditions to Effectiveness.Β This Agreement (and
the amendment and restatement of the Existing Credit Agreement effected hereby) shall become effective on the date that each of the following conditions precedent are satisfied or waived:
(a)Β Β Β Β Β Β Β Β Β The Administrative Agent shall have received each of the following, each of which shall be originals or facsimiles or Adobe
PDFs delivered by electronic mail (followed promptly by originals) unless otherwise specified:
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(i)Β Β Β Β Β Β Β Β from each party hereto (including each Continuing Existing Credit Agreement Lender), a counterpart of this
Agreement executed by such party; and
(ii)Β Β Β Β Β Β Β a Revolving Loan Note executed by the Borrower in favor of each Lender that has requested a Revolving Loan
Note at least two (2) Business Days prior to the Restatement Effective Date.
(b)Β Β Β Β Β Β Β Β Β The Guarantee Requirement shall have been satisfied.
(c)Β Β Β Β Β Β Β Β Β The Collateralized L/C Collateral Requirement shall have been satisfied.
(d)Β Β Β Β Β Β Β Β Β The Administrative Agent shall have received:
(i)Β Β Β Β Β Β Β copies of the resolutions of the board of directors, authorized subcommittee thereof, or other equivalent
body of each Credit Party authorizing the Transactions to which such Credit Party is a party, certified as of the Restatement Effective Date by the Secretary or an Assistant Secretary of such Credit Party;
(ii)Β Β Β Β Β Β Β a certificate of the Secretary or Assistant Secretary of each Credit Party certifying the names and true
signatures of the officers of such Credit Party authorized to execute, deliver and perform, as applicable, this Agreement and all other Loan Documents to be delivered by such Credit Party hereunder;
(iii)Β Β Β Β Β Β the articles or certificate of incorporation or equivalent document of each Credit Party as in effect on
the Restatement Effective Date, certified by the Secretary of State (or similar, applicable Governmental Authority) of its state of incorporation or organization as of a recent date;
(iv)Β Β Β Β Β Β the bylaws or equivalent document of each Credit Party as in effect on the Restatement Effective Date,
certified by the Secretary or Assistant Secretary of such Credit Party as of the Restatement Effective Date;
(v)Β Β Β Β Β Β a certificate of good standing or equivalent document for each Credit Party from the Secretary of State (or
similar, applicable Governmental Authority) of its state of incorporation or organization as of a recent date; and
(vi)Β Β Β Β Β Β Β certified copies of Uniform Commercial Code, tax and judgment lien searches, or equivalent reports or
searches, each of a recent date listing all effective financing statements, lien notices or comparable documents that name any Credit Party as debtor and that are filed in those state and county jurisdictions in which any Credit Party is organized or
maintains its principal place of business and such other searches that the Administrative Agent reasonably deems necessary and requested at least five (5) days prior to the Restatement Effective Date.
(e)Β Β Β Β Β Β Β The Administrative Agent shall have received a written opinion, reasonably acceptable to the Administrative Agent in form and
substance (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date), from each of (i) Sidley Austin LLP, counsel for the Credit Parties, substantially in the form of Exhibit G-1 and (ii) Xxxxxxx
77
(Bermuda) Limited, Bermuda counsel for the Credit Parties, substantially in the form of Exhibit Gβ2.
(f)Β Β Β Β Β Β Β Β Β The Administrative Agent shall have been paid (i) all costs, fees and expenses (including, without limitation, Attorney
Costs of the Administrative Agent, the Arrangers, the Bookrunners and recording taxes and fees) to the extent then due and payable to the Administrative Agent, the Arrangers or the Bookrunners and (ii) all other compensation contemplated by the
Engagement Letter and each Fee Letter payable to the Administrative Agent, the Arrangers, the Bookrunners or the Lenders on or before the Restatement Effective Date, in each case to the extent invoiced at least two (2) Business Days prior to the
Restatement Effective Date.
(g)Β Β Β Β Β Β Β Β All accrued and unpaid interest and fees under the Existing Credit Agreement shall have been paid in full.
(h)Β Β Β Β Β Β The Administrative Agent shall have received (i) a certificate signed by a Responsible Officer of Holdings on behalf of the
Borrower, dated as of the Restatement Effective Date, (A) confirming that Holdings and its Restricted Subsidiaries have received all required approvals of the Transactions from each applicable Governmental Authority except applicable regulatory
approvals of Governmental Authorities required under applicable law in connection with the enforcement of any Collateralized L/C Security Document and (B) certifying that the conditions precedent specified in this Section 4.01(h), (i),
(k), (l) and (n) have been satisfied and (ii) a solvency certificate executed by an authorized representative of Holdings, substantially in the form of Exhibit H.
(i)Β Β Β Β Β Β Β Β All governmental and regulatory authorizations necessary in connection with the financing contemplated hereby shall have been
obtained and be in full force and effect.
(j)Β Β Β Β Β Β Each Credit Party shall have provided the documentation and other information to the Administrative Agent as the Lenders
reasonably determine are required by bank regulatory authorities under applicable βknow-your-customerβ and Anti-Money Laundering Laws, including the PATRIOT Act, at least two (2) Business Days prior to the Restatement Effective Date as has been
reasonably requested in writing at least four (4) Business Days prior to the Restatement Effective Date by the Lenders.Β The Borrower shall have delivered a Beneficial Ownership Certification to the Administrative Agent and each Lender requesting
one.
(k)Β Β Β Β Β Β Β Β There will not exist (after giving effect to the financing hereunder) any βevent of defaultβ under (i) any Material
Indebtedness of Holdings or its Subsidiaries or (ii) the Senior Notes.
(l)Β Β Β Β Β Β Β Β Β Β The organizational structure of Holdings and its Subsidiaries will be as set forth on Schedule 4.01(l).
(m)Β Β Β Β Β Β Β The Administrative Agent and the Lenders shall have received at least five (5) calendar days prior to the Restatement
Effective Date (i) the Historical Financial Statements and (ii) the most recent Annual Statements and Quarterly Statements (for those periods ending after delivery of the most recent Annual Statements for each Insurance Subsidiary) of each Insurance
Subsidiary as filed with the insurance regulator of such Insurance Subsidiaryβs
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jurisdiction of domicile on or prior to such date, in each case, to the extent such reports and statements have been prepared by such Insurance Subsidiaries.
(n)Β Β Β Β Β Β Β All of the representations and warranties contained herein or in any Loan Document shall be true and correct in all material
respects on and as of the Restatement Effective Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and
warranties shall have been true and correct in all material respects on and as of such earlier date; provided that, in each case, such materiality qualifier shall not be applicable to any representations and
warranties that already are qualified or modified by materiality in the text thereof.
Section 4.02Β Β Β Β Β Β Β Conditions to All Borrowings and Letter of Credit
Issuances.Β The obligation of any Lender to make any Loans or to issue, renew or extend any Letter of Credit, on any Borrowing Date (including on the Restatement Effective Date) is subject to satisfaction of the following conditions
precedent:
(a)Β Β Β Β Β All of the representations and warranties contained herein or in any Loan Document by any Credit Party (other than the
representations and warranties contained in Sections 5.05 and 5.11(d)), shall be true and correct in all material respects on and as of such Borrowing Date to the same extent as though made on and as of that date, except to the extent such
representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date; provided
that, in each case, such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof.
(b)Β Β Β Β Β Β No Default or Event of Default shall have occurred and be continuing on such date or immediately after giving effect to the
proposed Credit Extension.
(c)Β Β Β Β Β Β Β Β The Administrative Agent shall have received a Loan Notice or Issuance Notice in accordance with the requirements hereof,
along with a Collateralized L/C Collateral Certificate, if applicable.
(d)Β Β Β Β Β Β Β Β After making the Credit Extension requested on such Borrowing Date, (i) the Total Utilization of Revolving Commitments shall
not exceed the Revolving Commitments then in effect, (ii) the Letter of Credit Usage shall not exceed the Letter of Credit Sublimit and (iii) in the case of any Credit Extension consisting of the issuance, renewal or extension of a Collateralized
Letter of Credit, the Collateralized L/C Aggregate Collateral Amount shall not be less than the Minimum Collateralized L/C Aggregate Collateral Amount.
(e)Β Β Β Β Β Β Β On or before the date of issuance of any Letter of Credit, the Administrative Agent shall have received all other information
required by the applicable Issuance Notice, and such other documents or information as the Administrative Agent may reasonably require in connection with the issuance of such Letter of Credit.
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Each Loan Notice submitted by the Borrower shall be deemed to be a representation and warranty that the conditions specified in Sections 4.02(a) and (b) have been satisfied (or
waived) on and as of the date of the applicable Credit Extension.
Section 4.03Β Β Β Β Β Β Determinations Under Section 4.01.Β For purposes
of determining compliance with the conditions specified in Section 4.01, (i) each of the Lenders 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, the Lenders unless an officer of the Administrative Agent responsible for the Transactions shall have received notice from such Lender prior to the Restatement Effective Date specifying
its objection thereto and, in the case of any Lender, such Lender shall not have made available to the Administrative Agent on the Restatement Effective Date such Lenderβs Pro Rata Share of the borrowing to be made on such date and (ii) transactions
occurring (or to occur) on the Restatement Effective Date in accordance with, and as expressly set forth in, the funds flow memorandum delivered to (and approved by) the Administrative Agent shall be deemed to occur and have occurred substantially
simultaneously with the effectiveness hereof on the Restatement Effective Date.
Representations and Warranties
Each Credit Party represents and warrants to the Administrative Agent and the Lenders on behalf of itself and its Restricted Subsidiaries that on the Restatement Effective Date and, to the extent
provided in Section 4.02(a), on the date of the making of each Revolving Loan or issuance, renewal or extension of a Letter of Credit hereunder the following statements are true and correct:
Section 5.01Β Β Β Β Β Β Β Corporate Existence and Power.Β Such Credit
Party and each of its Restricted Subsidiaries:
(a)Β Β Β Β Β Β Β is duly organized, validly existing and in good standing (but, with respect to any Credit Party or Restricted Subsidiary that
is not incorporated, organized or formed under the laws of the United States of America, any State thereof or the District of Columbia, only to the extent such concept is applicable to such Credit Party or Restricted Subsidiary) under the laws of the
jurisdiction of its incorporation, organization or formation;
(b)Β Β Β Β Β Β Β Β has the corporate (or other organizational) power and authority (i) to own its assets and carry on its business and (ii) in
the case of a Credit Party, to perform its obligations, if any, under the Loan Documents to which it is a party;
(c)Β Β Β Β Β Β Β Β is duly qualified as a foreign entity and in good standing under the laws of each jurisdiction where its ownership, lease or
operation of its property or the conduct of its business requires such qualification; and
(d)Β Β Β Β Β Β Β Β Β is in compliance with all Requirements of Law;
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except, in each case referred to in clauses (c) and (d), to the extent that the failure to do so, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
Section 5.02Β Β Β Β Β Β Corporate Authorization; No Contravention.Β The
Transactions to be entered into by such Credit Party are within such Credit Partyβs corporate or other organizational powers.Β The Transactions (including the execution, delivery and performance by such Credit Party of each Loan Document to which it
is a party) have been duly authorized by all necessary corporate or other organizational action of such Credit Party and do not and will not:
(a)Β Β Β Β Β Β Β Β Β contravene the terms of any of such Credit Partyβs Organization Documents;
(b)Β Β Β Β Β Β Β Β result in any breach, violation or contravention of, or result in or require the creation of any Lien (other than the
Collateralized L/C Liens) under, any document evidencing the Senior Notes or any Material Indebtedness to which such Credit Party or any of its Restricted Subsidiaries is a party; or
(c)Β Β Β Β Β Β Β Β violate any Requirement of Law or any order, injunction, writ or decree of any Governmental Authority to which such Credit
Party or any of its Restricted Subsidiaries or its property is subject, except to the extent that such violations, in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
Section 5.03Β Β Β Β Β Governmental Authorization; Other Consents.Β No
approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the Transactions (including the execution, delivery or
performance by, or enforcement against, such Credit Party of each Loan Document to which it is a party), except (a) such as have been obtained and are in full force and effect (including, without limitation, the approval of the applicable Department
of each Insurance Subsidiary, if required) and (b) filings necessary to perfect the Collateralized L/C Liens or, if required under applicable law in connection with the enforcement of any Collateralized L/C Liens, to enforce the Collateralized L/C
Liens.
Section 5.04Β Β Β Β Β Β Β Binding Effect.Β This Agreement has been duly
executed and delivered by such Credit Party and constitutes, and each other Loan Document to which such Credit Party is to be a party, when executed and delivered by such Credit Party, will constitute, a legal, valid and binding obligation of such
Credit Party, in each case enforceable against such Credit Party in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, or similar laws affecting the enforcement of creditorsβ rights generally or
by equitable principles relating to enforceability.
Section 5.05Β Β Β Β Β Β Β Litigation.Β Except as set forth on Schedule
5.05, there are no actions, suits or proceedings pending, or to the Knowledge of such Credit Party, threatened, at law, in equity, in arbitration or before any Governmental Authority, by or against such Credit Party or any of its Restricted
Subsidiaries or any of their respective properties that:Β (a) purport to affect or pertain to this Agreement, any other Loan Document, or any of the transactions (including the Transactions) contemplated hereby or thereby or (b) individually or in
the aggregate could reasonably be expected to have a Material Adverse Effect.Β No injunction, writ, temporary
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restraining order or any order of any nature has been issued by any court or other Governmental Authority against such Credit Party or any of its Restricted Subsidiaries purporting to enjoin or restrain the execution,
delivery or performance of this Agreement or any other Loan Document by such Credit Party or directing that the Transactions not be consummated as herein or therein provided.
Section 5.06Β Β Β Β Β No Default.Β No Default or Event of Default has
occurred and is continuing.Β Neither such Credit Party nor any of its Restricted Subsidiaries is in default in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any of its Contractual
Obligations, and no condition exists which, with the giving of notice or the lapse of time or both, could constitute such a default, except where the consequences, direct or indirect, of such default or defaults, if any, could not reasonably be
expected to have a Material Adverse Effect.
(a)Β Β Β Β Β Β Β Β Each Plan is in compliance with the applicable provisions of ERISA, the Code and other federal or state law except to the
extent that such non-compliance could not reasonably be expected to have a Material Adverse Effect.Β Each Plan that is intended to qualify under Section 401(a) of the Code has received a favorable determination letter from the IRS and to the
Knowledge of such Credit Party, nothing has occurred which would reasonably be expected to cause the loss of such qualification, except where such non-qualification could not reasonably be expected to have a Material Adverse Effect.Β Such Credit
Party, its Restricted Subsidiaries and each ERISA Affiliate have made all required contributions to any Pension Plan, and no application for a funding waiver or an extension of any amortization period pursuant to Section 412 of the Code has been made
with respect to any Pension Plan, except where such lack of contribution or application for funding waiver could not reasonably be expected to have a Material Adverse Effect.
(b)Β Β Β Β Β There are no pending or, to the Knowledge of such Credit Party, threatened claims, actions or lawsuits, or action by any
Governmental Authority, with respect to any Plan or Pension Plan that could reasonably be expected to have a Material Adverse Effect.Β To the Knowledge of such Credit Party, there has been no prohibited transaction or violation of the fiduciary
responsibility rules with respect to any Plan or Pension Plan that could reasonably be expected to have a Material Adverse Effect.
(c)Β Β Β Β Β Β Β Β Except for occurrences or circumstances that individually or in the aggregate could not reasonably be expected to have a
Material Adverse Effect:Β (i) no ERISA Event has occurred or is reasonably expected to occur and (ii) no Single Employer Pension Plan has any Unfunded Pension Liability.
(d)Β Β Β Β Β Β To the extent the assets of the Borrower are deemed to be βplan assetsβ within the meaning of Section 3(42) of ERISA, or
otherwise, (i) on each day that an extension of credit pursuant to a Credit Extension is in effect, such extension of credit will not constitute a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code as a result of
the applicability of Prohibited Transaction Class Exemption 95-60, and (ii) at any time when regulation 29 C.F.R. Section 2510.3-21, as modified in 2016, is applicable, the fiduciary
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making the decision on behalf of the Borrower with respect to the Credit Extension will be deemed to represent and warrant that it (v) is a bank, insurance company, registered investment adviser, broker-dealer or
other person with financial expertise, in each case as described in 29 C.F.R. Section 2510.3-21(c)(1)(i); (w) is an independent plan fiduciary within the meaning of 29 C.F.R. Section 2510.3-21; (x) is capable of evaluating investment risks
independently, both in general and with regard to particular transactions and investment strategies; (y) is responsible for exercising independent judgment in evaluating the transaction and (z) it is not paying any fee or other compensation to the
Lenders or the Agents (the βTransaction Partiesβ) for investment advice (as opposed to other services) in connection with the transaction.Β In addition, such fiduciary will be deemed to acknowledge and agree
that it (1) has been informed (and it is hereby expressly confirmed) that none of the Transaction Parties, or other persons that provide marketing services, nor any of their affiliates, has provided, and none of them will provide, impartial
investment advice and they are not giving any advice in a fiduciary capacity, in connection with the Credit Extensions and (2) has received information concerning, and understands the existence and nature of, the financial interests of the
Transaction Parties in the Credit Extensions.
Section 5.08Β Β Β Β Β Β Β Margin Regulations.Β Neither such Credit Party
nor any of its Restricted Subsidiaries is engaged principally, or as one of its important activities, in the business of purchasing or carrying Margin Stock or extending credit for the purpose of purchasing or carrying Margin Stock.Β Margin Stock
does not constitute more than 25% of the value of the consolidated assets of such Credit Party and its Restricted Subsidiaries.Β None of the proceeds of the Revolving Loans will be used to acquire Margin Stock.Β None of the transactions contemplated
by this Agreement (including the direct or indirect use of the proceeds of the Revolving Loans) will violate or result in a violation of Regulation U or X of the FRB.
Section 5.09Β Β Β Β Β Β Β Title to Properties.Β Each of such Credit Party
and its Restricted Subsidiaries has (i) good, sufficient and legal title to (in the case of fee interests in real property), (ii) valid leasehold interests in (in the case of leasehold interests in real or personal property), (iii) valid license
rights in (in the case of licensed interests in intellectual property) and (iv) good title to (in the case of all other personal property), all of their respective properties and assets necessary in the ordinary conduct of their respective
businesses, except for any failure of any of the foregoing as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.Β Except as permitted by this Agreement, all such properties and assets are free and
clear of Liens.
(a)Β Β Β Β Β Β Β Β Such Credit Party and each of its Restricted Subsidiaries have timely filed all U.S. federal income Tax, other income Tax and
other Tax returns and reports required to be filed, and have paid all federal income Tax, other income Tax and other Taxes levied or imposed upon it or its properties, income or assets that have become due and payable (including in its capacity as a
withholding agent) when due and payable, except those that are being contested in good faith by appropriate proceedings and for which adequate reserves have been provided in accordance with SAP or GAAP, as applicable (provided that such contest effectively suspends collection of the same and enforcement of any Lien securing the same) or those the failure to so file or pay could not reasonably be expected, individually or in the aggregate, to have
a Material
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Adverse Effect.Β There is no current or proposed Tax audit, assessment, deficiency or other claim or proceeding against such Credit Party or any of its Restricted Subsidiaries that could reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect.
(b)Β Β Β Β Β Β Β Β Except as could not be reasonably expected to, individually or in the aggregate, result in a Material Adverse Effect (i) such
Credit Party and each of its Restricted Subsidiaries have made adequate provision in accordance with SAP or GAAP (as applicable) for all Taxes not yet due and payable and (ii) neither such Credit Party nor any Restricted Subsidiary has ever
participated in a βlisted transactionβ within the meaning of United States Treasury Regulation Section 1.6011-4.
(a)Β Β Β Β Β Β Β Β Β Each of the Historical Financial Statements:
(i)Β Β Β Β Β Β Β Β was prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein, subject, in the case of such unaudited financial statements, to ordinary, good faith year-end and audit adjustments and the absence of footnote disclosure;
(ii)Β Β Β Β Β Β fairly presents in all material respects the financial condition, results of operations, cash flows and
changes in shareholdersβ equity of GAFL or Holdings, as the case may be, and its respective Subsidiaries as of the date thereof and results of operations for the period covered thereby; and
(iii)Β Β Β Β in the case of the Historical Financial Statements, shows all material Indebtedness and other material
Contingent Obligations, of Holdings and its consolidated Subsidiaries as of the date thereof.
(b)Β Β Β Β Β Β Β Β Β Β Β Β Each of (i) the December 31, 2017 Annual Statement of each Insurance Subsidiary, (ii) the September 30, 2017 Quarterly
Statement of each Insurance Subsidiary and (iii) the June 30, 2017 Quarterly Statement of each Insurance Subsidiary (collectively, the βHistorical Statutory Statementsβ):
(i)Β Β Β Β Β Β Β was prepared in accordance with SAP, except as may be reflected in the notes thereto and subject, with
respect to the Quarterly Statements, to the absence of notes required by SAP and to normal year-end adjustments; and
(ii)Β Β Β Β Β Β was in all material respects in compliance with applicable Requirements of Law when filed and present
fairly in all material respects the financial condition of the respective Insurance Subsidiaries covered thereby as of the respective dates thereof and changes in Capital and Surplus of the respective Insurance Subsidiaries covered thereby for the
respective periods then ended.
Except for liabilities and obligations disclosed or provided for in the Historical Statutory Statements (including, without limitation, reserves, policy and contract claims and statutory
liabilities), no Insurance Subsidiary had, as of the date of its respective Historical Statutory Statements, any material liabilities or obligations of any nature whatsoever (whether absolute,
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contingent or otherwise and whether or not due) that, in accordance with SAP, would have been required to have been disclosed or provided for in such Historical Statutory Statement.
(c)Β Β Β Β Β Β Β On and as of the Restatement Effective Date, the financial projections set forth in the lendersβ presentation dated as of
April 18, 2018 have been prepared in good faith based upon assumptions that are believed by the preparer thereof to be reasonable at the time such financial projections were furnished to the Lenders, it being understood and agreed that financial
projections are not a guarantee of financial performance and actual results may differ from financial projections and such differences may be material.
(d)Β Β Β Β Β Β Β Since December 31, 2017, no event, circumstance or change has occurred that has caused or evidences, or could reasonably be
expected to result in, either in any case or in the aggregate, a Material Adverse Effect.
(a)Β Β Β Β Β Β Β Β All real properties owned or leased by such Credit Party or any of its Restricted Subsidiaries have been, and continue to be,
owned or operated by such Credit Party and its Restricted Subsidiaries in compliance with all Environmental Laws, except where failure to so comply could not, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect.
(b)Β Β Β Β Β Β Β There have been no past, and there are no pending or, to the Knowledge of such Credit Party, threatened, Environmental Claims
against such Credit Party or any of its Restricted Subsidiaries, except for such Environmental Claims that could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(c)Β Β Β Β Β Β Β Β There has been no Release of Hazardous Materials at, on, under or from any real property now or, to the Knowledge of such
Credit Party, previously owned or leased by such Credit Party or any of its Restricted Subsidiaries that, individually or in the aggregate, have had, or could reasonably be expected to have, a Material Adverse Effect.
(d)Β Β Β Β Β Β Β Such Credit Party and each of its Restricted Subsidiaries have been issued and are in compliance with all permits,
certificates, approvals, licenses and other authorizations required under any Environmental Law to own and operate their real property or to conduct their businesses except where failure to obtain or comply with the foregoing could not, individually
or in the aggregate, be reasonably expected to have a Material Adverse Effect.
(e)Β Β Β Β Β Β Β Β There are no underground or above-ground storage tanks, active or abandoned, including petroleum storage tanks, on or under
any real property now owned or leased by such Credit Party or any of its Restricted Subsidiaries that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(f)Β Β Β Β Β Β Β Β Β To the Knowledge of such Credit Party, neither such Credit Party nor any of its Restricted Subsidiaries has directly
transported or directly arranged for the transportation of any Hazardous Material to any location that could reasonably be expected to result in liability of such Credit Party or any of its Restricted Subsidiaries under any Environmental Law, except
any such
85
liability which could not, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect.
(g)Β Β Β Β Β Β Β Β To the Knowledge of such Credit Party, there are no polychlorinated biphenyls or friable asbestos present at any real
property now owned or leased by such Credit Party or any of its Restricted Subsidiaries that, individually or in the aggregate, could be reasonably expected to have a Material Adverse Effect.
Section 5.13Β Β Β Β Β Β Β Investment Company Act of 1940.Β Neither such
Credit Party, nor any of its Restricted Subsidiaries, is required to register as an investment company under the Investment Company Act of 1940.
(a)Β Β Β Β Β Β Β Β The Capital Stock of each of such Credit Party and its Restricted Subsidiaries has been duly authorized and validly issued
and is fully paid and non-assessable.Β Except as set forth on Schedule 5.14(a), as of the date hereof, there is no existing option, warrant, call, right, commitment or other agreement to which such Credit Party or any of its Restricted
Subsidiaries is a party requiring, and there is no membership interest or other Capital Stock of such Credit Party or any of its Restricted Subsidiaries outstanding which upon conversion or exchange would require, the issuance by such Credit Party or
any of its Restricted Subsidiaries of any additional membership interests or other Capital Stock of such Credit Party or any of its Restricted Subsidiaries or other securities convertible into, exchangeable for or evidencing the right to subscribe
for or purchase, a membership interest or other Capital Stock of such Credit Party or any of its Restricted Subsidiaries.
(b)Β Β Β Β Β Β Schedule 5.14(b) sets forth the name of, and the ownership interest of Holdings (or the applicable Subsidiary) in, each
of its Subsidiaries and identifies each Subsidiary that is a Foreign Subsidiary and/or an Insurance Subsidiary, in each case as of the Restatement Effective Date.Β All Holdingsβ Subsidiaries are, and will at all times be, fully consolidated in its
consolidated financial statements.
(a)Β Β Β Β Β Β Β To such Credit Partyβs Knowledge, no License that is required to be obtained in order to be an insurer or a reinsurer of any
Insurance Subsidiary, the loss of which individually or in the aggregate could reasonably be expected to have a Material Adverse Effect, is the subject of a proceeding for suspension or revocation.Β To such Credit Partyβs Knowledge, there is no
sustainable basis for such suspension or revocation, and no such suspension or revocation has been threatened by any Governmental Authority.
(b)Β Β Β Β Β Β Β Β Such Credit Party and each of its Restricted Subsidiaries has all governmental licenses, authorizations, consent, and
approvals (i) to own, lease or operate its assets and to conduct its business and (ii) in the case of a Credit Party, to perform its obligations, if any, under the Loan Documents to which it is a party; except, in each case referred to in this clause
(b), to the extent that the failure to do so, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
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(a)Β Β Β Β Β Β Β All written or formally presented information (other than financial projections) provided by such Credit Party to the Lenders
in connection with the Transactions is, when taken as a whole with all other information so provided, complete and correct in all material respects and when taken as a whole, did not and will not, when furnished, contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements contained therein not materially misleading.Β There are no facts known to such Credit Party (other than matters of a general economic nature) that, individually or in the
aggregate, could reasonably be expected to result in a Material Adverse Effect and that have not been disclosed herein or in such other documents, certificates and statements furnished to Lenders for use in connection with the Transactions.
(b)Β Β Β Β Β Β Β As of the Restatement Effective Date, the information included in the Beneficial Ownership Certification delivered pursuant to
Section 4.01(j) is true and correct in all respects.
Section 5.17Β Β Β Β Β Β Β Solvency.Β Immediately after the Transactions to
occur on the Restatement Effective Date are consummated, and, upon the incurrence of any Obligation by such Credit Party on any date on which this representation and warranty is made:
(a)Β Β Β Β Β Β Β Β the fair value of the assets of Holdings and its Restricted Subsidiaries, on a consolidated basis, exceeds the fair value of
their debts and liabilities, subordinated, contingent or otherwise, on a consolidated basis;
(b)Β Β Β Β Β Β Β Β the present fair saleable value of the property of Holdings and its Restricted Subsidiaries, on a consolidated basis, is
greater than the amount that will be required to pay the probable liability, on a consolidated basis, of their debts and other liabilities, subordinated, contingent or otherwise, on a consolidated basis, as such debts and other liabilities become
absolute and matured;
(c)Β Β Β Β Β Β Β Β Holdings and its Restricted Subsidiaries, on a consolidated basis, are able to pay their debts and liabilities, subordinated,
contingent or otherwise, on a consolidated basis, as such liabilities become absolute and matured;
(d)Β Β Β Β Β Β Β Holdings and its Restricted Subsidiaries, on a consolidated basis, do not intend to incur, nor believe that they will incur on
or immediately following the Restatement Effective Date, debts, including current obligations, beyond their ability to pay such debts as they become absolute and matured; and
(e)Β Β Β Β Β Β Β Β Holdings and its Restricted Subsidiaries, on a consolidated basis, are not engaged in, and are not about to engage in,
business for which they have unreasonably small capital.
Section 5.18Β Β Β Β Β Β Β Insurance.Β Other than as could not reasonably
be expected to have a Material Adverse Effect, the insurance maintained by or reserved on the books of such Credit Party and its Restricted Subsidiaries is sufficient to protect such Credit Party and its Restricted Subsidiaries and their respective
directors and officers against such risks as are usually insured against in accordance with industry practice by companies in the same or similar business.
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(a)Β Β Β Β Β Β Β Such Credit Party and each of its Subsidiaries and, to the Knowledge of such Credit Party, each of such Credit Partyβs and its
Subsidiariesβ officers, directors and employees has conducted its business activities in material compliance with Anti-Corruption Laws.Β Each Insurance Subsidiary has instituted and maintains and will continue to maintain policies and procedures
designed to promote and achieve compliance with applicable Anti-Corruption Laws.
(b)Β Β Β Β Β Β Β Β Neither such Credit Party nor any of its Subsidiaries or, to the Knowledge of such Credit Party, none of such Credit Partyβs
or any of its Subsidiariesβ officers, directors or employees has violated or is in violation of any applicable Anti-Money Laundering Law in any material respect.
(c)Β Β Β Β Β Β Β Β Neither such Credit Party nor any of its Subsidiaries or, to the Knowledge of such Credit Party, none of such Credit Partyβs
or any of its Subsidiariesβ officers, directors or employees is acting or benefiting in any capacity in connection with the Revolving Loans or the Letters of Credit (i) is an Embargoed Person or (ii) except as otherwise authorized by OFAC or any
other relevant sanctions authority, otherwise permitted for U.S. persons by a U.S. Governmental Authority or by any rule, regulation or order of a U.S. Governmental Authority, will use any proceeds of the Revolving Loans, or lend, contribute or
otherwise make available such proceeds to any Person (A) for the purpose of financing the activities of or with any Person or in any country or territory that, at the time of funding or facilitation, is an Embargoed Person or (B) in any other manner
that would result in a violation of Economic Sanctions Laws or Anti-Corruption Laws.
(d)Β Β Β Β Β Β Except as otherwise authorized by OFAC or any other relevant sanctions authority, neither such Credit Party nor any of its
Subsidiaries or, to the Knowledge of such Credit Party, none of such Credit Partyβs or any of its Subsidiariesβ officers, directors or employees acting or benefiting in any capacity in connection with the Revolving Loans or the Letters of Credit (i)
conducts any business or engages in making or receiving any contribution of funds, goods or services to or for the benefit of any Embargoed Person, (ii) deals in, or otherwise engages in any transaction related to, any property or interests in
property blocked pursuant to any applicable Economic Sanctions Laws or (iii) engages in or conspires to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the applicable
prohibitions set forth in any applicable Economic Sanctions Laws.
Section 5.20Β Β Β Β Β Β Surplus Debenture Interest and Dividends.Β
Neither such Credit Party nor any of its Restricted Subsidiaries has received any notice from the NAIC, any other Governmental Authority or any other insurance regulatory authority that its Insurance Subsidiaries will not be permitted to pay
dividends or interest, as applicable, on any Surplus Debentures or Notes.
Section 5.21Β Β Β Β Β Use of Proceeds.Β Such Credit Party will use the
proceeds of the Revolving Loans (i) only in compliance (and not in contravention of) applicable laws and each Loan Document, and (ii) for working capital and general corporate purposes of Holdings and its Subsidiaries.
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Section 5.22. EEAAffected Financial Institution. No Credit Party is an EEAAffected Financial Institution.
Affirmative Covenants
Until all principal of and interest on each Revolving Loan and all fees and other amounts payable hereunder have been paid in full (other than unmatured, surviving contingent indemnification
obligations not yet due and payable), all Revolving Commitments have been terminated and all Letters of Credit have been cancelled or have expired (or Cash Collateralized at the Minimum Cash Collateral Amount), each Credit Party, as applicable,
covenants and agrees with the Lenders that:
Section 6.01Β Β Β Β Β Β Β Β Financial Statements.Β Holdings and/or the
Borrower shall deliver to the Administrative Agent and each Lender:
(a)Β Β Β Β Β Β Β Β as soon as available, and in any event within one hundred thirty-five (135) days after the end of each Fiscal Year,
commencing with the Fiscal Year ending December 31, 2018, (i) the consolidated balance sheets of Holdings and its Restricted Subsidiaries as at the end of such Fiscal Year (including, any adjustments necessary to eliminate the accounts of
Unrestricted Subsidiaries (if any) (which may be in footnote form only) from the consolidated financial statements) and the related consolidated statements of income, stockholdersβ equity and cash flows of Holdings and its Restricted Subsidiaries for
such Fiscal Year, setting forth in each case in comparative form the corresponding figures for the previous Fiscal Year (to the extent corresponding figures for the previous Fiscal Year were prepared), all in reasonable detail and (ii) with respect
to such consolidated financial statements a report thereon of PricewaterhouseCoopers LLP or other independent certified public accountants of recognized national standing selected by Holdings and reasonably satisfactory to the Administrative Agent
(which report and/or the accompanying financial statements shall be unqualified as to going concern and scope of audit, and shall state that such consolidated financial statements fairly present, in all material respects, the consolidated financial
position of Holdings and its Restricted Subsidiaries, in each case, as at the dates indicated and the results of their operations and their cash flows for the periods indicated in conformity with GAAP applied on a basis consistent with prior years
(except as otherwise disclosed in such financial statements) and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards);
(b)Β Β Β Β Β Β Β Β as soon as available, and in any event within sixty (60) days after the end of (x) in the case of clause (i), each of
the first three Fiscal Quarters of each Fiscal Year, or (y) in the case of clause (ii), each Fiscal Quarter of each Fiscal Year, in each case, commencing with the Fiscal Quarter ended March 31, 2018, (i) the consolidated balance sheets of
Holdings and its Restricted Subsidiaries, as at the end of such Fiscal Quarter and the related consolidated statements of income and stockholdersβ equity of Holdings and its Restricted Subsidiaries for such Fiscal Quarter and for the period from the
beginning of the then current Fiscal Year to the end of such Fiscal Quarter, setting forth in each case in comparative form the corresponding figures for the corresponding periods of the previous Fiscal Year (to the extent corresponding figures for
the corresponding periods of the previous Fiscal Year were prepared), all in reasonable detail and
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certified by a Responsible Officer of Holdings or the Borrower as fairly presenting in all material respects, in accordance with GAAP (subject to the absence of footnotes and year-end audit adjustments), the financial
position, the results of operations of Holdings and its Restricted Subsidiaries, and (ii) consolidated balance sheets of the Borrower and its Restricted Subsidiaries, as at the end of such Fiscal Quarter and the related consolidated statements of
income, stockholdersβ equity of the Borrower and its Restricted Subsidiaries for such Fiscal Quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, setting forth in each case in comparative
form the corresponding figures for the corresponding periods of the previous Fiscal Year (to the extent corresponding figures for the corresponding periods of the previous Fiscal Year were prepared), all in reasonable detail and certified by a
Responsible Officer of the Holdings or the Borrower as fairly presenting in all material respects, in accordance with GAAP (subject to the absence of footnotes and year-end audit adjustments), the financial position and the results of operations of
the Borrower and its Restricted Subsidiaries, provided that, in lieu of the information required by this Section 6.01(b)(ii) for the fourth Fiscal Quarter of a Fiscal Year, the Borrower may, upon
prior written notice to the Administrative Agent and within one hundred thirty-five (135) days after the end of such Fiscal Year, provide financial statements of the Borrower for such Fiscal Year that comply with the requirements of Section
6.01(a) and provided, further, that, no separate financial information of the Borrower shall be required to be delivered under this Section 6.01(b)(ii)
if the financial statements of Holdings provided pursuant to Section 6.01(a) and Section 6.01(b)(i) include information regarding the Borrower that complies with Section 3-10 of Regulation SβX;
(c)Β Β Β Β Β Β Β Β within two (2) Business Days after delivery to the applicable Department, and in any event not later than one hundred
twenty-five (125) days after the close of each Fiscal Year of each Insurance Subsidiary, copies of the unaudited Annual Statement of such Insurance Subsidiary on a stand-alone basis in each case, to the extent such Annual Statement is required to be
delivered to the applicable Department, the stand-alone Annual Statement to be certified by a Responsible Officer of such Insurance Subsidiary, all such statements to be prepared in accordance with SAP consistently applied throughout the periods
reflected therein and, if required by the applicable Governmental Authority, audited and certified by independent certified public accountants of recognized national standing (such audited Annual Statement to be delivered as soon as available but not
later than June 15 of each Fiscal Year of such Insurance Subsidiary); provided that, no certification by any independent certified public accountants will be required with respect to SAP prescribed or
permitted by the insurance commissioner (or other similar authority) in Bermuda;
(d)Β Β Β Β Β Β Β Β within two (2) Business Days after delivery to the applicable Department, and in any event not later than fifty (50) days
after the close of each of the first three Fiscal Quarters of each Fiscal Year of each Insurance Subsidiary, copies of the Quarterly Statement of such Insurance Subsidiary, in each case, to the extent such Quarterly Statement is required to be
delivered to the applicable Department, on a stand-alone basis, the stand-alone Quarterly Statement to be certified by a Responsible Officer of such Insurance Subsidiary, all such statements to be prepared in accordance with SAP consistently applied
through the period reflected therein;
(e)Β Β Β Β Β Β Β promptly following the delivery to or receipt by Holdings or any of its Restricted Subsidiaries of any regular or periodic
final Triennial Examination Reports, final risk adjusted
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capital reports or final results of any market conduct examination or examination by any Department or the NAIC of the financial condition and operations of, or any final notice of any assertion as to violation of any
Requirement of Law by, any Insurance Subsidiary, or any final report with respect to any Insurance Subsidiary (including any summary report from the NAIC with respect to the performance of such Insurance Subsidiary as measured against the ratios and
other financial measurements developed by the NAIC under its Insurance Regulatory Information System as in effect from time to time) that could reasonably be expected to result in a Material Adverse Effect; and
(f)Β Β Β Β Β Β Β Β Β within ninety-five (95) days after the close of each Fiscal Year of each Insurance Subsidiary, a copy of the βStatement of
Actuarial Opinionβ and βManagement Discussion and Analysisβ for each such Insurance Subsidiary that is provided to the applicable Department (or equivalent information should such Department no longer require such a statement), to the extent required
by the applicable Department, as to the adequacy of reserves of such Insurance Subsidiary, such opinion to be in the format prescribed by the insurance code of the state of domicile of such Insurance Subsidiary.
Section 6.02Β Β Β Β Β Β Certificates; Other Information.Β The Borrower
shall furnish to the Administrative Agent, for further distribution to each Lender:
(a)Β Β Β Β Β Β concurrently with the delivery of the financial statements referred to in Section 6.01(a) and Section 6.01(b)(i),
a Compliance Certificate;
(b)Β Β Β Β Β (i) on the Business Day immediately preceding the proposed date of issuance of any Collateralized Letter of Credit, (ii) if
Collateralized Letters of Credit are outstanding during any calendar month, within ten (10) Business Days after the end of each such calendar month, (iii) as of the Commitment Termination Date, (iv) at and as of such other times as the Administrative
Agent may reasonably request and (v) at such other times as the Borrower may desire, a Collateralized L/C Collateral Certificate;
(c)Β Β Β Β Β Β Β Β promptly upon receipt thereof, copies of all final reports submitted to Holdings or any of its Restricted Subsidiaries by
independent public accountants in connection with each annual, interim or special audit of the financial statements of Holdings or any of its Restricted Subsidiaries made by such accountants;
(d)Β Β Β Β Β Β promptly, copies of all Forms 10-K and 10-Q that Holdings or the Borrower may file with the SEC, copies of all registration
statements and prospectuses that Holdings or the Borrower may file with the SEC and copies of all other financial statements, proxy statements and regular, periodic or special reports (including Form 8βK) that Holdings or the Borrower may make to, or
file with, the SEC, unless such copies have been publicly filed with the SEC and are available on the SECβs website or have been posted to Holdingsβ or the Borrowerβs website (and notification of any such posting has been provided to the
Administrative Agent);
(e)Β Β Β Β Β Β Β Β (i) promptly and in any event within three (3) Business Days after learning thereof, notification of any changes after the
date hereof in any rating given by S&P, Xxxxxβx, Fitch or A.M. Best in respect of Holdings, any of its Restricted Subsidiaries or any of their Indebtedness or securities and (ii) promptly upon receipt thereof by Holdings or any Restricted
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Subsidiary, as applicable, a copy of any written communication from S&P, Xxxxxβx or Fitch addressed to any Credit Party that could reasonably be expected to have an adverse effect on the then current Debt Rating;
and
(f)Β Β Β Β Β Β promptly, (i) such additional information regarding the business, financial or corporate affairs of Holdings or any Restricted
Subsidiary, or compliance with the terms of any Loan Document, as the Administrative Agent, for itself or at the request of any Lender, may from time to time reasonably request and (ii) information and documentation reasonably requested by the
Administrative Agent or any Lender for purposes of compliance with applicable βknow-your-customerβ and Anti-Money Laundering Laws, including the PATRIOT Act.
Documents required to be delivered pursuant to Section 6.01, this Section 6.02 or Section 6.03 may be delivered electronically and if so delivered, shall be deemed to have
been delivered on the date (i) on which Holdings posts such documents or provides a link thereto on Holdingsβ website on the Internet; (ii) on which such documents are posted on Holdingsβ behalf on IntraLinks/IntraAgency or another relevant 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); or (iii) on which such documents are made publicly available at xxx.xxx.xxx; provided that, with respect to clauses (ii) and (iii) of this paragraph, Holdings shall notify the Administrative Agent of the posting of any such documents and, solely with respect to clause
(ii), provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.Β Except for 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, Holdings or its Restricted Subsidiaries 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.
Each of the Credit Parties hereby acknowledges that (a) the Administrative Agent will make available information and projections (collectively, βBorrower Materialsβ)
to the Lenders by posting the Borrower Materials on IntraLinks or another similar secure electronic system (the βPlatformβ) and (b) certain of the Lenders may be βpublic sideβ Lenders that do not wish to
receive MNPI (each, a βPublic Lenderβ).Β Each of Holdings and the Borrower shall clearly designate as such all Borrower Materials provided to the Administrative Agent by or on behalf of Holdings or the Borrower
which is suitable to make available to Public Lenders.Β If Holdings or the Borrower has not indicated whether Borrower Materials cannot be distributed to Public Lenders, the Administrative Agent reserves the right to post such Borrower Materials
solely on that portion of the Platform designated for non-Public Lenders.
(a)Β Β Β Β Β Β Β Β Β of the occurrence of any Default;
(b)Β Β Β Β Β Β Β of any matter that has resulted in, or could reasonably be expected to result in, a Material Adverse Effect, including any of
the following that could reasonably be expected to have a Material Adverse Effect:Β (i) any material breach or non-performance of, or any default under, a material Contractual Obligation of Holdings or any Restricted Subsidiary; (ii) the
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commencement of, or any material development in, any litigation (including any governmental proceeding or arbitration proceeding), tax audit or investigative proceeding, claim, lawsuit, and/or investigation against or
involving Holdings or any of its Restricted Subsidiaries or any of its or their businesses or operations; (iii) the expiration without renewal, revocation, suspension or restriction of, or the institution of any proceedings to revoke, suspend or
restrict, any License now or hereafter held by any Insurance Subsidiary that is required to conduct insurance business in compliance with all applicable laws and regulations; (iv) the institution of any disciplinary proceedings against or in respect
of any Insurance Subsidiary, or the issuance of any order, the taking of any action or any request for an extraordinary audit for cause by any Governmental Authority; or (v) the issuance or adoption of any judicial or administrative order limiting or
controlling the insurance business of any Insurance Subsidiary (and not the insurance industry generally);
(c)Β Β Β Β Β Β Β Β of the filing or commencement of, or the occurrence of any development in, any litigation or proceeding against any Credit
Party that seeks to enjoin, prohibit, discontinue or otherwise impacts (i) the validity or enforceability of this Agreement or any of the other Loan Documents or (ii) the transactions contemplated hereby or thereby and, in the case of this subclause
(ii), that could reasonably be expected to have a Material Adverse Effect;
(d)Β Β Β Β Β Β Β Β Β Β Β Β of the occurrence of any of the following events affecting Holdings, any of its Restricted Subsidiaries or any ERISA
Affiliate (but in no event more than ten (10) days after such event) and deliver to the Administrative Agent and each Lender a copy of any notice with respect to such event that is filed with a Governmental Authority and any notice delivered by a
Governmental Authority to Holdings, any of its Restricted Subsidiaries or any ERISA Affiliate with respect to such event:
(i)Β Β Β Β Β Β Β Β Β Β an ERISA Event;
(ii)Β Β Β Β Β Β Β Β the incurrence of any Unfunded Pension Liabilities of any Pension Plan;
(iii)Β Β Β Β Β Β Β the adoption of or the commencement of contributions to any Pension Plan by Holdings, any of its
Restricted Subsidiaries or any ERISA Affiliate; or
(iv)Β Β Β Β Β Β the adoption of any amendment to a Single Employer Pension Plan, if such amendment results in a material
increase in contributions or results in Unfunded Pension Liability;
provided that no such notice will be required under this Section 6.03(d) with respect to the occurrence
of any such event if such occurrence does not result in, and is not reasonably expected to result in, any liability to Holdings, any of its Restricted Subsidiaries or any ERISA Affiliate of more than $75,000,000 in the aggregate;
(e)Β Β Β Β Β Β Β Β Β of any material change in accounting policies or financial reporting practices by any Credit Party; and
(f)Β Β Β Β Β Β Β Β Β (i) of the consummation of the IPO and (ii) of the identity of the IPO Entity, in each case, promptly after the occurrence
of the IPO.
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Each notice under this Section 6.03 shall be accompanied by a written statement by a Responsible Officer setting forth details of the occurrence referred to therein, and stating what action Holdings or any
affected Restricted Subsidiary proposes to take with respect thereto and at what time.Β Each notice under Section 6.03(a) shall describe with particularity any and all clauses or provisions of this Agreement or other Loan Document that have
been breached or violated.
Section 6.04Β Β Β Β Β Β Preservation of Corporate Existence, Etc.Β Such
Credit Party shall, and shall cause each of its Restricted Subsidiaries to (except as permitted by Section 7.03 or Section 7.07):
(a)Β Β Β Β Β Β Β Β preserve and maintain in full force and effect its existence and good standing (but, with respect to such Credit Party or
Restricted Subsidiary that is not incorporated, organized or formed under the laws of the United States of America, any State thereof or the District of Columbia, only to the extent such concept is applicable to such Credit Party or Restricted
Subsidiary) under the laws of the jurisdiction of its incorporation, organization or formation, as applicable; provided no Restricted Subsidiary (other than the Credit Parties) shall be required to preserve
any such existence or good standing if such Personβs board of directors (or similar governing body) shall determine that the preservation thereof is no longer desirable in the conduct of the business of such Person, and that the loss thereof is not
disadvantageous in any material respect to such Person or to the Lenders; and
(b)Β Β Β Β Β Β Β preserve and maintain in full force and effect all governmental rights, privileges, qualifications, permits, licenses and
franchises necessary in the normal conduct of its business, except, in the case of this clause (b), where such failure to preserve and maintain could not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect.
Section 6.05Β Β Β Β Β Β Insurance.Β Such Credit Party shall, and shall
cause each of its Restricted Subsidiaries to, maintain with financially sound and reputable independent insurers insurance against losses or damage of the kinds customarily insured against by Persons engaged in the same or similar business, of such
types and in such amounts (after giving effect to any self-insurance reasonable and customary for similarly situated Persons engaged in the same or similar businesses as Holdings and its Restricted Subsidiaries) as are customarily carried under
similar circumstances by such other Persons and at commercially reasonable rates, except where such failure to maintain such insurance could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Section 6.06Β Β Β Β Β Β Payment of Taxes and Claims.Β Such Credit Party
will, and will cause each of its Restricted Subsidiaries to, pay all Taxes imposed upon it or any of its properties or assets or in respect of any of its income, businesses or franchises before any penalty or fine accrues thereon, and all claims
(including claims for labor, services, materials and supplies) for sums that have become due and payable and that by law have or may become a Lien upon any of its properties or assets, prior to the time when any penalty or fine shall be incurred with
respect thereto, except (i) to the extent a failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or (ii) as is being contested in good faith by appropriate proceedings promptly
instituted and diligently conducted, so long as (a) adequate reserve or other appropriate provision, as shall be required in conformity with SAP and GAAP shall have been made therefor, and (b) in the case of a Tax or claim which has or may
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become a Lien against any of the Collateralized L/C Collateral, such contest proceedings conclusively operate to stay the sale of any portion of the Collateralized L/C Collateral to satisfy such Tax or claim.Β Such
Credit Party will not, nor will it permit any of its Restricted Subsidiaries to, file or consent to the filing of any consolidated income tax return with any Person (other than Holdings or any of its Subsidiaries).
Section 6.07Β Β Β Β Β Compliance with Laws.Β Such Credit Party shall,
and shall cause each of its Restricted Subsidiaries to, comply with all Requirements of Law of any Governmental Authority having jurisdiction over it or its business (including the Federal Fair Labor Standards Act, the PATRIOT Act and all applicable
Environmental Laws), except (i) for such non-compliance that could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or (ii) as may be contested in good faith and by appropriate proceedings and with
respect to which adequate reserves are being maintained in accordance with GAAP.
Section 6.08Β Β Β Β Β Β Β Compliance with ERISA.Β Such Credit Party shall,
and shall cause each of its Restricted Subsidiaries and ERISA Affiliates to:Β (a) maintain each Plan in compliance in all material respects with the applicable provisions of ERISA, the Code and other federal or state law; (b) cause each Pension Plan
to maintain such qualification; and (c) make all required contributions to any Pension Plan, except where such failure to maintain as set forth in clause (a) or (b) orΒ to make contributions as set forth in clause (c) could
not, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect.
Section 6.09Β Β Β Β Β Β Β Inspection of Property and Books and Records.Β
Such Credit Party shall, and shall cause each of its Restricted Subsidiaries to, (i) maintain proper books of record and account, in which full, true and correct entries in all material respects in conformity with GAAP or SAP, as applicable,
consistently applied (except as stated therein) shall be made of all financial transactions and matters involving the assets and business of such Credit Party and such Restricted Subsidiary and (ii) maintain such books of record and account in
material conformity with all applicable requirements of any Governmental Authority having regulatory jurisdiction over such Credit Party or such Restricted Subsidiary, as the case may be.Β Such Credit Party shall permit, and shall cause each of its
Restricted Subsidiaries to permit, representatives and independent contractors (subject to, in the case of representatives or independent contractors, such representatives or independent contractors executing confidentiality agreements in form
reasonably satisfactory to Holdings) of the Administrative Agent or its designees, at the Borrowerβs expense, to visit and inspect any of their respective properties, to examine their respective corporate, financial and operating records, and make
copies thereof or abstracts therefrom, and to discuss their respective affairs, finances and accounts with their respective directors, officers, and independent public accountants, all at such reasonable times during normal business hours, upon
reasonable advance notice to the Borrower; provided that members of senior management will be notified and permitted to be present during any such meetings; and provided, further, that when an Event of Default exists the Administrative Agent or any Lender (through coordination with the Administrative Agent) may do any of the foregoing at any time during normal business hours and
without advance notice; provided, further, that the Borrower shall not be required to reimburse the costs of the Administrative Agent and the Lenders collectively for
more than one visit per Fiscal Year unless an Event of Default has occurred and is continuing.
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Section 6.10Β Β Β Β Β Β Β Β Information Regarding Collateralized L/C Collateral.Β
The Credit Parties will furnish to the Administrative Agent prompt written notice of any change in (i) any Credit Partyβs legal name or any Credit Partyβs location (determined as provided in Section 9-307 of the Uniform Commercial Code), (ii) any
Credit Partyβs identity or corporate structure or (iii) any Credit Partyβs Federal Taxpayer Identification Number of organizational identification number.Β The Credit Parties agree not to effect or permit any change referred to in the preceding
sentence unless all filings have been made under the Uniform Commercial Code or otherwise that are required in order for the Administrative Agent to continue at all times following such change to have a valid, legal and perfected security interest in
all the Collateralized L/C Collateral as contemplated in the Collateralized L/C Security Documents.
Section 6.11Β Β Β Β Β Β Β Β Β Use of Proceeds.Β The proceeds of the
Revolving Loans shall be used for working capital and general corporate purposes of Holdings and its Subsidiaries.
Section 6.12Β Β Β Β Β Β Additional Guarantors.Β If any Person becomes a
Designated Subsidiary after the Restatement Effective Date, the Borrower will promptly, and in any event not later than ten (10) Business Days after such Person becomes a Designated Subsidiary, notify the Administrative Agent thereof and cause the
Guarantee Requirement to be satisfied with respect to such Person, whereupon such Person will become a βCredit Partyβ and a βGuarantorβ for purposes of the Loan Documents.
Section 6.13Β Β Β Β Β Β Β Further Assurances.Β Each Credit Party will, and
will cause each other Credit Party to, at the request of the Administrative Agent, execute and deliver 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, if applicable), that may be required under any applicable law to cause the Guarantee Requirement and the Collateralized L/C Collateral Requirement to be and remain satisfied, all at the
Borrowerβs expense.Β The Borrower will provide to the Administrative Agent, from time to time upon request, evidence reasonably satisfactory to the Administrative Agent as to the perfection and priority of the Liens created or intended to be created
by the Collateralized L/C Security Documents.
Section 6.14Β Β Β Β Β Β Β Β Β Designation of Subsidiaries.Β The board of
directors (or similar governing body) of Holdings may at any time designate any Restricted Subsidiary as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary; provided that (i)
immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing, (ii) immediately after giving effect to such designation, Holdings and its Subsidiaries shall be in compliance with Sections 7.10
and 7.11, (iii) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a βRestricted Subsidiaryβ for the purpose of the Senior Notes, (iv) no Restricted Subsidiary may be designated as an Unrestricted Subsidiary if it was
previously designated an Unrestricted Subsidiary, (v) the Borrower shall deliver to the Administrative Agent at least five (5) Business Days prior to such designation a certificate of a Responsible Officer of Holdings, together with all relevant
financial information reasonably requested by the Administrative Agent, demonstrating compliance with the foregoing clauses (i) through (iv) of this Section 6.14 and, if applicable, certifying that such subsidiary meets the
requirements of an Unrestricted Subsidiary and (vi) at least ten (10) days prior to the designation of any Unrestricted Subsidiary as a Restricted Subsidiary, the Lenders shall have received all
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documentation and other information required by bank regulatory authorities under applicable βknow-your-customerβ and Anti-Money Laundering Laws, including the PATRIOT Act, with respect to such subsidiary.Β The
designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the incurrence at the time of designation of any Indebtedness or Liens of such Subsidiary existing at such time.
Section 6.15Β Β Β Β Β Β Β Maintenance of Properties.Β Such Credit Party
will, and will cause each of its Restricted Subsidiaries to, maintain or cause to be maintained in good repair, working order and condition, ordinary wear and tear excepted, all material properties used or useful in the business of Holdings and its
Restricted Subsidiaries and from time to time will make or cause to be made all appropriate repairs, renewals and replacements thereof, except to the extent a failure to do so could not, individually or in the aggregate, have a Material Adverse
Effect.
Section 6.16Β Β Β Β Β Β Β Β Β Lender Meetings.Β Holdings and the Borrower
will, 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 to be held at the Borrowerβs corporate offices (or at such other location as may
be agreed to by the Borrower and the Administrative Agent) at such time during normal business hours as may be agreed to by Holdings and the Administrative Agent.
(a)Β Β Β Β Β Β Β Β Β Environmental Disclosure.Β Holdings will deliver to the Administrative Agent and Lenders:
(i)Β Β Β Β Β Β Β Β Β Β Β Β promptly upon the occurrence thereof, written notice describing in reasonable detail (1) any Release of
Hazardous Materials, which has a reasonable possibility of resulting in one or more Environmental Claims or otherwise having, individually or in the aggregate, a Material Adverse Effect and (2) any remedial action taken by Holdings or any other
Person in response to (A) any past, current, or threatened event or occurrence involving any Hazardous Materials, and any corrective action or response action with respect to any such event or occurrence, the existence of which could reasonably be
expected to result in one or more Environmental Claims or otherwise have, individually or in the aggregate, a Material Adverse Effect, or (B) any Environmental Claims that, individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect;
(ii)Β Β Β Β Β Β Β Β as soon as practicable following the sending or receipt thereof by Holdings or any of its Subsidiaries, a
copy of any and all written communications with respect to (1) any Environmental Claims that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, (2) any Release of Hazardous Materials, which could
reasonably be expected to result in one or more Environmental Claims or otherwise have, individually or in the aggregate, a Material Adverse Effect and (3) any occurrence or condition on any real property adjoining, or in the vicinity of, any real
property which could reasonably be expected to result in one or more Environmental Claims or otherwise have, individually or in the aggregate, a Material Adverse Effect;
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(iii)Β Β Β Β Β Β Β Β Β prompt written notice describing in reasonable detail (1) any proposed acquisition of stock, assets, or
property by Holdings or any of its Subsidiaries that could reasonably be expected to (A) result in Environmental Claims the existence of which could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect or (B)
affect the ability of Holdings or any of its Subsidiaries to maintain in full force and effect all material governmental authorizations required under any Environmental Laws for their respective operations, except as could otherwise not reasonably be
expected to have a Material Adverse Effect and (2) any proposed action to be taken by Holdings or any of its Subsidiaries to modify current operations in a manner that could reasonably be expected to subject Holdings or any of its Subsidiaries to any
additional material obligations or requirements under any Environmental Laws, the existence of which could reasonably be expected to result in one or more Environmental Claims or otherwise have, individually or in the aggregate, a Material Adverse
Effect; and
(iv)Β Β Β Β Β Β Β Β with reasonable promptness, such other documents and information as from time to time may be reasonably
requested by Administrative Agent in relation to any matters disclosed pursuant to this Section 6.17(a).
(b)Β Β Β Β Β Β Β Hazardous Materials Activities, Etc.Β Such Credit Party shall promptly take, and shall cause each of its Restricted
Subsidiaries promptly to take, any and all actions necessary to (i) cure any violation of applicable Environmental Laws by such Credit Party or its Restricted Subsidiaries that could reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect and (ii) make an appropriate response to any Environmental Claim against such Credit Party or any of its Restricted Subsidiaries and discharge any obligations it may have to any Person thereunder where failure to do so could
reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
Negative Covenants
Until all principal of and interest on each Revolving Loan and all fees and other amounts payable hereunder have been paid in full (other than unmatured, surviving contingent indemnification
obligations not yet due and payable), all Revolving Commitments have been terminated and all Letters of Credit have been cancelled or have expired (or Cash Collateralized at the Minimum Cash Collateral Amount), each Credit Party, as applicable,
covenants and agrees with the Lenders that:
Section 7.01. Β Β Limitation on Certain Indebtedness. Such Credit Party shall not, nor shall it permit any of its Restricted Subsidiaries
to, incur, create, assume, suffer to exist any Indebtedness owed to Holdings, any Restricted Subsidiary or any other Affiliate of Holdings (other than Xxxxxxx Xxxxx & Co. LLC and any Affiliates thereof and, from and after the Mergers (provided that the Mergers are consummated on or prior to the Merger Outside Date), KKR and any Affiliates
thereof (other than in the case of KKR and its Subsidiaries,
any portfolio company of KKR or any of its Subsidiaries), but excluding Holdings and its Subsidiaries), except (a) Intercompany Indebtedness and (b) Indebtedness owed by Holdings or
aRestricted Subsidiary to any Affiliate of Holdings (other than Intercompany Indebtedness) that is
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unsecured and subordinated in right of payment to the Obligations on terms reasonably satisfactory to the Administrative Agent.
Section 7.02Β Β Β Β Β Β Β Β Β Liens.Β Such Credit Party shall not, nor shall
it permit any of its Restricted Subsidiaries to, directly or indirectly, create, assume, incur or suffer to exist any Lien on any property now owned or hereafter acquired by it, except for the following:
(a)Β Β Β Β Β Β Β Β Β Liens granted or to be granted by the Borrower under the Loan Documents;
(b)Β Β Β Β Β Β Β Β Liens on assets of Insurance Subsidiaries and Subsidiaries thereof securing (x) Operating Indebtedness, (y) obligations under
transactions entered into in connection with Insurance Investments and (z) statutory Liens on assets of Insurance Subsidiaries and Subsidiaries thereof;
(c)Β Β Β Β Β Β Β Β collateral (x) securing Permitted Swap Obligations or (y) securing captive financing arrangements entered into by an
Insurance Subsidiary;
(d)Β Β Β Β Β Β Β Β Liens for Taxes not yet due or for Taxes being contested in good faith and by appropriate proceedings and with respect to
which adequate reserves are being maintained in accordance with GAAP;
(e)Β Β Β Β Β Β Β Liens existing on the date hereof and listed on Schedule 7.02; provided that
(i) such Lien shall not apply to any additional property (other than after acquired title in or on such property and proceeds of the existing collateral in accordance with the document creating such Lien) and (ii) the Indebtedness secured thereby is
not increased;
(f)Β Β Β Β Β Liens incurred in the ordinary course of business in connection with workerβs compensation, unemployment insurance or other
forms of governmental insurance or benefits or to secure performance of tenders, statutory obligations, leases and contracts (other than for borrowed money) entered into in the ordinary course of business or to secure obligations on surety or appeal
bonds;
(g)Β Β Β Β Β Β Β Liens of mechanics, carriers, and materialmen and other like Liens imposed by law and arising in the ordinary course of
business in respect of obligations that in the case of this clause (g) are not overdue for more than sixty (60) days or that are being contested in good faith and by appropriate proceedings and with respect to which adequate reserves are
being maintained in accordance with GAAP;
(h)Β Β Β Β Β Β Β Β Liens incurred in connection with the collection or disposition of delinquent accounts receivable in the ordinary course of
business;
(i)Β Β Β Β Β Β Β Liens securing Capitalized Lease Liabilities or Purchase Money Debt in an aggregate principal amount not to exceed
$75,000,000 at any time outstanding; provided that such Liens are limited to the assets financed thereby;
(j)Β Β Β Β Β Β Β Β easements, rights-of-way, zoning restrictions, restrictions and other similar encumbrances incurred in the ordinary course of
business that do not secure any monetary
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obligation and which do not materially interfere with the ordinary course of business of the Credit Parties and their Restricted Subsidiaries;
(k)Β Β Β Β Β Β Β Β Liens on property of the Credit Parties and their Restricted Subsidiaries in favor of licensees and landlords securing
licenses, subleases or leases of property not otherwise prohibited hereunder;
(l)Β Β Β Β Β Β Β Β Β licenses, leases or subleases not otherwise prohibited hereunder granted to others not materially interfering in any
material respect in the business of the Credit Parties and their Restricted Subsidiaries;
(m)Β Β Β Β Β Β Β attachment or judgment Liens not constituting an Event of Default under Section 8.01(i);
(n)Β Β Β Β Β Liens arising from precautionary Uniform Commercial Code financing statement filings with respect to operating leases or
consignment arrangements entered into by Holdings and its Restricted Subsidiaries in the ordinary course of business;
(o)Β Β Β Β Β Liens incurred to secure Cash Management Obligations incurred in the ordinary course of business and in an aggregate amount
not to exceed $20,000,000 at any time outstanding and customary set-off rights in favor of depositary banks;
(p)Β Β Β Β Β Β Β Liens attaching solely to xxxx xxxxxxx money deposits required to be made under the terms of any letter of intent or purchase
agreement for the acquisition of stock, assets or property;
(q)Β Β Β Β Β Β Β Liens arising out of deposits by Holdings or any Restricted Subsidiary of cash, securities or other property (other than any
Capital Stock of any Restricted Subsidiary) securing obligations of such Person in respect of (i) trust arrangements formed in the ordinary course of business for the benefit of cedents to secure insurance and reinsurance recoverables owed to them by
any Insurance Subsidiary, or (ii) other security arrangements in connection with reinsurance agreements in the ordinary course of business; and
(r)Β Β Β Β Β Β Β Β Β other Liens on property (other than the Collateralized L/C Collateral) securing obligations with respect to Indebtedness not
otherwise covered by any of clauses (a) through (q) of this Section 7.02; provided that the aggregate amount of all Indebtedness secured by Liens in reliance on this clause (r)
shall not exceed the greater of (x) $325,000,000 and (y) 10% of the Net Worth of Holdings and its consolidated Restricted Subsidiaries at any time outstanding.
Notwithstanding the foregoing, none of the Credit Parties or Restricted Subsidiaries may directly or indirectly, create, assume, incur or suffer to exist any Lien on any Capital Stock of an Insurance
Subsidiary now owned or hereafter acquired by it.
Section 7.03Β Β Β Β Β Β Β Β Β Disposition of Assets.Β Such Credit Party
shall not, nor shall it permit any of its Restricted Subsidiaries to, Dispose of (whether in one or a series of transactions) any property (including accounts and notes receivable with or without recourse and Capital Stock of any of its Restricted
Subsidiaries whether newly issued or otherwise), except:
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(a)Β Β Β Β Β Β Β Β Β (i)Β Dispositions of inventory and equipment in the ordinary course of business and (ii) Dispositions of Cash Equivalents in
the ordinary course of business;
(b)Β Β Β Β Β Β Β Β the sale of equipment to the extent that such equipment is exchanged for credit against the purchase price of similar
replacement equipment or the proceeds of such sale are reasonably promptly applied to the purchase price of such replacement equipment;
(c)Β Β Β Β Β Β Β Dispositions of Insurance Investments by any Insurance Subsidiary (or any Subsidiary of an Insurance Subsidiary) (i) in the
ordinary course of business in compliance with the policies and procedures approved by the board of directors or the investment committee (or other applicable committee) of such Insurance Subsidiary (or such Subsidiary of an Insurance Subsidiary), or
which were otherwise approved by such board of directors or committee, or (ii) to a special purpose entity in exchange for investments therein (provided that such special purpose entity shall not create,
incur, issue, assume, guarantee or otherwise become directly or indirectly liable with respect to any Indebtedness pursuant to which the lender to such special purpose entity has recourse to any of the assets of Holdings or any Restricted Subsidiary
(other than the assets of such special purpose entity));
(d)Β Β Β Β Β Β Β Β Dispositions by a Credit Party to a Credit Party or any of its Restricted Subsidiaries or by any Restricted Subsidiary to a
Credit Party or any of its Restricted Subsidiaries; provided that the aggregate fair value of all property Disposed of in reliance on this clause (d) by Credit Parties to Restricted Subsidiaries that are not
Credit Parties shall not exceed $800,000,000;
(e)Β Β Β Β Β Β Β Β (i) any Dispositions pursuant to a Reinsurance Agreement entered into in the ordinary course of business and (ii) any other
Dispositions pursuant to a Reinsurance Agreement so long as the aggregate statutory profit and/or gains on insurance policy sales or other portfolio transfers resulting from all Dispositions described in this subclause (ii) consummated after
the Restatement Effective Date do not exceed $800,000,000 in the aggregate during the term of this Agreement;
(f)Β Β Β Β Β Β Β Β Β obsolete, surplus or worn out property disposed of by a Credit Party or any of its Restricted Subsidiaries in the ordinary
course of business of such Person;
(g)Β Β Β Β Β Β Β Β transfers resulting from any casualty or condemnation of property or assets;
(h)Β Β Β Β Β Β Β Β licenses or sublicenses of intellectual property and general intangibles and licenses, leases or subleases of other property
in the ordinary course of business of the Credit Parties and their Restricted Subsidiaries and which do not materially interfere with the business of the Credit Parties and their Restricted Subsidiaries;
(i)Β Β Β Β Β Β Β Β Dispositions of shares of Capital Stock in order to qualify members of the board of directors or equivalent governing body of
a Credit Party or Restricted Subsidiary or such other nominal shares required to be held other than by such Credit Party or Restricted Subsidiary, as required by applicable law;
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(j)Β Β Β Β Β Β Β Β Β the sale, discount, forgiveness or other compromise of notes or other accounts in the ordinary course of business or in
connection with collection thereof;
(k)Β Β Β Β Β Β Β issuances of Capital Stock (i) by a directly or indirectly Wholly-Owned Subsidiary of Holdings to Holdings or to one or more
Wholly-Owned Subsidiaries of Holdings (provided that except in compliance with Section 6.12 or Section 7.03(i), any direct Wholly-Owned Subsidiary of a Credit Party shall only issue Capital
Stock to such Credit Party), (ii) by a non-Wholly-Owned Subsidiary of Holdings to the respective equity holders of such non-Wholly-Owned Subsidiary, on a pro rata basis or (iii) by the IPO Entity pursuant to the IPO and any Post-IPO Offerings (so
long as no Event of Default shall have occurred and be continuing or would result therefrom); and
(l)Β Β Β Β Β Β Β Β Dispositions not otherwise permitted hereunder (other than pursuant to Reinsurance Agreements, which shall be subject to the
limitations in clause (e) above); provided that (i) the aggregate fair value of all property Disposed of in any Disposition made in reliance on this clause (l), together with the aggregate
fair value of all other property Disposed of in reliance on this clause (l), shall not exceed 20% of the Consolidated Total Assets of Holdings and its Restricted Subsidiaries at the time of such Disposition, (ii) each Disposition made in
reliance on this clause (l) shall be for fair market value and at least 75% of the consideration therefor shall be in the form of cash or Cash Equivalents and (iii) after giving effect to each Disposition made in reliance on this clause
(l), Holdings and its Restricted Subsidiaries shall be in compliance with Sections 7.10 and 7.11.
Except as otherwise permitted in Section 7.07, notwithstanding the foregoing no Credit Party or Restricted Subsidiary shall Dispose of (whether in one or a series of transactions) or otherwise cease
to hold any Capital Stock of (a)(i) any Subsidiary of Holdings that directly or indirectly owns any Capital Stock of any Insurance Subsidiary or (ii) any Insurance Subsidiary, in each case, whether newly issued or otherwise, other than in accordance
with clause (i), (k) or (l) above or (b) GA Bermuda or CwA.
Upon consummation of a sale, transfer or other Disposition permitted under this Section 7.03, (i) Liens created under the Collateralized L/C Security Documents in respect of the assets
Disposed of shall be automatically released and the Administrative Agent shall (to the extent applicable) deliver to the Borrower, upon the Borrowerβs request and at the Borrowerβs expense, such documentation as necessary to evidence the release of
the Administrative Agentβs security interests, if any, in the assets being Disposed of, including amendments or terminations of Uniform Commercial Code financing statements and (ii) in the case of a sale, transfer or other Disposition permitted under
this Section 7.03 of all of the Capital Stock of any Subsidiary that is a Guarantor to any Person other than Holdings or a Subsidiary of Holdings, the Guarantee of such Subsidiary shall be automatically released and the Administrative Agent
shall (to the extent applicable) deliver to the Borrower, upon the Borrowerβs request and at the Borrowerβs expense, such documentation as necessary to evidence the release of the Guarantee of such Subsidiary; provided
that the Borrower shall have provided to the Administrative Agent such certificates evidencing compliance with the Loan Documents as the Administrative Agent shall reasonably request.Β Notwithstanding anything to the contrary contained in this Section
7.03, (x) none of the Liens created under the Collateralized L/C Security Documents shall be released upon the IPO and (y) none of the Guarantees shall be released upon the IPO (other than the Guarantee of CwA
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Section 7.04Β Β Β Β Β Β Sales and Lease Backs.Β Such Credit Party shall
not, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectly, become or remain liable as lessee or as a guarantor or other surety with respect to any lease of any property (whether real, personal or mixed), whether now owned
or hereafter acquired, which such Credit Party or Restricted Subsidiary (a) has sold or transferred or is to sell or to transfer to any other Person (other than Holdings or any of its Restricted Subsidiaries), or (b) intends to use for substantially
the same purpose as any other property which has been or is to be sold or transferred by such Credit Party or Restricted Subsidiary to any Person (other than Holdings or any of its Restricted Subsidiaries) in connection with such lease.
Section 7.05.Β Β Β Β Β Β Β Transactions with
Affiliates. Such Credit Party shall not, and shall not suffer or permit any of its Restricted Subsidiaries to, enter into any transaction with any Affiliate of Holdings, other than (a)
transactions no less favorable to such Credit Party or Restricted Subsidiary than would be obtained in a comparable armβs-length transaction with a Person that is not an Affiliate of Holdings, (b) insurance transactions, intercompany pooling and
other reinsurance transactions entered into in the ordinary course of business and consistent with past practice, (c) transactions between or among Holdings and its Restricted Subsidiaries and between or among Restricted Subsidiaries, (d) any
Restricted Payment permitted by Section 7.08, (e) arrangements for indemnification payments for directors and officers of Holdings and its Restricted Subsidiaries, (f) intercompany transactions between or among theΒ Parent, GAFLGAFGL, (prior to the Mergers) GAFLL, (from and after the Mergers;Β provided that
the Mergers are consummated on or prior to the Merger Outside Date) KKR or any of its Subsidiaries (including Magnolia), Holdings and its Restricted Subsidiaries andΒ between or among Restricted Subsidiaries, relating to
any or all of the (i) provision of management services and other corporate overhead services, (ii) provision of personnel to other locations within Holdingsβ consolidated group on a temporary basis, and (iii) provision, purchase or lease of
services, operational support, assets, equipment, data, information and technology, that, in the case of any such intercompany transaction referred to in this clause (f), are subject to reasonable reimbursement or cost-sharing
arrangements (as determined in good faith by Holdings), which reimbursement or cost-sharing arrangements may be effected through transfers of cash or other assets or through book-entry credits or debits made on the ledgers of each involved
Subsidiary; provided that any such intercompany transaction is either (1) entered into in the ordinary course of business or (2) otherwise
entered into pursuant to the reasonable requirements of the business of Holdings and the Restricted Subsidiaries, (g) transactions entered into in connection with the IPO or any Post-IPO Offerings (including various shareholder agreements), (h)
ordinary-course business transactions (other than transactions of the type described in clause (c) or (f) above) that (A) do not involve the sale, transfer or other Disposition of operations or assets and (B) do not materially
adversely affect the Lenders and (i) loans, Investments and guarantees among Holdings and the Restricted Subsidiaries to the extent not prohibited under this Article 7.
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Section 7.06Β Β Β Β Β Β Β Β Change in Business.Β Such Credit Party shall
not, and shall not suffer or permit any of its Restricted Subsidiaries to, engage in any business other than the businesses conducted by the Credit Parties and their Restricted Subsidiaries on the date of this Agreement or any business reasonably
related, incidental or complementary thereto as reasonably determined by the board of directors of Holdings or such Person.
Section 7.07Β Β Β Β Β Β Fundamental Changes.Β Such Credit Party shall
not, and shall not suffer or permit any of its Restricted Subsidiaries to, merge, consolidate, amalgamate or sell all or substantially all of the assets of any Credit Party or any of its Restricted Subsidiaries, or liquidate, wind up or dissolve
itself (or suffer any liquidation or dissolution), except if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing, (a) any Restricted Subsidiary that is not a Credit Party may
merge, consolidate, amalgamate or sell all or substantially all of its assets to another Restricted Subsidiary that is not a Credit Party; provided that, if either such Restricted Subsidiary is a direct
Subsidiary of a Credit Party, the surviving entity or the transferee entity, as applicable, shall be a direct Subsidiary of a Credit Party; (b) any Restricted Subsidiary that is a Credit Party (other than the Borrower) may merge, consolidate,
amalgamate or sell all or substantially all of its assets to another Restricted Subsidiary that is a Credit Party (including the Borrower); provided that the surviving entity or the transferee entity, as
applicable, shall be a Credit Party; provided, further, that, in the event that any of the foregoing involves the Borrower, the surviving entity or the transferee
entity, as applicable, shall be the Borrower; (c) the Borrower may merge, consolidate, amalgamate or sell all or substantially all of its assets to a Restricted Subsidiary owned directly by Holdings or the Borrower immediately prior to such
transactions; provided that (i) the surviving entity of a merger with the Borrower or the transferee entity that receives all or substantially all of the Borrowerβs assets, as applicable (the βSuccessor Entityβ), shall be a corporation or limited liability company organized and existing under the laws of the United States, any State thereof or the District of Columbia and shall expressly assume all of
the obligations of the Borrower under the Loan Documents pursuant to documentation in form and substance reasonably satisfactory to the Administrative Agent, (ii) immediately after giving effect to such merger, consolidation, amalgamation or sale, as
applicable, no Default or Event of Default shall have occurred and be continuing or would result therefrom, (iii) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation,
amalgamation or sale, as applicable, shall execute and deliver a reaffirmation agreement with respect to its obligations under the other Loan Documents in form and substance reasonably satisfactory to the Administrative Agent, (iv) the Successor
Entity shall provide the documentation and other information to the Administrative Agent as the Administrative Agent and the Lenders reasonably determine are required by bank regulatory authorities under applicable βknow-your-customerβ and Anti-Money
Laundering Laws, including the PATRIOT Act; provided that, the Borrower shall have notified the Administrative Agent in writing at least seven (7) Business Days prior to such merger, consolidation,
amalgamation or sale, as applicable, and each Lender shall have been provided with documentation and other information it reasonably determines are required by bank regulatory authorities under applicable βknow-your-customerβ and Anti-Money
Laundering Laws, including the PATRIOT Act, at least five (5) Business Days prior to the consummation of such merger, consolidation, amalgamation or sale, as applicable, as has been reasonably requested in writing at least six (6) Business Days prior
to such merger, consolidation, amalgamation or sale, as applicable, and (v) the Successor Entity shall deliver an officerβs certificate to the Administrative Agent to the effect that after
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giving effect to such merger, consolidation, amalgamation or sale, as applicable, no Default or Event of Default shall have occurred and be continuing or would result therefrom (it being understood and agreed that, if
the foregoing conditions under clauses (i) through (v) are satisfied, the Successor Entity will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents); and (d) any of its Restricted Subsidiaries that is
not a Credit Party may liquidate, wind up or dissolve so long as the assets of such Restricted Subsidiary are distributed to a Guarantor; provided that, no such action pursuant to clause (a), (b),
(c) or (d) above is permitted if such action could reasonably be expected, in the judgment of Holdings, to (i) have a material adverse effect on the Lenders, (ii) be disproportionately beneficial to the holders of the Senior Notes or
any Material Indebtedness of Holdings or its Restricted Subsidiaries as compared to the Lenders or (iii) be disproportionately adverse to the Lenders as compared to such other holders.
Section 7.08Β Β Β Β Β Β Β Β Β Β Restricted Payments.Β Such Credit Party shall
not, and shall not suffer or permit any of its Restricted Subsidiaries to, declare or pay any dividend on (or make any payment to a related trust for the purpose of paying a dividend), or make any payment on account of, or set apart assets for a
sinking or other analogous fund for, the purchase, redemption, defeasance, retirement or other acquisition of, any Capital Stock of a Credit Party or such Restricted Subsidiary (or any related trust), whether now or hereafter outstanding, or make any
other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of a Credit Party or such Restricted Subsidiary (collectively, βRestricted Paymentsβ), except
that:
(a)Β Β Β Β Β Β Β Β any of its Restricted Subsidiaries may declare or pay dividends with respect to its Capital Stock to Holdings and to any
Wholly-Owned Subsidiary (and in the case of a non-Wholly-Owned Subsidiary, to Holdings and any of its Restricted Subsidiaries and to each other owner of Capital Stock or other equity interests of such Restricted Subsidiary on a pro rata basis based
on their relative ownership interests);
(b)Β Β Β Β Β Β Β Β Holdings may pay dividends solely in the form of shares of its Capital Stock;
(c)Β Β Β Β Β Β Holdings may make Restricted Payments so long as no Default or Event of Default shall have occurred and be continuing or would
result therefrom;
(d)Β Β Β Β Β Β Β Β Holdings may make cash payments in lieu of fractional shares in connection with the exercise of warrants, options or other
securities, convertible or exchangeable for Capital Stock; and
(e)Β Β Β Β Β Β Β Β Holdings may pay any dividend within sixty (60) days after the date of declaration thereof; provided that on the date of declaration such payment shall comply with one of the exceptions to this Section 7.08 listed in clauses (b) through (d) hereof.
Section 7.09Β Β Β Β Β Β Β Β Β Β Prepayment of Certain Indebtedness; Modifications of
Certain Agreements; Synthetic Purchase Agreements.
(a)Β Β Β Β Β Β Β Β Such Credit Party shall not, nor shall it suffer or permit any of its Restricted Subsidiaries to, pay or make, directly or
indirectly, any payment or other distribution (whether in cash, securities or other property, and including optional prepayments and open market
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purchases) of or in respect of principal of or interest on any Subordinated Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, defeasance or termination of any Subordinated Indebtedness, other than (i) payment of regularly scheduled principal and interest payments as and when due in respect thereof, other than any payment
prohibited by the subordination provisions thereof, (ii) to the extent the consideration thereof consists of Capital Stock of Holdings or (iii) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom.
(b)Β Β Β Β Β Β Β Β Such Credit Party shall not, nor shall it permit any of its Restricted Subsidiaries to, amend, modify, waive or otherwise
change, or consent to any amendment, modification, waiver or other change to, the subordination provisions within documents or instruments governing or evidencing any Subordinated Indebtedness in any manner adverse in any material respect to the
Lenders.
(c)Β Β Β Β Β Β Β Β Such Credit Party shall not, nor shall it permit any of its Restricted Subsidiaries to, amend or modify its respective
Organization Documents, other than any amendments or modifications which are not adverse in any material respect to the interests of the Lenders.
(d)Β Β Β Β Β Β Β Such Credit Party shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into or be party to, or make any
payment under, any Synthetic Purchase Agreement.
Section 7.10Β Β Β Β Β Β Β Β Debt to Total Capitalization Ratio.Β Holdings
shall not permit the Debt to Total Capitalization Ratio of Holdings as at the end of any Fiscal Quarter to be more than 35% for Holdings and its consolidated Restricted Subsidiaries.
Section 7.11.Β Β Β Β Β Β Β Β Holdings Net Worth. Holdings shall not permit the GAAP Net Worth of Holdings and its consolidated Restricted Subsidiaries, at all times when such calculations are available and, in any event, at the end of any calendar month, to be less than the sum
of 70% of the Net Worth of CwA MidCoGAFL and its consolidated Restricted Subsidiaries as of the last day of the Fiscal Quarter most recently ended prior to the Restatement Effective Date, plus 50% of the aggregate Net Income since the last day of the Fiscal Quarter most recently ended prior to the Restatement Effective Date for Holdings and
its consolidated Restricted Subsidiaries (to the extent positive).
(a)Β Β Β Β Β Β Β Β Such Credit Party shall not, and shall not permit any of its Restricted Subsidiaries or, to the Knowledge of such Credit
Party, any of such Credit Partyβs or any of its Subsidiariesβ officers, directors or employees to (i) become an Embargoed Person or (ii) except as otherwise authorized by OFAC or any other relevant sanctions authority, otherwise permitted for U.S.
persons by a U.S. Governmental Authority or by any rule, regulation or order of a U.S. Governmental Authority, use any proceeds of the Revolving Loans, or lend, contribute or otherwise make available such proceeds to any Person for the purpose of
financing the activities of or with any Person or in any country or territory that is an Embargoed Person.
(b)Β Β Β Β Β Β Β Except as otherwise authorized by OFAC or any other relevant sanctions authority, such Credit Party shall not and shall not
permit any of its Restricted Subsidiaries or, to
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the Knowledge of Holdings or the Borrower, any of such Credit Partyβs or any of its Subsidiariesβ officers, directors or employees to (i) conduct any business or engage in making or receiving any contribution of funds,
goods or services to or for the benefit of any Embargoed Person, (ii) deal in, or otherwise engage in any transaction related to, any property or interests in property blocked pursuant to any applicable Economic Sanctions Laws or (iii) engage in or
conspire to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the applicable prohibitions set forth in any Economic Sanctions Laws.
Section 7.13Β Β Β Β Β Β Β Β Β Restrictive Agreements.Β Such Credit Party
shall not, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition on (a) the ability of Holdings or any of
its Restricted Subsidiaries to create or permit to exist any Lien on any of its property to secure the Obligations or (b) the ability of any of its Restricted Subsidiaries to pay dividends or other distributions with respect to any shares of its
Capital Stock (other than dividends or distributions on the Capital Stock of Holdings or the Borrower) or to make, repay or prepay intercompany loans or advances to Holdings or any other Restricted Subsidiary or to Dispose of assets to Holdings or
any other Restricted Subsidiary; provided that (i) the foregoing shall not apply to restrictions and conditions imposed by applicable law (including pursuant to regulatory restrictions), (ii) the foregoing
shall not apply to restrictions and conditions existing on the date hereof and under any document evidencing the Senior Notes or identified on Schedule 7.13 (but shall apply to any amendment or modification, or any extension or renewal, of
any such restriction or condition that has the effect of making such restriction or condition materially more restrictive), (iii) the foregoing shall not apply to restrictions that are not more restrictive than those contained in this Agreement
contained in any documents governing any Indebtedness not prohibited by this Agreement, (iv) clause (a) of this Section 7.13 shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness or
other obligations permitted to be secured hereunder (including Capitalized Lease Liabilities and Purchase Money Debt) not prohibited by this Agreement if such restrictions or conditions apply only to the collateral securing such Indebtedness or such
other obligations permitted to be secured hereunder, (v) clause (a) of this Section 7.13 shall not apply to customary provisions in leases or licenses or other contracts and agreements restricting the assignment, subletting or
sublicensing thereof and (vi) this Section 7.13 shall not apply to (A) any of its Restricted Subsidiaries that is not a Wholly-Owned Subsidiary with respect to restrictions and conditions imposed by such Restricted Subsidiaryβs Organization
Documents or any related joint venture or similar agreement so long as any such restriction or condition applies only to such Subsidiary and to any Capital Stock in such Restricted Subsidiary, (B) restrictions and conditions imposed on any of its
Restricted Subsidiaries in existence at the time such Restricted Subsidiary became a Subsidiary (but shall apply to any amendment or modification expanding the scope of any such restriction or condition which makes such restrictions and conditions,
taken as a whole, materially more restrictive); provided that such restrictions and conditions (x) apply only to such Restricted Subsidiary and (y) were not imposed in anticipation of the Facility, (C)
customary provisions contained in leases, sub-leases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other agreements, in each case entered into in the ordinary course of business; provided that such provisions apply only to the assets that are the subject of such lease, sub-lease, license, sub-license or other agreement and shall not apply to any other assets of Holdings or any of its
Restricted Subsidiaries and (D) restrictions on pledging
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joint venture interests included in customary provisions in joint venture agreements or arrangements and other similar agreements applicable to joint ventures.
Section 7.14Β Β Β Β Β Β Β Β Β Holding Company Activities.Β Notwithstanding
anything herein to the contrary, each of Holdings and the Borrower shall not (a) incur, directly or indirectly, any Indebtedness other than the Indebtedness not prohibited to be incurred by them under this Agreement; (b) create or suffer to exist any
Lien upon any property or assets now owned or hereafter acquired, leased or licensed by it other than the Liens (x) created under the Collateralized L/C Security Documents to which it is a party and (y) permitted pursuant to Section 7.02; (c)
engage in any business other than as permitted by this Agreement; (d) merge, consolidate or amalgamate with, or sell all or substantially all of its assets to, any other Person except as permitted by Section 7.07; (e) sell or otherwise
dispose of any Capital Stock of any of its Subsidiaries other than as permitted to be disposed by them under this Agreement; or (f) fail to hold itself out to the public as a legal entity separate and distinct from all other Persons.
Section 7.15Β Β Β Β Β Β Β Β Changes in Accounting Policies; Fiscal Year.Β
Such Credit Party shall not, nor shall it permit any of its Restricted Subsidiaries to, (a) make any change to its accounting policies or reporting practices, except as required or permitted by GAAP or SAP or applicable securities laws or (b) change
the last day of its fiscal year from December 31 of each year.
Events of Default
Section 8.01Β Β Β Β Β Β Β Β Β Β Events of Default.Β Each of the following
shall constitute an βEvent of Defaultβ:
(a)Β Β Β Β Β Β Non-Payment.Β The Borrower fails to pay (i) when and as required to be paid herein, whether at the due date thereof or
at a date fixed for prepayment thereof or otherwise, any amount of principal of any Revolving Loans, or (ii) within five (5) Business Days after the same becomes due, any interest, fee or any other amount payable hereunder (including pursuant to Sections
2.02(h) or 2.02(l)(vi)) or under any other Loan Document; or
(b)Β Β Β Β Β Β Β Representation or Warranty.Β Any representation or warranty by any Credit Party made or deemed made herein or in any
other Loan Document (other than any Collateralized L/C Security Document) or any amendment or modification hereof or thereof or waiver hereunder or thereunder, or contained in any certificate, document or financial or other written statement by a
Credit Party, any Restricted Subsidiary or any Responsible Officer, furnished at any time in connection with this Agreement or in any other Loan Document (other than any Collateralized L/C Security Document) or any written amendment or modification
hereof or thereof or waiver hereunder or thereunder, is incorrect in any material respect on or as of the date made or deemed made; or
(c)Β Β Β Β Β Β Β Specific Defaults.Β Any Credit Party fails to perform or observe any term, covenant or agreement contained in any of Section
6.03(a), Section 6.04(a) (with respect to corporate existence), or Article 7 on its part to be performed; or
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(d)Β Β Β Β Β Β Β Other Defaults.Β Any Credit Party or any of their Restricted Subsidiaries fails to perform or observe any other term or
covenant contained in this Agreement (other than Section 2.02(l)(vi)) or any other Loan Document (other than any Collateralized L/C Security Document) on its part to be performed, and such default shall continue unremedied for a period of
thirty (30) days after the date upon which written notice thereof is given to the Borrower by the Administrative Agent or the Required Lenders; or
(e)Β Β Β Β Β Β Β Cross-Default.Β (i) Any Credit Party or any of their Restricted Subsidiaries (A) fails to make any payment in respect
of the Senior Notes or any Material Indebtedness (other than in respect of Swap Contracts), when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) beyond the applicable grace or cure period thereunder or (B)
fails to perform or observe any other condition or covenant, or any other event shall occur or condition exist, under any agreement or instrument relating to any such Indebtedness beyond the applicable grace or cure period thereunder if the effect of
such failure, event or condition is to cause, or to permit (or, with the giving of notice or lapse of time or both, would permit) the holder or holders of the Senior Notes or any Material Indebtedness or beneficiary or beneficiaries of such
Indebtedness (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, the Senior Notes or any Material Indebtedness to be declared to be due and payable prior to its stated maturity; or (ii) there occurs
under any Swap Contract an Early Termination Date (as defined in such Swap Contract) resulting from (x) any event of default under such Swap Contract as to which a Credit Party or any Restricted Subsidiary is the Defaulting Party (as defined in such
Swap Contract) or (y) any Termination Event (as so defined) as to which any Credit Party or any of their Restricted Subsidiaries is an Affected Party (as so defined), and, in either event, the Swap Termination Value owed by a Credit Party or such
Restricted Subsidiary as a result thereof is greater than $75,000,000 (in the aggregate for all such Swap Contracts) beyond the applicable grace or cure period thereunder (and, in the case of clause (y), a Credit Party or such Restricted Subsidiary
fails to pay such Swap Termination Value when due beyond the applicable grace or cure period thereunder); provided, however, that no Default or Event of Default shall
be deemed to occur under clause (i)(B) of this Section 8.01(e) in respect of the failure to perform or observe any such condition or covenant, or the occurrence of any such event or existence of any such condition, under any agreement
or instrument relating to any Material Indebtedness owing to the Federal Home Loan Bank of Boston that is cured, remedied or otherwise resolved within five (5) Business Days of the occurrence thereof and prior to such Material Indebtedness being
declared to be due and payable prior to its stated maturity; or
(f)Β Β Β Β Β Β Β Β Insolvency; Voluntary Proceedings.Β Any Credit Party or any Restricted Subsidiary of Holdings (i) generally fails to
pay, or admits in writing its inability to pay, its debts as they become due, subject to applicable grace periods, if any, whether at stated maturity or otherwise; (ii) voluntarily ceases to conduct its business in the ordinary course; (iii)
commences any Insolvency Proceeding with respect to itself; (iv) applies for or consents to the appointment of a receiver, trustee, custodian, conservator, liquidator, mortgagee in possession (or agent therefor) or other similar Person for itself or
for a substantial part of its assets; or (v) takes any corporate action to effectuate or authorize any of the foregoing; or
(g)Β Β Β Β Β Β Β Β Involuntary Proceedings.Β (i) Any involuntary Insolvency Proceeding is commenced or filed against any Credit Party or
any Restricted Subsidiary of Holdings, or any
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writ, judgment, warrant of attachment, execution or similar process, is issued or levied against a substantial part of any Credit Partyβs or any Restricted Subsidiaryβs properties, and any such proceeding or petition
shall not be dismissed, or such writ, judgment, warrant of attachment, execution or similar process shall not be released, vacated or fully bonded within sixty (60) days after commencement, filing or levy; (ii) any Credit Party or any Restricted
Subsidiary of Holdings admits the material allegations of a petition against it in any Insolvency Proceeding, or an order for relief (or similar order under non-U.S. law) is ordered in any Insolvency Proceeding; (iii) any Credit Party or any
Restricted Subsidiary of Holdings acquiesces in the appointment of a receiver, trustee, custodian, conservator, liquidator, mortgagee in possession (or agent therefor) or other similar Person for itself or a substantial portion of its property or
business; or (iv) any Credit Party or any Restricted Subsidiary of Holdings shall become subject to any conservation, rehabilitation or liquidation order, directive or mandate issued by any Governmental Authority; or
(h)Β Β Β Β Β Β Β Β Pension Plans and Welfare Plans.Β With respect to any Single Employer Pension Plan or Multiemployer Plan, any ERISA
Event has occurred that could reasonably be expected to result in the incurrence of liability by Holdings, or any of its Restricted Subsidiaries, or steps are taken to terminate any Multiemployer Plan and such termination could reasonably be expected
to result in any liability of Holdings, or any of its Restricted Subsidiaries, where in any event, individually or in the aggregate, the liability incurred by Holdings and its Restricted Subsidiaries could have a Material Adverse Effect; or
(i)Β Β Β Β Β Β Β Β Material Judgments.Β One or more monetary judgments or decrees shall be entered against any Credit Party or any of its
Restricted Subsidiaries involving in the aggregate a liability (not paid or fully covered by insurance as to which the relevant insurance company has not denied coverage) of $75,000,000 or more, and all such judgments or decrees shall not have been
paid, vacated, discharged, stayed or bonded pending appeal within sixty (60) days from the entry thereof, or any action shall be taken by a judgment creditor to attach or levy upon any asset of any Credit Party or any of their Restricted Subsidiaries
to enforce any such judgment or decree; or
(j)Β Β Β Β Β Β Β Material Regulatory Matters.Β (i) Any Insurance Subsidiary shall not make a scheduled payment of interest or principal
on any surplus note or similar form of indebtedness (due to actions (as opposed to any inaction) of any Governmental Authority), (ii) any Insurance Subsidiaryβs ability to pay fees to its Affiliates under existing agreements (or extensions of
existing agreements) shall be restricted (due to actions (as opposed to any inaction) of any Governmental Authority) or (iii) in any Fiscal Year, an Insurance Subsidiaryβs ability to pay dividends to its stockholders is restricted in any manner (due
to actions (as opposed to any inaction) of any Governmental Authority), other than by restrictions relating to dividends that apply generally to other insurance companies domiciled in the Insurance Subsidiaryβs state of domicile under the insurance
law of the state, and (1) in the cases of subclauses (i) through (iii) above, such event or condition, together with all other such events or conditions, could reasonably be expected to have a Material Adverse Effect and (2) in each
case, such event or condition was not in effect as of the date hereof; or
(k)Β Β Β Β Β Β Β Β Change of Control.Β There occurs any Change of Control; or
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(l)Β Β Β Β Β Β Β Β Β Invalidity of Loan Documents.Β Any provision of any Loan Document (other than any Collateralized L/C Security
Document), at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or satisfaction in full of all Obligations, ceases to be in full force and effect; or any Credit Party contests in
writing the validity or enforceability of any provision of any Loan Document (other than any Collateralized L/C Security Document); or any Credit Party denies in writing that it has any further liability or obligation under any provision of any Loan
Document (other than any Collateralized L/C Security Document), or purports to revoke, terminate or rescind any provision of any Loan Document (other than any Collateralized L/C Security Document).
Section 8.02Β Β Β Β Β Β Β Β Β Remedies.Β If any Event of Default shall have
occurred and be continuing, the Administrative Agent shall, at the request of, or may, with the consent of, the Required Lenders:
(a)Β Β Β Β Β Β Β Β declare the obligation of each Lender to make extensions of the Revolving Loans or issuances, extensions or renewals of
Letters of Credit to be terminated;
(b)Β Β Β Β Β Β Β declare the unpaid principal amount of all outstanding Revolving Loans, all interest accrued and unpaid thereon and all other
amounts owing or payable hereunder or under any other Loan Document to be immediately due and payable, whereupon such outstanding principal amount of the Revolving Loans, all interest accrued and unpaid thereon and all other amounts owing or payable
hereunder or under any other Loan Document shall become immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower;
(c)Β Β Β Β Β Β Β Β Β exercise on behalf of itself and the Lenders all rights and remedies available to it and the Lenders under the Loan
Documents or applicable law;
(d)Β Β Β Β Β Β Β exercise on behalf of itself and the Secured Parties all rights and remedies available to it and the Secured Parties under the
Collateralized L/C Security Documents or applicable law;
provided that upon the occurrence of any event specified in Section 8.01(f) or Section 8.01(g)
(upon the expiration of the 60-day period mentioned therein, if applicable), the obligation of each Lender to make Revolving Loans or issue, extend or renew Letters of Credit shall automatically terminate and the unpaid principal amount of all
outstanding Revolving Loans and all interest and other amounts as aforesaid shall automatically become due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower.
Section 8.03Β Β Β Β Β Β Β Β Β Rights Not Exclusive.Β The rights provided for
in this Agreement and the other Loan Documents are cumulative and are not exclusive of any other rights, powers, privileges or remedies provided by law or in equity, or under any other instrument, document or agreement now existing or hereafter
arising.
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The Agents
Section 9.01Β Β Β Β Β Β Β Β Appointment and Authority.Β Each of the Lenders
hereby irrevocably appoints RBC to act on its behalf as the Administrative Agent hereunder and the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the
Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto.Β The provisions of this Article 9 are solely for the benefit of the Administrative Agent, the Arrangers, the
Bookrunners, the Syndication Agents, the Documentation Agents and the Lenders, and neither the Borrower nor any other Credit Party shall have rights as a third-party beneficiary of any of such provisions (other than Sections 9.06 and 9.10).
Section 9.02Β Β Β Β Β Β Β Β Β Β Rights as a Lender.Β The Person serving as
the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and the term βLenderβ or βLendersβ shall, unless
otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder in its individual capacity.Β Such Person and its Affiliates may accept deposits from, lend money to, act as the
financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Borrower, any Credit Party or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and
without any duty to account therefor to the Lenders.
Section 9.03Β Β Β Β Β Β Β Β Β Β Exculpatory Provisions.Β No Agent-Related
Person shall have any duties or obligations except those expressly set forth herein and in the other Loan Documents.Β Without limiting the generality of the foregoing, no Agent-Related Person:
(a)Β Β Β Β Β Β Β Β Β shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing;
(b)Β Β Β Β Β Β shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and
powers expressly contemplated hereby or by the other Loan Documents that it is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the
other Loan Documents); provided that no Agent-Related Person shall be required to take any action that, in its opinion or the opinion of its counsel, may expose such Agent-Related Person to liability or that
is contrary to any Loan Document or applicable law; and
(c)Β Β Β Β Β Β Β Β shall, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, or shall be liable
for the failure to disclose, any information relating to Holdings or any of its Affiliates that is communicated to or obtained by the Person serving as the Administrative Agent, any Agent-Related Person or any of their respective Affiliates in any
capacity.
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No Agent-Related Person shall be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as
shall be necessary, or as such Person shall believe in good faith shall be necessary, under the circumstances as provided in Sections 8.02 and 10.01) or (ii) in the absence of such Agent-Related Personβs own gross negligence or
willful misconduct.Β No Agent-Related Person shall be deemed to have knowledge of any Default unless and until notice describing such Default is given to such Agent-Related Person by the Borrower or a Lender.
No Agent-Related Person shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other
Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or
conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document or (v) the satisfaction
of any condition set forth in Article 4 or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to such Agent-Related Person.
Section 9.04Β Β Β Β Β Β Β Β Β Reliance by Administrative Agent.Β The
Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or
intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person.Β The Administrative Agent also may rely upon any statement made to it orally or by telephone
and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon.Β In determining compliance with any condition hereunder to the making of a Revolving Loan that by its terms must be fulfilled to the
satisfaction of a Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender unless the Administrative Agent shall have received notice to the contrary from such Lender prior to the making of such Revolving Loan.Β
The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of
any such counsel, accountants or experts.
Section 9.05Β Β Β Β Β Β Β Β Β Delegation of Duties.Β The Administrative
Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by it.Β The Administrative Agent and any such sub-agent may perform any and
all of its duties and exercise its rights and powers by or through their respective Related Parties.Β The exculpatory provisions of this Article 9 shall apply to any such sub-agent selected by the Administrative Agent with reasonable care and
to the Related Parties of the Administrative Agent, and shall apply to their respective activities in connection with the syndication of the Facility as well as activities as Administrative Agent.
Section 9.06Β Β Β Β Β Β Β Β Β Resignation of Administrative Agent.Β The
Administrative Agent may at any time give notice of its resignation to the Lenders and the Borrower.Β Upon receipt of any such notice of resignation, the Required Lenders shall have the right, with the consent of the Borrower (such consent not to be
unreasonably withheld, conditioned or delayed), to appoint a
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successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States.Β If no such successor shall have been so appointed by the Required Lenders and
shall have accepted such appointment within thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may on behalf of the Lenders, appoint a successor Administrative Agent
meeting the qualifications set forth above; provided that if the Administrative Agent shall notify the Borrower and the Lenders that no qualifying Person has accepted such appointment, then such resignation
shall nonetheless become effective in accordance with such notice and (1) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral
security held by the Administrative Agent on behalf of the Lenders under any of the Loan Documents, the retiring Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed)
and (2) all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender directly, until such time as the Required Lenders appoint a successor Administrative
Agent, with the consent of the Borrower (such consent not to be unreasonably withheld, conditioned or delayed), as provided for above in this Section 9.06.Β Upon the acceptance of a successorβs appointment as Administrative Agent hereunder,
such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be discharged from all of its duties and
obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section 9.06).Β The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to
its predecessor unless otherwise agreed between the Borrower and such successor.Β After the retiring Administrative Agentβs resignation hereunder and under the other Loan Documents, the provisions of this Article 9 and Sections 10.04
and 10.05 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring
Administrative Agent was acting as Administrative Agent.
Section 9.07Β Β Β Β Β Β Β Β Β Non-Reliance on Administrative Agent and Other
Lenders.Β Each Lender acknowledges that it has, independently and without reliance upon any Agent-Related Person, any Arranger, any Bookrunner, any Syndication Agent, any Documentation Agent or any other Lender or any of their Related
Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement.Β Each Lender also acknowledges that it will, independently and without reliance upon any
Agent-Related Person, any Arranger, any Bookrunner, any Syndication Agent, any Documentation Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.
Section 9.08Β Β Β Β Β Β Β No Other Duties; Other Agents; Etc.Β Each of
RBC, US Bank and Xxxxx Fargo are hereby appointed Syndication Agents hereunder, and each Lender hereby authorizes RBC, US Bank and Xxxxx Fargo to act as Syndication Agents in accordance with the terms hereof and the other Loan Documents.Β Each of
Bank of Nova Scotia, BMO and KeyBank are hereby appointed Documentation Agents hereunder, and each Lender hereby authorizes Bank of
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Nova Scotia, BMO and KeyBank to act as Documentation Agents in accordance with the terms hereof and the other Loan Documents.Β The Syndication Agents, Documentation Agents and any other Agent may resign from such role
at any time, with immediate effect, by giving prior written notice thereof to the Administrative Agent and the Borrower.Β Anything herein to the contrary notwithstanding, none of the Arrangers, Bookrunners, Syndication Agents or Documentation Agents
listed on the cover page hereof shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the Administrative Agent or a Lender hereunder.
Section 9.09Β Β Β Β Β Β Β Administrative Agent May File Proofs of Claim.Β
In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to any Credit Party, the Administrative Agent (irrespective of whether the
principal of the Revolving Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered, by
intervention in such proceeding or otherwise:
(a)Β Β Β Β Β Β Β to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Revolving
Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Lenders and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders and the Administrative Agent under Sections 2.02, 2.08, 10.04 and 10.05)
allowed in such judicial proceeding; and
(b)Β Β Β Β Β Β Β Β to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;
(c)Β Β Β Β Β Β Β Β and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent
any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Sections 2.02, 2.08, 10.04
and 10.05.
Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement,
adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.
Section 9.10Β Β Β Β Β Β Β Β Β Β Collateral and Guarantee Matters.Β The
Lenders irrevocably authorize the Administrative Agent to:
(a)Β Β Β Β Β Β Β release (x) any Guarantor from the Guarantee or (y) any Lien on any property granted to or held by the Administrative Agent
under any Loan Document, (i) upon payment in
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full of all Obligations (other than unmatured, surviving contingent indemnification obligations) and the termination of all Revolving Commitments and the cancellation or expiration of all Letters of Credit (or Cash
Collateralization of outstanding Letters of Credit at the Minimum Cash Collateral Amount), (ii) as expressly permitted under the Loan Documents, (iii) in connection with a merger, consolidation, amalgamation or sale of all or substantially all of the
assets of a Restricted Subsidiary that is a Guarantor with or to the Borrower in accordance with Section 7.07(b) or (iv) in the case of clause (y), subject to Section 10.01, if approved, authorized or ratified in writing by
Lenders having or holding Revolving Exposure and unused Revolving Commitments representing more than 66-2/3% of the aggregate Revolving Exposure and unused Revolving Commitments of all Revolving Lenders (provided
that the aggregate amount of Revolving Exposure shall be determined with respect to any Defaulting Lender by disregarding the Revolving Exposure of such Defaulting Lender); and
(b)Β Β Β Β Β Β Β Β subordinate any Lien on any property granted to or held by the Administrative Agent under any Loan Document to the holder of
any Lien on such property that is permitted by Section 7.02(j).
Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing the authority of the Administrative Agent to release or subordinate its interest in particular types
or items of property, pursuant to this Section 9.10.
Section 9.11Β Β Β Β Β Β Β Β Indemnification of Agent-Related Persons.Β
Whether or not the transactions contemplated hereby are consummated, the Lenders shall indemnify upon demand each Agent-Related Person (to the extent not reimbursed by or on behalf of the Borrower and without limiting the obligation of the Borrower
to do so), ratably according to their respective portions of the total Revolving Loans and unused Revolving Commitments held on the date on which indemnification is sought, and hold harmless each Agent-Related Person from and against any and all
Indemnified Liabilities incurred by it; provided that no Lender shall be liable for the payment to any Agent-Related Person of any portion of such Indemnified Liabilities to the extent determined in a final,
nonappealable judgment by a court of competent jurisdiction to have resulted from such Agent-Related Personβs own gross negligence or willful misconduct; and provided,
further, that no action taken in accordance with the directions of the Required Lenders shall be deemed to constitute gross negligence or willful misconduct for purposes of this Section 9.11.Β Without limitation of the foregoing,
each Lender shall reimburse each Agent-Related Person upon demand for its ratable share of any costs or out-of-pocket expenses (including Attorney Costs) incurred by such Agent-Related Person in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, any other Loan Document or any document
contemplated by or referred to herein, to the extent that such Agent-Related Person is not reimbursed for such expenses by or on behalf of the Borrower.Β The undertaking in this Section 9.11 shall survive the payment of all other Obligations
and the resignation of the Administrative Agent or any Agent-Related Person.
Section 9.12Β Β Β Β Β Β Β Β Withholding Tax.Β To the extent required by any
applicable law, the Administrative Agent shall withhold from any payment to any Lender an amount equal to any applicable withholding Tax.Β If the IRS or any Governmental Authority asserts a claim that the
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Administrative Agent did not properly withhold Tax from any amount paid to or for the account of any Lender for any reason (including because the appropriate form was not delivered or was not properly executed, or
because such Lender failed to notify the Administrative Agent of a change in circumstances that rendered the exemption from, or reduction of, withholding Tax ineffective), such Lender shall indemnify and hold harmless the Administrative Agent (to the
extent that the Administrative Agent has not already been reimbursed by the Borrower and without limiting or expanding the obligation of the Borrower to do so) for all amounts paid, directly or indirectly, by the Administrative Agent as Tax or
otherwise, including any penalties, additions to Tax or interest thereon, together with all expenses incurred, including legal expenses and any out-of-pocket expenses, whether or not such Tax was correctly or legally imposed or asserted by the
relevant Governmental Authority.Β 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.Β Each Lender hereby authorizes the Administrative Agent to
set off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Loan Document against any amount due to the Administrative Agent under this Article 9.Β The agreements in this Article 9 shall
survive the resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender, the termination of the Revolving Loans and the repayment, satisfaction or discharge of all obligations under this
Agreement.Β Unless required by applicable laws, at no time shall the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a Lender any refund of Taxes withheld or deducted from funds paid for the account of such
Lender.
(a)Β Β Β Β Β Β Β Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from
the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent, and the Arrangers and their respective Affiliates, and not, for the avoidance of doubt, to or
for the benefit of the Borrower, that at least one of the following is and will be true:
(i)Β Β Β Β Β Β Β Β Β Β Β Β such Lender is not using βplan assetsβ (within the meaning of 29 CFR Β§ 2510.3-101, as modified by
Section 3(42) of ERISA) of one or more Benefit Plans in connection with the Revolving Loans, the Letters of Credit or the Revolving Commitments,
(ii)Β Β Β Β Β Β Β Β Β Β the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for
certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving
insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is
applicable with respect to such Lenderβs entrance into, participation in,
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administration of and performance of the Revolving Loans, the Letters of Credit, the Revolving Commitments and this Agreement,
(iii)Β Β Β Β Β Β Β Β Β (A) such Lender is an investment fund managed by a βQualified Professional Asset Managerβ (within the
meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Revolving Loans, the Letters of Credit, the Revolving
Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Revolving Loans, the Letters of Credit, the Revolving Commitments and this Agreement satisfies the requirements of sub-sections (b)
through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) ofΒ Part I of PTE 84-14 are satisfied with respect to such Lenderβs entrance into, participation in, administration of and performance
of the Revolving Loans, the Letters of Credit, the Revolving Commitments and this Agreement, or
(iv)Β Β Β Β Β Β Β Β Β such other representation, warranty and covenant as may be agreed in writing between the Administrative
Agent, in its sole discretion, and such Lender.
(b)Β Β Β Β Β Β Β Β In addition, unless sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or such Lender
has not provided another representation, warranty and covenant as provided in sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and
(y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent, and the Arrangers and their respective Affiliates, and not, for the
avoidance of doubt, to or for the benefit of the Borrower, that:
(i)Β Β Β Β Β Β Β Β Β Β Β Β none of the Administrative Agent, or the Arrangers or any of their respective Affiliates is a fiduciary
with respect to the assets of such Lender (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement, any Loan Document or any documents related to hereto or thereto),
(ii)Β Β Β Β Β Β Β Β Β Β the Person making the investment decision on behalf of such Lender with respect to the entrance into,
participation in, administration of and performance of the Revolving Loans, the Letters of Credit, the Revolving Commitments and this Agreement is independent (within the meaning of 29 CFR Β§ 2510.3-21) and is a bank, an insurance carrier, an
investment adviser, a broker-dealer or other person that holds, or has under management or control, total assets of at least $50 million, in each case as described in 29 CFR Β§ 2510.3-21(c)(1)(i)(A)β(E),
(iii)Β Β Β Β Β Β Β Β Β the Person making the investment decision on behalf of such Lender with respect to the entrance into,
participation in, administration of and performance of the Revolving Loans, the Letters of Credit, the Revolving Commitments and this Agreement is capable of evaluating investment risks independently, both in general and with regard
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to particular transactions and investment strategies, (including in respect of the Obligations),
(iv)Β Β Β Β Β Β Β Β Β the Person making the investment decision on behalf of such Lender with respect to the entrance into,
participation in, administration of and performance of the Revolving Loans, the Letters of Credit, the Revolving Commitments and this Agreement is a fiduciary under ERISA or the Code, or both, with respect to the Revolving Loans, the Letters of
Credit, the Revolving Commitments and this Agreement and is responsible for exercising independent judgment in evaluating the transactions hereunder, and
(v)Β Β Β Β Β Β Β Β Β no fee or other compensation is being paid directly to the Administrative Agent, the Arrangers or any
their respective Affiliates for investment advice (as opposed to other services) in connection with the Revolving Loans, the Letters of Credit, the Revolving Commitments or this Agreement.
(c)Β Β Β Β Β Β Β The Administrative Agent and each of the Arrangers hereby informs the Lenders that each such Person is not undertaking to
provide impartial investment advice, or to give advice in a fiduciary capacity, in connection with the transactions contemplated hereby, and that such Person has a financial interest in the transactions contemplated hereby in that such Person or an
Affiliate thereof (i) may receive interest or other payments with respect to the Revolving Loans, the Letters of Credit, the Revolving Commitments and this Agreement, (ii) may recognize a gain if it extended the Revolving Loans, the Letters of Credit
or the Revolving Commitments for an amount less than the amount being paid for an interest in the Revolving Loans, the Letters of Credit or the Revolving Commitments by such Lender or (iii) may receive fees or other payments in connection with the
transactions contemplated hereby, the Loan Documents or otherwise, including structuring fees, commitment fees, arrangement fees, facility fees, upfront fees, underwriting fees, ticking fees, agency fees, administrative agent or collateral agent
fees, utilization fees, minimum usage fees, letter of credit fees, fronting fees, deal-away or alternate transaction fees, amendment fees, processing fees, term out premiums, bankerβs acceptance fees, breakage or other early termination fees or fees
similar to the foregoing.
Miscellaneous
Section 10.01Β Β Β Β Β Β Β Amendments and Waivers.Β No amendment or waiver
of any provision of this Agreement or any other Loan Document, and no consent to any departure by the Borrower or any other Credit Party therefrom, shall be effective unless in writing signed by the Required Lenders and the Borrower or the applicable
Credit Party, as the case may be, and acknowledged by the Administrative Agent, and each such amendment, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided that the Administrative Agent may, with the consent of the Borrower only, amend, modify or supplement this Agreement or any other Loan Document to cure any ambiguity, omission, defect or inconsistency (as reasonably
determined by the Administrative Agent), so long as such amendment, modification or supplement does not adversely affect the rights of any Lender or the Lenders shall have received at least five (5) Business Daysβ prior written notice thereof and the
Administrative Agent shall not have received, within five (5) Business Days of the date of such notice to the Lenders, a written notice from the Required
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Lenders stating that the Required Lenders object to such amendment, modification or supplement; provided, further, that no such
amendment, waiver or consent shall:
(a)Β Β Β Β Β Β extend or increase the Revolving Commitment of any Lender (or reinstate any Revolving Commitment terminated pursuant to Section
8.02) without the written consent of such Lender; provided that no amendment, modification or waiver of any condition precedent, covenant, Default or Event of Default prior to the termination of the
Revolving Commitments pursuant to Section 8.02 shall constitute an increase in any Revolving Commitment of any Lender;
(b)Β Β Β Β Β Β Β postpone or delay the maturity of the Revolving Loans or any reimbursement obligation in respect of any Letter of Credit or
any date for the payment of any interest, premium or fees due to the Lenders (or any of them) hereunder or under any other Loan Document, or reduce the amount of, or rate, as applicable, waive or excuse any such payment, without the written consent
of each Lender directly and adversely affected thereby (other than as a result of waiving (i) an Event of Default in accordance with the terms hereof, (ii) default interest hereunder to the extent a waiver of the underlying default giving rise to
such default interest does not require a vote of all Lenders or (iii) a mandatory prepayment to be made hereunder); provided that, for the avoidance of doubt, the provisions of Section 3.05(b) shall
not be deemed to be a reduction of the amount of, or rate of, interest payable on any Revolving Loan;
(c)Β Β Β Β Β Β Β Β amend the definition of βRequired Lendersβ or βPro Rata Shareβ without the consent of each Lender; provided that with the consent of Required Lenders, additional extensions of credit pursuant hereto may be included in the determination of βRequired Lendersβ or βPro Rata Shareβ on substantially the same basis as the Revolving
Commitments and the Revolving Loans are included on the Restatement Effective Date without the written consent of each Lender;
(d)Β Β Β Β Β Β Β Β amend the definition of βInterest Periodβ to permit Interest Periods with a duration of longer than six months without the
written consent of each Lender;
(e)Β Β Β Β Β Β Β Β release all or substantially all of the Collateralized L/C Collateral from the Collateralized L/C Liens or any Guarantor from
the Guarantee except as expressly permitted under the Loan Documents (including Section 9.10(a)) and except in connection with a βcredit bidβ undertaken by the Administrative Agent at the direction of the Required Lenders pursuant to Section 363(k),
Section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code or other sale or disposition of assets in connection with an enforcement action with respect to the Collateralized L/C Collateral, as applicable, permitted pursuant to the applicable Loan
Documents (in which case only the consent of the Required Lenders will be needed for such release), without the written consent of each Lender;
(f)Β Β Β Β Β Β Β Β extend the stated expiration date of any Letter of Credit beyond the Commitment Termination Date without the written consent
of each Lender and the Administrative Agent, unless all such Letters of Credit are Cash Collateralized at the Minimum Cash Collateral Amount in accordance with Section 2.02(a)(vi);
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(g)Β Β Β Β Β Β Β amend this Section 10.01, or any other provision of this Agreement that by its express terms requires the consent of
all or all affected Lenders, without the written consent of each Lender or each affected Lender, as applicable;
(h)Β Β Β Β Β Β Β subject to Section 2.12, change Section 2.11 in a manner that would alter the pro rata sharing of payments
required thereby without the written consent of each Lender;
(i)Β Β Β Β Β Β Β Β consent to the assignment or transfer by any Credit Party of any of its rights and obligations under any Loan Document
without the written consent of each Lender;
(j)Β Β Β Β Β Β Β Β amend, modify or waive this Agreement or the Guarantee Agreement so as to alter the ratable treatment of Obligations arising
under the Loan Documents and Guaranteed Obligations arising under the Guaranteed Swap Contracts or the definition of βGuaranteed Swap Contractβ, βObligationsβ or βGuaranteed Obligationsβ in each case in a manner adverse to any contractual
counterparty to any such Guaranteed Swap Contract with Guaranteed Obligations then outstanding without the written consent of any such contractual counterparty;
(k)Β Β Β Β Β Β modify (i) the Collateralized L/C Aggregate Collateral Amount or any component thereof with the effect of increasing the
Collateralized L/C Aggregate Collateral Amount or (ii) the Minimum Collateralized L/C Aggregate Collateral Amount or any component thereof with the effect of decreasing the Minimum Collateralized L/C Aggregate Collateral Amount, in each case, without
the written consent of each Lender; or
(l)Β Β Β Β Β Β Β Β amend, modify, terminate or waive any provision of the Loan Documents as the same applies to the Administrative Agent, or
any other provision hereof as the same applies to the rights or obligations of the Administrative Agent, in each case without the consent of the Administrative Agent;
provided, further, that (i) no such agreement shall, unless in writing
and signed by the Administrative Agent, in addition to the Required Lenders or all the Lenders, as the case may be, affect the rights or duties of the Administrative Agent under this Agreement or any other Loan Document (except with respect to the
removal of the Administrative Agent) and (ii) any fee agreement referred to in Section 2.08 may be amended, or rights or privileges thereunder waived, in a writing executed by the parties thereto.Β Notwithstanding anything to the contrary
herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except for any amendment, waiver or consent pursuant to Section 10.01(a), (b) or (c).
(a)Β Β Β Β Β Β Unless otherwise expressly provided herein, all notices and other communications provided
for hereunder shall be in writing (including by facsimile or electronic transmission).Β All such written notices shall be mailed, emailed, faxed or delivered to the applicable address, facsimile number (provided
that any matter transmitted by the Borrower by facsimile (1) shall be immediately confirmed by a telephone call to the recipient at the number specified on Schedule 10.02, and (2) shall be followed promptly by delivery of a hard copy original
thereof) or (subject to clause (c) below) electronic mail address, and all notices and other
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communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:
(i)Β Β Β Β Β Β Β Β Β if to the Borrower, any other Credit Party or the Administrative Agent, to the address, facsimile number,
electronic mail address or telephone number specified for such Person on Schedule 10.02 or to such other address, facsimile number, electronic mail address or telephone number as shall be designated by such party in a notice to the other
parties; and
(ii)Β Β Β Β Β Β Β Β if to any other Lender, to the address, facsimile number, electronic mail address or telephone number
specified in its administrative questionnaire or to such other address, facsimile number, electronic mail address or telephone number as shall be designated by such party in a notice to the Borrower and the Administrative Agent.
All such notices and other communications shall be deemed to be given or made upon the earlier to occur of (i) actual receipt by the relevant party hereto and (ii) (A) if delivered by hand or by
courier, when signed for by or on behalf of the relevant party hereto; (B) if delivered by mail, four (4) Business Days after deposit in the mails, postage prepaid; (C) if delivered by facsimile or electronic mail, when sent and receipt has been
confirmed by telephone; and (D) if delivered by electronic mail (which form of delivery is subject to the provisions of clause (c) below), when delivered; provided that notices and other
communications to the Administrative Agent pursuant to Article 2 shall not be effective until actually received by such Person.Β In no event shall a voicemail message be effective as a notice, communication or confirmation hereunder.
(b)Β Β Β Β Β Β Β Β Electronic Communications:
(1)Β Β Β Β Β Β Β Β Β Β Β Β Notices and other communications to the Administrative Agent, and the Lenders hereunder may be delivered
or furnished by electronic communication (including eβmail and Internet or intranet websites, including the Platform) pursuant to procedures approved by the Administrative Agent, provided that the foregoing
shall not apply to notices to the Administrative Agent or any Lender pursuant to Article 2 if such Person has notified the Administrative Agent that it is incapable of receiving notices under such Article by electronic communication.Β The
Administrative Agent or the Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that
approval of such procedures may be limited to particular notices or communications.Β Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an eβmail address shall be deemed received upon the senderβs
receipt of an acknowledgment from the intended recipient (such as by the βreturn receipt requestedβ function, as available, return eβmail or other written acknowledgment); provided that if such notice or
other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next Business Day for the recipient and (ii) notices or communications
posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the
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intended recipient at its eβmail address as described in the foregoing subclause (i) of notification that such notice or communication is available and identifying the website address
therefor.
(2)Β Β Β Β Β Β Β Β Β Holdings and each of its Subsidiaries understands that the distribution of material through an electronic
medium is not necessarily secure and that there are confidentiality and other risks associated with such distribution and agrees and assumes the risks associated with such electronic distribution, except to the extent that such losses, costs,
expenses or liabilities are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of the Administrative Agent.
(3)Β Β Β Β Β Β Β Β Β Β The Platform and any Approved Electronic Communications are provided βas isβ and βas availableβ.Β None
of the Agent-Related Persons warrant the accuracy, adequacy or completeness of the Approved Electronic Communications or the Platform and each expressly disclaims liability for errors or omissions in the Platform and the Approved Electronic
Communications, except for such losses, costs, expenses or liabilities as are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Person.Β No
warranty of any kind, express, implied or statutory, including any warranty of merchantability, fitness for a particular purpose, non-infringement of third-party rights or freedom from viruses or other code defects is made by the Agent-Related
Persons in connection with the Platform or the Approved Electronic Communications.
(4)Β Β Β Β Β Β Β Β Β Β Holdings, each of its Subsidiaries and each Lender agrees that the Administrative Agent may, but shall
not be obligated to, store any Approved Electronic Communications on the Platform in accordance with the Administrative Agentβs customary document retention procedures and policies.
(c)Β Β Β Β Β Β Β Β The Agent-Related Persons and the Lenders shall be entitled to rely and act upon any notices purportedly given by or on
behalf of the Borrower even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein or (ii) the terms thereof, as understood by the recipient,
varied from any confirmation thereof.Β The Borrower shall indemnify each Agent-Related Person and each Lender from all losses, costs, out-of-pocket expenses and liabilities resulting from the reliance by such Person on each notice purportedly given
by or on behalf of the Borrower; provided that such indemnity shall not, as to any such Person, be available to the extent that such losses, costs, expenses or liabilities are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Person.Β All telephonic notices to and other communications with the Administrative Agent may be recorded by the
Administrative Agent, and each of the parties hereto hereby consents to such recording.
Section 10.03Β Β Β Β Β Β No Waiver; Cumulative Remedies.Β No failure to
exercise and no delay in exercising, on the part of the Administrative Agent or any Lender, any right, remedy, power or privilege hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or
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privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
Section 10.04Β Β Β Β Β Β Β Costs and Expenses.Β The Borrower agrees to pay
or reimburse (a)Β the Administrative Agent, each Arranger, each Bookrunner and each Syndication Agent, in each case together with their respective Affiliates, and the officers, directors, employees, agents and attorneys-in-fact of such Persons and
Affiliates, for all reasonable costs and out-of-pocket expenses incurred in connection with the development, preparation, negotiation and execution of this Agreement and the other Loan Documents, including all Attorney Costs, which Attorney Costs
shall be limited to the reasonable fees and reasonable disbursements of Milbank, Tweed, Xxxxxx & XxXxxx LLP and, if reasonably necessary (in the sole discretion of the Administrative Agent), a single local counsel in each appropriate jurisdiction
and a single insurance regulatory counsel, collectively, for each of the foregoing Persons, (b) each Agent-Related Person for all reasonable costs and out-of-pocket expenses incurred in connection with any amendment, waiver, consent or other
modification of the provisions hereof and thereof and the consummation and administration of the transactions contemplated hereby and thereby, including all Attorney Costs, which Attorney Costs shall be limited to the reasonable fees and reasonable
disbursements of a single primary counsel and, if reasonably necessary (in the sole discretion of the Administrative Agent), a single local counsel in each appropriate jurisdiction and a single insurance regulatory counsel, collectively, for each
Agent-Related Person, and (c) each Agent-Related Person and each Lender for all costs and expenses incurred in connection with the enforcement, attempted enforcement or preservation of any rights or remedies under this Agreement (including this Section
10.04) or the other Loan Documents (including all such costs and expenses incurred during any βworkoutβ or restructuring in respect of the Obligations and during any legal proceeding, including in any Insolvency Proceeding or appellate
proceeding), including all reasonable fees, expenses and disbursements of any law firm or other external legal counsel.Β The foregoing costs and expenses shall include all search, filing, recording, title insurance and appraisal charges and fees and
taxes related thereto and other out-of-pocket expenses incurred by each Agent-Related Person and the cost of independent public accountants and other outside experts (subject to the limitations above) retained by such Agent-Related Person or any
Lender, as applicable.Β All amounts due under this Section 10.04 shall be payable within ten (10) Business Days after written demand therefor.Β The agreements in this Section 10.04 shall survive the repayment of the Revolving Loans
and the other Obligations.
(a)Β Β Β Β Β Β Β Whether or not the transactions contemplated hereby are consummated, the Borrower shall indemnify and hold harmless the
Administrative Agent, each Arranger, each Bookrunner, each Syndication Agent, each Documentation Agent, each Lender and their respective Affiliates, and the directors, officers, employees, agents and partners (to the extent such Person is a
partnership) of such Persons and Affiliates involved with the Transactions (collectively, the βIndemnified Personsβ) from and against any and all liabilities, obligations, losses, damages, penalties, claims,
demands, actions, judgments, suits, charges and costs, expenses and disbursements (including reasonable Attorney Costs) of any kind or nature whatsoever (including those arising from or relating to any environmental matters) that may at any time be
imposed on, incurred by or asserted against any such Indemnified Person by any
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third party or by the Borrower or any other Credit Party (x) that directly or indirectly owns the equity interests of the Borrower or (y) whose equity interests are owned directly or indirectly by the Borrower, in any
way relating to or arising out of or in connection with (i) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions
contemplated thereby or the consummation of the transactions contemplated thereby, (ii) any Revolving Commitment, Revolving Loan or Letter of Credit or the use or proposed use of the proceeds therefrom, (iii) any Environmental Liability related to
Holdings or any of its Subsidiaries or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation
for or defense of any pending or threatened claim, investigation, litigation or proceeding) and regardless of whether any Indemnified Person is a party thereto (all the foregoing, collectively, the βIndemnified
Liabilitiesβ), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnified Person; provided that such indemnity shall not, as to any Indemnified
Person, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements (including Attorney Costs) (A) are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnified Person in connection with or as a result of the transactions hereunder or (B) arise out of or are in connection with
any claim, litigation, loss or proceeding not involving an act or omission of Holdings or any of its Subsidiaries (other than an Indemnified Person) and that is brought by an Indemnified Person against another Indemnified Person (other than against
the Administrative Agent, any Arranger, any Bookrunner, any Syndication Agent or any Documentation Agent in their capacities as such or any other Indemnified Person in performing the services that are the subject of the Loan Documents).Β No
Indemnified Person shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks or other similar information transmission systems in connection with this Agreement other than for any
direct damages (and specifically excluding indirect, consequential, special or punitive damages) determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of
such Indemnified Person.Β Neither any Credit Party nor any Indemnified Person will have any liability for any indirect, consequential, special or punitive damages in connection with or as a result of such Credit Partyβs or such Indemnified Personβs
activities related to the transactions hereunder; provided that, that nothing contained in this sentence shall limit the Credit Partiesβ indemnification obligations hereunder to the extent such indirect,
consequential, special or punitive damages are included in any third-party claim whereby any Indemnified Person is entitled to indemnification hereunder.Β All amounts due under this Section 10.05 shall be payable within thirty (30) days after
written demand therefor together with, if requested by the Borrower, backup documentation supporting such indemnification request.Β The agreements in this Section 10.05 shall survive the resignation of the Administrative Agent, the
replacement of any Lender and the repayment, satisfaction or discharge of all the other Obligations.
(b)Β Β Β Β Β Β No Indemnified Person shall be liable for any damages arising from the use by unintended recipients of any information or other
materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby
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other than for any direct damages (and specifically excluding indirect, consequential, special or punitive damages) determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted
from the gross negligence or willful misconduct of such Indemnified Person.
Section 10.06Β Β Β Β Β Β Marshaling; Payments Set Aside.Β Neither of the
Administrative Agent nor any Lender shall be under any obligation to marshal any assets in favor of any Credit Party or any other Person or against or in payment of any or all of the Obligations.Β To the extent that the Borrower makes a payment to
the Administrative Agent or the Lenders (or to the Administrative Agent on behalf of the Lenders), or the Administrative Agent or any Lender enforces any security interests or exercises any right of set-off, and such payment or the proceeds of such
enforcement or the proceeds of such set-off or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by the Administrative Agent or such
Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any Insolvency Proceeding or otherwise, then (a) to the extent of such recovery the obligation or part thereof originally intended to be satisfied
shall be revived and continued in full force and effect as if such payment had not been made or such set-off had not occurred and (b) each Lender severally agrees to pay to the Administrative Agent upon demand its pro rata share of any amount so
recovered from or repaid by the Administrative Agent.
(a)Β Β Β Β Β Β Β Β Successors and Assigns Generally.Β The provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns permitted hereby, except that no Credit Party may assign or otherwise transfer any of its rights or obligations hereunder (except as expressly permitted in Section 7.07) without
the prior written consent of the Administrative Agent and each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an Eligible Assignee in accordance with the provisions of Section
10.07(b) or (ii) by way of participation in accordance with the provisions of Section 10.07(d) (and any other attempted assignment or transfer by any party hereto shall be null and void).Β Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants (as defined below) to the extent provided in Section 10.07(e) and, to the extent
expressly contemplated hereby, the Related Parties of each of the Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b)Β Β Β Β Β Β Β Β Assignments by Lenders.Β Any Lender may at any time assign to one or more Eligible Assignees all or a portion of its
rights and obligations under this Agreement (including all or a portion of its Revolving Commitment and Revolving Loans at the time owing to it (provided, however, that
each assignment shall be of a uniform, and not varying, percentage of all rights and obligations under and in respect of any applicable Revolving Loan and any related Revolving Commitments)); provided that:
(i)Β Β Β Β Β Β Β Β except in the case of an assignment of the entire remaining amount of the assigning Lenderβs Revolving
Loans or Revolving Commitment at the time owing to it or
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in the case of an assignment to a Lender or an Affiliate of a Lender or an Approved Fund with respect to a Lender, the aggregate amount of the Revolving Loans of the assigning Lender subject to each
such assignment, determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent or, if βTrade Dateβ is specified in the Assignment and Assumption, as of the Trade Date, shall not be
less than $5,000,000, unless each of the Administrative Agent and, so long as no Event of Default has occurred and is continuing under Section 8.01(a), (f) or (g), the Borrower otherwise consents (each such consent not to be
unreasonably withheld or delayed); provided that the Borrower shall be deemed to have consented unless it shall object thereto by written notice to the Administrative Agent within fifteen (15) Business Days
after having received notice thereof;
(ii)Β Β Β Β Β Β Β Β Β Β each partial assignment shall be made as an assignment of a proportionate part of all the assigning
Lenderβs rights and obligations under this Agreement with respect to the Revolving Loans or the Revolving Commitments assigned under the Facility;
(iii)Β Β Β Β Β Β Β Β Β the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and
Assumption; such Assignment and Assumption to be (A) electronically executed and delivered to the Administrative Agent via an electronic settlement system then acceptable to the Administrative Agent (or, if previously agreed with the Administrative
Agent, manually) and (B) delivered together with a processing and recordation fee of $[**], unless waived or reduced by the Administrative Agent in its sole discretion; provided that, no processing and
recordation fee shall be payable in connection with an assignments by or to any Arranger or its Affiliates; and
(iv)Β Β Β Β Β Β Β Β if the Eligible Assignee shall not be a Lender, (A) the relevant assignor, at the time that it notifies
the Administrative Agent of such proposed assignment, shall deliver to the Administrative Agent a duly executed Form Wβ9 of the proposed Eligible Assignee and (B) such Eligible Assignee shall deliver to the Administrative Agent an administrative
questionnaire, in the form prescribed by the Administrative Agent.
Subject to acceptance and recording thereof by the Administrative Agent pursuant to Section 10.07(c), from and after the effective date specified in each Assignment and Assumption, the
Eligible Assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, (provided
that, with respect to circumstances in effect on the effective date of such Assignment and Assumption, an Eligible Assignee shall not be entitled to receive any greater payment under Section 3.01 than the applicable Lender would have been
entitled to receive had the assignment not taken place) and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an
Assignment and Assumption covering all of the assigning Lenderβs rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 3.01, 3.03, 3.04,
10.04 and 10.05 with respect to facts and circumstances occurring prior to the effective date of such assignment).Β Upon request, the Borrower (at their expense)
[**] = Certain information contained in this document, marked by β[**]β has been excluded because it is both (i) not material and (ii) is
the type that the registrant treats as private or confidential.
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shall execute and deliver a Revolving Loan Note to the assignee Lender.Β Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subsection shall be treated
for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section 10.07(d).
(c)Β Β Β Β Β Β Β Register.Β The Administrative Agent, acting solely for this purpose as an agent of the Borrower, shall maintain at the
Administrative Agentβs Office a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Revolving Commitments of, and principal and interest amounts of the Revolving
Loans owing to, each Lender pursuant to the terms hereof from time to time (the βRegisterβ).Β The entries in the Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent
and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary.Β The Register shall be available for
inspection by the Borrower and each Lender (with respect to its own interests in the Facility only) at any reasonable time and from time to time upon reasonable prior notice.Β No assignment shall be effective for purposes of this Agreement unless it
has been recorded in the Register as provided in this paragraph.
(d)Β Β Β Β Β Β Β Β Participations.Β Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative
Agent, sell participations to any Person (other than a Natural Person or the Borrower, Holdings or any Affiliate or Subsidiary of the Borrower or Holdings (other than Xxxxxxx Xxxxx & Co. LLC and any lending affiliates thereof, but excluding Holdings and its Subsidiaries) or any Disqualified Lender) (each, a βParticipantβ) in all or a portion of
such Lenderβs rights and/or obligations under this Agreement (including all or a portion of its Revolving Commitment and/or the owing to it); provided that (i) such Lenderβs obligations under this Agreement
shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lenderβs rights and obligations under this Agreement.Β Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, waiver or other modification described in the first proviso to Section 10.01 that directly affects such Participant.Β Except to the extent limited by Section 10.07(e), the Borrower
agree that each Participant shall be entitled to the benefits of Sections 3.01, 3.03 and 3.04 (subject to the limitations and requirements of such Sections (including Section 3.01(e) and Section 3.01(f)) and Section
3.07, as if such Participant were a Lender) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 10.07(b).Β To the extent permitted by law, each Participant also shall be entitled to
the benefits of Section 10.09 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.11 as though it were a Lender.
Each Lender that sells a participation pursuant to this Section 10.07(d) shall, acting solely for U.S. federal income tax purposes as a non-fiduciary agent of the Borrower, maintain a
register on which it records the name and address of each participant and the principal amounts
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of each participantβs participation interest with respect to the Revolving Loans or other obligations under the Loan Documents (each, a βParticipant Registerβ); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any participant or any information relating to a participantβs
interest in any Revolving Commitments, Revolving Loans or its other obligations under this Agreement) except to the extent that the relevant parties, acting reasonably and in good faith, determine that such disclosure is necessary to establish that
such Revolving Commitment, Revolving Loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b)(1) of the proposed United States Treasury Regulations.Β The entries in the
Participant Register shall be conclusive absent manifest error and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice
to the contrary.
(e)Β Β Β Β Β Β Limitations upon Participant Rights.Β A Participant shall not be entitled to receive any greater payment under Section
3.01 or 3.03 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant; provided that this Section 10.07(e) shall not
apply if the sale of the participation to such Participant is made with the Borrowerβs prior written consent.
(f)Β Β Β Β Β Β Β Certain Pledges.Β Any Lender may at any time pledge or assign a security interest in all or any portion of its rights
under this Agreement (including under its Revolving Loan Note, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or other central bank of similar function having
jurisdiction over such Lender; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party
hereto.
(g)Β Β Β Β Β Β Β Electronic Execution of Assignments.Β The words βexecution,β βsigned,β βsignature,β and words of like import in any
Assignment and Assumption shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a
paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act,
or any other similar state laws based on the Uniform Electronic Transactions Act.
Section 10.08Β Β Β Β Β Β Β Confidentiality.Β The Administrative Agent,
each Arranger, each Bookrunner, each Syndication Agent, each Documentation Agent and each Lender shall maintain the confidentiality of all information provided to it by or on behalf of Holdings or any Subsidiary, or by the Administrative Agent on
Holdingsβ or such Subsidiaryβs behalf, under this Agreement or any other Loan Document, it being understood and agreed by the Credit Parties that, in any event, the Administrative Agent may disclose such information to the Lenders and the
Administrative Agent, each Arranger, each Bookrunner, each Syndication Agent, each Documentation Agent and each Lender may make disclosures thereof to the extent such information (i) was or becomes generally available to the public other than as a
result of disclosure by such Person on breach of the provisions of this Section 10.08, or (ii) was or
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becomes available on a non-confidential basis from a source other than Holdings or its Subsidiaries; provided that such source is not bound by a confidentiality agreement with
Holdings or any of its Subsidiaries known to such Person; provided, further, that the Administrative Agent, any Arranger, any Bookrunner, any Syndication Agent, any
Documentation Agent or any Lender may disclose such information (a) at the request or pursuant to any requirement of any Governmental Authority or representative thereof to which such Person is subject (including the NAIC) or in connection with an
examination of such Person by any such authority; (b) pursuant to subpoena or other court process; (c) when required to do so in accordance with the provisions of any applicable Requirement of Law; (d) to the extent reasonably required in connection
with the exercise of any remedy hereunder or under any other Loan Document; (e) to such Personβs independent auditors and other professional advisors on a confidential basis; (f) to any Participant, Lender or Eligible Assignee, actual or potential; provided that such Person agrees to be bound by the terms of this Section 10.08 (or language substantially similar to this Section 10.08) which agreement may be pursuant to customary syndication
practice; (g) as to any Lender or its Affiliate, as expressly permitted under the terms of any other document or agreement regarding confidentiality to which Holdings or any Subsidiary is party with such Lender or such Affiliate; (h) to its
Affiliates and to their respective officers, directors, partners, members, employees, legal counsel, independent auditors and other advisors, experts or agents who need to know such information and who have been informed of the confidential nature
thereof (and to other Persons authorized by a Lender or the Administrative Agent to organize, present or disseminate such information in connection with disclosures otherwise made in accordance with this Section 10.08); (i) to any other party
to this Agreement; (j) to any pledgee referred to in Section 10.07(f) or any direct or indirect contractual counterparty or prospective counterparty (or such counterpartyβs or prospective counterpartyβs professional advisor) to any swap or
derivative transaction relating to the Revolving Loans who have been informed of the confidential nature of the information; (k) to Xxxxxβx and S&P and other rating agencies in connection with the ratings contemplated by the Loan Documents; (l)
on a confidential basis to the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers with respect to the Revolving Loans and (m) with the consent of the Borrower.Β In addition, the Administrative
Agent and each Lender may disclose the existence of this Agreement and the information about this Agreement to market data collectors, and on a need to know and confidential basis, similar services providers to the lending industry, and service
providers to the Administrative Agent and the Lenders in connection with the administration and management of this Agreement and the other Loan Documents.Β In the case of confidential information received from Holdings or any Subsidiary after the
date hereof, such information shall be clearly identified at the time of delivery as confidential.Β In the case of clauses (b) and (c), the disclosing party shall give notice of such disclosure to the Borrower (other than any
disclosure in connection with routine bank examinations), to the extent not otherwise prohibited by any Requirement of Law.
Section 10.09Β Β Β Β Β Β Set-off.Β In addition to any rights and remedies
of the Lenders provided by law, if an Event of Default shall have occurred and be continuing, each Lender and each of its Affiliates is authorized at any time and from time to time, without prior notice to the Borrower, any such notice being waived
by the Borrower, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held by, and other indebtedness at any time owing by, such Lender or Affiliate
to or for the credit or the account of the Borrower against any and all Obligations owing to such Lender, now
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or hereafter existing, irrespective of whether or not the Administrative Agent or such Lender shall have made demand under this Agreement or any Loan Document and although such Obligations may be contingent or
unmatured; provided that neither any Lender nor any of its Affiliates shall be entitled to exercise any such set off with respect to any trust, tax reserve, employee benefit or payroll account.Β Each Lender
agrees to promptly notify the Borrower and the Administrative Agent after any such set-off and application made by such Lender; provided that the failure to give such notice shall not affect the validity of
such set-off and application.
Section 10.10Β Β Β Β Β Β Β Notification of Addresses, Lending Offices, Etc.Β Each
Lender shall notify the Administrative Agent in writing of any changes in the address to which notices to the Lender should be directed, of addresses of any Lending Office, of payment instructions in respect of all payments to be made to it hereunder
and of such other administrative information as the Administrative Agent shall reasonably request.
Section 10.11.Β Β Β Β Β Β Β Effectiveness; Counterparts. (a) This Agreement (and the amendment and restatement of the Existing Credit Agreement effected hereby) shall become effective upon (i) the execution of a counterpart hereof by each of the parties hereto
(including each Continuing Existing Credit Agreement Lender), (ii) the receipt by the Borrower and the Administrative Agent of written notification of such execution and authorization of delivery thereof and (iii) the satisfaction or waiver of
the conditions precedent set forth in Section 4.01. This Agreement may be executed in any number of separate counterparts, each of which, when so executed, shall be deemed an original, and all of said counterparts taken together shall be deemed
to constitute but one and the same instrument. Delivery of an executed
counterpart of this Agreement by facsimile transmission or other electronic transmission (e.g., β.pdfβ or β.tifβ) shall be effective as delivery of a manually executed counterpart hereof.
(b)Β Β Β Β Β Β Β Electronic
Signatures. Delivery of an executed counterpart of a signature
page of this Agreement by telecopy, emailed pdf. or any other electronic means that reproduces an image of the actual executed signature page shall
be effective as delivery of a manually executed counterpart of this Agreement. The words βexecution,β βsigned,β βsignature,β
βdelivery,β and words of like import in or relating to this Agreement and any other document to be signed in connection with this Agreement and the transactions contemplated hereby shall be deemed to include Electronic Signatures, deliveries
or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the
case may be, to the extent and as provided for in any applicable law, the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on
the Uniform Electronic Transactions Act; provided that nothing herein shall require the Administrative Agent to accept electronic signatures
in any form or format without its prior written consent, provided that, the Administrative Agent hereby agrees to accept, and hereby
consents to the use of, electronic signatures to this Agreement from all parties hereto. Without limiting the generality of the foregoing, the Borrower hereby (i) agrees that, for all purposes, including without limitation, in connection with
any workout, restructuring, enforcement of remedies, bankruptcy proceedings or litigation among the Administrative Agent, the Lenders and the Borrower, electronic images of this Agreement or any other Loan Documents (in each case, including
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with respect to any signature pages thereto) shall have the same legal effect, validity and enforceability as any paper original, and (ii) waives any
argument, defense or right to contest the validity or enforceability of the Loan Documents based solely on the lack of paper original copies of any Loan Documents, including with respect to any signature pages thereto. Upon the request of the
Administrative Agent or any Lender, any Electronic Signature shall be followed by a manually executed counterpart thereof, if and when reasonably practicable.
Section 10.12Β Β Β Β Β Β Survival of Representations and Warranties.Β All
representations and warranties made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof.Β Such
representations and warranties have been or will be relied upon by the Administrative Agent and each Lender, regardless of any investigation made by the Administrative Agent or any Lender or on their behalf, and shall continue in full force and
effect as long as the Revolving Loans or any other Obligation hereunder shall remain unpaid or unsatisfied.
Section 10.13Β Β Β Β Β Β Severability.Β If any provision of any Loan
Document is invalid, illegal or unenforceable in any jurisdiction then, to the fullest extent permitted by law, (i) such provision shall, as to such jurisdiction, be ineffective to the extent (but only to the extent) of such invalidity, illegality or
unenforceability, (ii) the other provisions of the Loan Documents shall remain in full force and effect in such jurisdiction and shall be liberally construed in favor of the Lenders in order to carry out the intentions of the parties thereto as
nearly as may be possible and (iii) the invalidity, illegality or unenforceability of any such provision in any jurisdiction shall not affect the validity, legality or enforceability of such provision in any other jurisdiction.
Section 10.14Β Β Β Β Β Β Replacement of Defaulting Lenders and Non-Consenting
Lenders.Β 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 10.07), all of its interests, rights and obligations under this Agreement and the related Loan Documents to an assignee that shall
assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that:
(a)Β Β Β Β Β Β Β Β the Administrative Agent shall have received the assignment fee specified in Section 10.07(b) from the Borrower; and
(b)Β Β Β Β Β Β Β such Lender shall have received payment of an amount equal to the outstanding principal of its Revolving Loans, accrued
interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Sections 2.06(c), 3.01, 3.03 and 3.04) 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).
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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.
No action by or consent of a Defaulting Lender or a Non-Consenting Lender shall be necessary in connection with such assignment, which shall be immediately and automatically effective upon payment of
such purchase price.Β In connection with any such assignment the Borrower, the Administrative Agent, such Defaulting Lender or such Non-Consenting Lender and the replacement Lender shall otherwise comply with this Section 10.14; provided that if such Defaulting Lender or such Non-Consenting Lender does not comply with this Section 10.14 within one (1) Business Day after the Borrowerβs request, compliance with this Section
10.14 shall not be required to effect such assignment.
(a)Β Β Β Β Β Β Β Β Β This Agreement shall be construed in accordance with and governed by the law of the State of New York.
(b)Β Β Β Β Β Β Β Β Each of the parties hereto irrevocably and unconditionally submits, for itself and its property, to the exclusive
jurisdiction of the Supreme Court of the State of New York sitting in New York County and of the United States District Court for the Southern District of New York, and any relevant appellate court, in any action or proceeding arising out of or
relating to any Loan Document, or for recognition or enforcement of any judgment, and each party hereto irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York
State court or, to the extent permitted by law, in such Federal court.Β Each party hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any
other manner provided by law.Β Each Credit Party that is organized under the laws of a jurisdiction outside the United States hereby appoints the Borrower, and the Borrower hereby accepts such appointment, as agent for service of process of each such
Credit Party in any matter related to this Agreement or the other Loan Documents.Β Nothing in any Loan Document shall affect any right that any Lender or the Administrative Agent may otherwise have to bring any action or proceeding relating to any
Loan Document against any Credit Party or its properties in the courts of any jurisdiction.
(c)Β Β Β Β Β Β Β Β Each of the parties hereto irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to any Loan Document in any court referred to in clause (b) of this Section 10.15.Β Each party
hereto irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of any such suit, action or proceeding in any such court.
(d)Β Β Β Β Β Β To the extent permitted by applicable law, each party hereto irrevocably consents to service of process in the manner provided
for notices in Section 10.02.Β Nothing in any Loan Document will affect the right of any party hereto to serve process in any other manner permitted by law.
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Section 10.16Β Β Β Β Β Β Β Waiver of Jury Trial.Β EACH PARTY TO THIS
AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM
WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 10.16 WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.Β THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO OR OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
Section 10.17Β Β Β Β Β Β Β PATRIOT Act Notice.Β Each Lender and the
Administrative Agent (for itself and not on behalf of any Lender) hereby notifies each Credit Party that pursuant to the requirements of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism
Act of 2001 (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the βPATRIOT Actβ), it is required to obtain, verify and record information that identifies each Credit Party, which information
includes the name and address of each Credit Party and other information that will allow such Lender or the Administrative Agent, as applicable, to identify each Credit Party in accordance with the PATRIOT Act.
Section 10.18Β Β Β Β Β Β Β Entire Agreement.Β This Agreement, together
with the other Loan Documents and any separate agreements with respect to fees payable to the Administrative Agent, the Arrangers and the Bookrunners, embodies the entire agreement and understanding among the Credit Parties, the Lenders and the
Administrative Agent and supersedes all prior or contemporaneous agreements and understandings of such Persons, verbal or written, relating to the subject matter hereof and thereof.
Notwithstanding the foregoing, other than the provisions of the Fee Letters and those provisions of the Engagement Letter which by the terms of the Engagement Letter remain in full force and effect
after execution and delivery of the Loan Documents, on the Restatement Effective Date, all of the obligations of the Arrangers, Bookrunners and engagement parties under the Engagement Letter shall terminate and be superseded by the Loan Documents and
the Arrangers, Bookrunners and engagement parties under the Engagement Letter shall be released from all liability in connection therewith, including any claim for injury or damages, whether consequential, special, direct, indirect, punitive or
otherwise.
Section 10.19Β Β Β Β Β Β Β Independence of Covenants.Β All covenants
hereunder shall be given independent effect so that if a particular action or condition is not permitted by any of such covenants, the fact that it would be permitted by an exception to, or would otherwise be within
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the limitations of, another covenant shall not avoid the occurrence of a Default or an Event of Default if such action is taken or condition exists.
Section 10.20Β Β Β Β Β Β Β Obligations Several; Independent Nature of Lenders
Right.Β The obligations of Lenders hereunder are several and no Lender shall be responsible for the obligations or Revolving Commitment of any other Lender hereunder.Β Nothing contained herein or in any other Loan Document, and no action
taken by Lenders pursuant hereto or thereto, shall be deemed to constitute Lenders as a partnership, an association, a joint venture or any other kind of entity.Β The amounts payable at any time hereunder to each Lender shall be a separate and
independent debt, and each Lender shall be entitled to protect and enforce its rights arising out hereof and it shall not be necessary for any other Lender to be joined as an additional party in any proceeding for such purpose.
Section 10.21Β Β Β Β Β Β Β Β No Fiduciary Duty.Β The Administrative Agent,
each Lender and their Affiliates (collectively, solely for purposes of this paragraph, the βLendersβ), may have economic interests that conflict with those of the Credit Parties, their stockholders and/or their affiliates.Β Each Credit Party agrees
that nothing in the Loan Documents or otherwise will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or other implied duty between any Lender, on the one hand, and such Credit Party, its stockholders or its affiliates,
on the other.Β The Credit Parties acknowledge and agree that (a) the transactions contemplated by the Loan Documents (including the exercise of rights and remedies hereunder and thereunder) are armβs-length commercial transactions between the
Lenders, on the one hand, and the Credit Parties, on the other, and (b) in connection therewith and with the process leading thereto, (x) no Lender has assumed an advisory or fiduciary responsibility in favor of any Credit Party, its stockholders or
its affiliates with respect to the transactions contemplated hereby (or the exercise of rights or remedies with respect thereto) or the process leading thereto (irrespective of whether any Lender has advised, is currently advising or will advise any
Credit Party, its stockholders or its Affiliates on other matters) or any other obligation to any Credit Party except the obligations expressly set forth in the Loan Documents and (y) each Lender is acting solely as principal and not as the agent or
fiduciary of any Credit Party, its management, stockholders, creditors or any other Person.Β Each Credit Party acknowledges and agrees that it has consulted its own legal and financial advisors to the extent it deemed appropriate and that it is
responsible for making its own independent judgment with respect to such transactions and the process leading thereto.Β Each Credit Party agrees that it will not claim that any Lender has rendered advisory services of any nature or respect, or owes a
fiduciary or similar duty to such Credit Party, in connection with such transaction or the process leading thereto.
(a)Β Β Β Β Β Β Β This is an international loan transaction in which the specification of a particular currency (the βSpecified Currencyβ) and place of payment (the βSpecified Placeβ) is of the essence, and the obligation of each Credit Party under this Agreement to make payment to or for account of a
Guaranteed Party in the Specified Currency shall not be discharged or satisfied by any tender or recovery pursuant to any judgment expressed or converted into any other currency or in another place except to the extent that such tender or recovery
results in the effective
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receipt by such Guaranteed Party in the Specified Place of the full amount of the Specified Currency payable to such Guaranteed Party under this Agreement.
(b)Β Β Β Β Β Β If for the purpose of obtaining judgment in any court it is necessary to convert a sum due hereunder in the Specified Currency
into another currency (the βJudgment Currencyβ), the rate of exchange that shall be applied shall be that at which in accordance with normal banking procedures the Administrative Agent could purchase such
Specified Currency at the principal office of the Administrative Agent in the Specified Place with the Judgment Currency on the Business Day next preceding the day on which such judgment is rendered.Β The obligation of each Credit Party in respect of
any such sum due from it to the Administrative Agent or any Guaranteed Party (the βEntitled Personβ) shall, notwithstanding the rate of exchange actually applied in rendering such judgment, be discharged only
to the extent that on the Business Day following receipt by such Entitled Person of any sum adjudged to be due hereunder in the Judgment Currency such Entitled Person may in accordance with normal banking procedures purchase and transfer of the
Specified Currency to the Specified Place with the amount of the Judgment Currency so adjudged to be due; and each Credit Party hereby, as a separate obligation and notwithstanding any such judgment, agrees to indemnify such Entitled Person against,
and to pay such Entitled Person on demand, in the Specified Currency, the amount (if any) by which the sum originally due to such Entitled Person in the Specified Currency hereunder exceeds the amount of the Specified Currency so purchased and
transferred.
Section 10.23Β Β Β Β Β Β Β Existing Credit Agreement Amended and Restated;
Consents to Amendments to Existing Loan Documents; Restatement Effective Date Assignments.
(a)Β Β Β Β Β Β Β Β Upon satisfaction of the conditions precedent to the effectiveness of this Agreement on the Restatement Effective Date, (i)
this Agreement shall amend and restate the Existing Credit Agreement in its entirety, (ii) the rights and obligations of the parties under the Existing Credit Agreement shall be subsumed within and be governed by this Agreement; provided, however,
that (A) each of the βRevolving Loansβ (as such term is defined in the Existing Credit Agreement) outstanding under the Existing Credit Agreement on the Restatement Effective Date shall remain outstanding hereunder (with the existing Interest Periods
therefor) and shall constitute Revolving Loans hereunder; (B) each βLetter of Creditβ (as defined in the Existing Credit Agreement) issued under the Existing Credit Agreement and outstanding on the Restatement Effective Date shall constitute a Letter
of Credit hereunder, and (C) all Obligations (as defined in the Existing Credit Agreement) of the Credit Parties (as defined in this Agreement) shall constitute continuing Obligations hereunder, and neither this Agreement nor any other Loan Document
shall be deemed to evidence or result in a novation or repayment and reborrowing of such Obligations, and (iii) all references to the Existing Credit Agreement in any Loan Document or other document or instrument delivered in connection therewith
shall be deemed to refer to this Agreement.
(b)Β Β Β Β Β Β Β Each Credit Party, the Administrative Agent, each Lender (including each Continuing Existing Credit Agreement Lender) hereby
consents to (i) the amendment and restatement of the Existing Guarantee Agreement (as defined in the Guarantee Agreement) effected by the Guarantee Agreement and (ii) the amendment and restatement of the Existing
136
Security and Control Agreement (as defined in the Collateralized L/C Security and Control Agreement) effected by the Collateralized L/C Security and Control Agreement.
(c)Β Β Β Β Β Β Β Β Certain of the Revolving Lenders party hereto on the Restatement Effective Date are New Revolving Lenders.Β Certain
Continuing Existing Credit Agreement Lenders are Increasing Lenders, and certain Continuing Existing Credit Agreement Lenders are Reducing Lenders.Β On the Restatement Effective Date, (i) each of the Reducing Lenders shall assign to each of the
Increasing Lenders, and each of the Increasing Lenders shall purchase from each of the Reducing Lenders, at the principal amount thereof, such interests in the Revolving Loans outstanding on the Restatement Effective Date and (ii) each outstanding
Letter of Credit shall be amended in accordance with the procedures set forth in Section 2.02(d), in each case as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Exposure will be held
by the Revolving Lenders ratably in accordance with their Revolving Commitments.
Section 10.24Β Β Β Β Β Acknowledgment and Consent to Bail-In of Affected Financial Institutions.Β Notwithstanding anything
to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Affected Financial Institution arising under any Loan Document, to the
extent such liability is unsecured, may be subject to the Write-Down and Conversion Powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
Section 10.24. Acknowledgment and Consent to
Bail-In of EEAAffected Financial Institutions. Notwithstanding anything to the contrary in any Loan Document or
in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of an EEAany Affected Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the Write-Down
and Conversion Powers of an EEAthe applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
Β
(a) Β Β Β Β the application of any Write-Down and Conversion Powers by an EEAthe applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by any Lenderparty hereto that is an EEAAffected
Financial Institution; and
(b)Β Β Β Β Β Β Β Β the effects of any Bail-InBail-in Action on any such liability, including, if applicable:
(i)Β Β Β Β Β Β Β Β Β Β Β
(ii) a reduction in full
or in part or cancellation of any such liability;
(ii)Β Β Β Β Β Β
Β Β (iii) a conversion of all, or a portion of, such liability into shares or other
instruments of ownership in such EEAAffected Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise
conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or
(iii)Β Β Β Β Β Β Β Β
(iv) the variation of the terms of such liability in connection with the exercise of
the Write-Down and Conversion Powers of any EEAthe applicable Resolution Authority.
Section 10.25.Acknowledgement Regarding Any Supported QFCs. To the extent
that the Loan Documents provide support, through a guarantee or otherwise, for Guaranteed Swap Contracts or any other agreement or instrument that is a QFC (such support, βQFC Credit Supportβ and each such QFC a βSupported QFCβ), the parties
acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance
137
Corporation under the Federal Deposit Insurance Act and Title II of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (together with the
regulations promulgated thereunder, the βU.S. Special Resolution Regimesβ) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be
stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States):
(a) Β Β Β Β In the event a Covered Entity that is party to a Supported QFC
(each, a βCovered Partyβ) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and
such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime
if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a
Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered
Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of
the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported
QFC or any QFC Credit Support.
(b)Β Β Β Β Β Β Β Β As used in this Section 10.25, the following terms have the
following meanings:
βBHC Act Affiliateβ of a party means an βaffiliateβ (as such term is defined under, and interpreted in accordance
with, 12 U.S.C. 1841(k)) of such party.
βCovered Entityβ means any of the following:
(i) Β Β Β Β Β a βcovered entityβ as that term is defined in, and interpreted
in accordance with, 12 C.F.R. Β§ 252.82(b);
(ii) Β Β Β Β a βcovered bankβ as that term is defined in, and interpreted in
accordance with, 12 C.F.R. Β§ 47.3(b); or
(iii)Β Β Β Β Β Β Β a βcovered FSIβ as that term is defined in, and interpreted in
accordance with, 12 C.F.R. Β§ 382.2(b).
βDefault Rightβ has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§
252.81, 47.2 or 382.1, as applicable.
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βQFCβ has the meaning assigned to the term βqualified financial contractβ in, and shall be interpreted in accordance with, 12 U.S.C.
5390(c)(8)(D).
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their proper and duly authorized officers as of the day and year first above written.
Β
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GLOBAL ATLANTIC FINANCIAL LIMITED (F/K/A COMMONWEALTH RE MIDCO LIMITED), as Holdings and a Guarantor
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Β | Β |
Β
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By:Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
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Β
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Name: |
Β
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Title: |
Β
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GLOBAL ATLANTIC (FIN) COMPANY, as
Borrower
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Β |
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Β |
Β
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By:Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
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Β
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Name: |
Β
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Title: |
Β
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ROYAL BANK OF CANADA,
as Administrative Agent
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Β | Β |
Β
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By:Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
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Β
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Name: |
Β
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Title: |
Β
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ROYAL BANK OF CANADA,
as Lender
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Β | Β |
Β
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By:Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
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Β
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Name: |
Β
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Title: |
[Signature Page to Second Amended and Restated Credit Agreement]
Β
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U.S. BANK NATIONAL ASSOCIATION,
as Lender
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Β | Β |
Β
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By:Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
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Β
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Name: |
Β
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Title: |
[Signature Page to Second Amended and Restated Credit Agreement]
Β
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XXXXX FARGO BANK,
NATIONAL ASSOCIATION,
as Lender
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Β | Β |
Β
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By:Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
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Β
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Name: |
Β
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Title: |
[Signature Page to Second Amended and Restated Credit Agreement]
Β
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[LENDER],
as Lender
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Β | Β |
Β
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By:Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
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Β
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Name: |
Β
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Title: |
[Signature Page to Second Amended and Restated Credit Agreement]