CREDIT AGREEMENT dated as of June 8, 2020 among MOLINA HEALTHCARE, INC., as the Borrower, THE LENDERS FROM TIME TO TIME PARTY HERETO, TRUIST BANK, as Administrative Agent, Swingline Lender and Issuing Bank SUNTRUST ROBINSON HUMPHREY, INC. BARCLAYS...
Exhibit 10.1 |
DEAL CUSIP: 00000XXX0
REVOLVER CUSIP: 00000XXX0
dated as of
June 8, 2020
among
XXXXXX HEALTHCARE, INC.,
as the Borrower,
THE LENDERS FROM TIME TO TIME PARTY HERETO,
TRUIST BANK,
as Administrative Agent, Swingline Lender and Issuing Bank
SUNTRUST XXXXXXXX XXXXXXXX, INC.
BARCLAYS BANK PLC
BOFA SECURITIES, INC.
DEUTSCHE BANK SECURITIES INC.
MUFG UNION BANK, N.A..
and
XXXXX FARGO SECURITIES, LLC,
as Joint Lead Arrangers and Bookrunners
TABLE OF CONTENTS
Page |
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ARTICLE I DEFINITIONS; CONSTRUCTION
|
1 |
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Section 1.1.
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Definitions
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1
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Section 1.2.
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Classifications of Loans and Borrowings
|
37
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Section 1.3.
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Accounting Terms and Determination
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37
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Section 1.4.
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Terms Generally
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38
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Section 1.5.
|
Letter of Credit Amounts
|
38
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Section 1.6.
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Times of Day
|
38
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Section 1.7.
|
LIBOR
|
38
|
Section 1.8.
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Limited Condition Acquisitions
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38
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ARTICLE II AMOUNT AND TERMS OF THE COMMITMENTS
|
40 |
|
Section 2.1.
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General Description of Facilities
|
40
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Section 2.2.
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Revolving Loans
|
40
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Section 2.3.
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Procedure for Revolving Borrowings
|
40
|
Section 2.4.
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Swingline Commitment
|
40
|
Section 2.5.
|
Reserved
|
42
|
Section 2.6.
|
Funding of Borrowings
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42
|
Section 2.7.
|
Interest Elections
|
43
|
Section 2.8.
|
Optional Reduction and Termination of Commitments
|
44
|
Section 2.9.
|
Repayment of Loans
|
44
|
Section 2.10.
|
Evidence of Indebtedness
|
44
|
Section 2.11.
|
Optional Prepayments
|
45
|
Section 2.12.
|
Mandatory Prepayments
|
45
|
Section 2.13.
|
Interest on Loans
|
45
|
Section 2.14.
|
Fees
|
46
|
Section 2.15.
|
Computation of Interest and Fees
|
47
|
Section 2.16.
|
Inability to Determine Interest Rates
|
47
|
Section 2.17.
|
Illegality
|
49
|
Section 2.18.
|
Increased Costs
|
49
|
Section 2.19.
|
Funding Indemnity
|
50
|
Section 2.20.
|
Taxes
|
51
|
Section 2.21.
|
Payments Generally; Pro Rata Treatment; Sharing of Set-offs
|
55
|
Section 2.22.
|
Letters of Credit
|
57
|
Section 2.23.
|
Increase of Commitments; Additional Lenders
|
61
|
Section 2.24.
|
Mitigation of Obligations
|
63
|
Section 2.25.
|
Replacement of Lenders
|
63
|
Section 2.26.
|
Reallocation and Cash Collateralization of Defaulting Lender Commitment
|
64
|
Section 2.27.
|
Extension
|
65
|
ARTICLE III CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT
|
66 |
|
Section 3.1.
|
Conditions to Effectiveness
|
66
|
Section 3.1.
|
Conditions to Effectiveness
|
66
|
Section 3.2.
|
Each Credit Event
|
68
|
Section 3.3.
|
Delivery of Documents
|
68
|
Section 3.4.
|
Termination of Existing Credit Facility
|
68
|
i
ARTICLE IV REPRESENTATIONS AND WARRANTIES
|
69 |
|
Section 4.1.
|
Existence; Power
|
69
|
Section 4.2.
|
Organizational Power; Authorization
|
69
|
Section 4.3.
|
Governmental Approvals; No Conflicts
|
69
|
Section 4.4.
|
Financial Statements
|
70
|
Section 4.5.
|
Litigation and Environmental Matters
|
70
|
Section 4.6.
|
Compliance with Laws and Agreements
|
71
|
Section 4.7.
|
No Default
|
71
|
Section 4.8.
|
Investment Company Act, Etc
|
71
|
Section 4.9.
|
Taxes
|
71
|
Section 4.10.
|
Margin Regulations
|
71
|
Section 4.11.
|
ERISA
|
72
|
Section 4.12.
|
Ownership of Property
|
72
|
Section 4.13.
|
Disclosure
|
72
|
Section 4.14.
|
Labor Relations
|
73
|
Section 4.15.
|
Subsidiaries
|
73
|
Section 4.16.
|
Solvency
|
73
|
Section 4.17.
|
Licensing and Accreditation
|
73
|
Section 4.18.
|
Anti-Corruption Laws and Sanctions
|
74
|
Section 4.18.
|
Anti-Corruption Laws and Sanctions
|
74
|
Section 4.19.
|
Subordination of Subordinated Debt
|
74
|
Section 4.20.
|
Medicare and Medicaid Notices and Filings Related to Business
|
74
|
Section 4.21.
|
No Affected Financial Institutions
|
75
|
ARTICLE V AFFIRMATIVE COVENANTS
|
75 |
|
Section 5.1.
|
Financial Statements and Other Information
|
75
|
Section 5.2.
|
Notices of Material Events
|
77
|
Section 5.3.
|
Existence; Conduct of Business
|
78
|
Section 5.4.
|
Compliance with Laws, Etc
|
78
|
Section 5.5.
|
Payment of Obligations
|
78
|
Section 5.6.
|
Books and Records
|
79
|
Section 5.7.
|
Visitation, Inspection, Etc
|
79
|
Section 5.8.
|
Maintenance of Properties; Insurance
|
79
|
Section 5.9.
|
Use of Proceeds; Margin Regulations
|
79
|
Section 5.10.
|
Guarantees by Material Domestic Subsidiaries
|
79
|
Section 5.11.
|
Material Licenses
|
80
|
Section 5.12.
|
Unrestricted Subsidiaries
|
80
|
ARTICLE VI FINANCIAL COVENANTS
|
81 |
|
Section 6.1.
|
Consolidated Net Leverage Ratio
|
81
|
Section 6.2.
|
Consolidated Interest Coverage Ratio
|
81
|
ARTICLE VII NEGATIVE COVENANTS
|
81 |
|
Section 7.1.
|
Indebtedness and Preferred Equity
|
81
|
Section 7.2.
|
Negative Pledge
|
83
|
Section 7.3.
|
Fundamental Changes
|
84
|
Section 7.4.
|
Investments, Loans, Etc
|
84
|
Section 7.5.
|
Restricted Payments
|
85
|
Section 7.6.
|
Sale of Assets
|
87
|
Section 7.7.
|
Transactions with Affiliates
|
87
|
ii
Section 7.8.
|
Restrictive Agreements
|
87
|
Section 7.9.
|
Reserved
|
87
|
Section 7.10.
|
Hedging Transactions
|
87
|
Section 7.11.
|
Reserved
|
88
|
Section 7.12.
|
Amendment to Organization Documents
|
88
|
Section 7.13.
|
Amendments and Prepayment of Other Indebtedness
|
88
|
Section 7.14.
|
Accounting Changes
|
88
|
Section 7.15.
|
Government Regulation
|
88
|
Section 7.16.
|
Ownership of Subsidiaries
|
89
|
Section 7.16.
|
Ownership of Subsidiaries
|
89
|
Section 7.17.
|
Use of Proceeds
|
89
|
Section 7.17.
|
Use of Proceeds
|
89
|
ARTICLE VIII EVENTS OF DEFAULT
|
89 |
|
Section 8.1.
|
Events of Default
|
89
|
Section 8.2.
|
Application of Funds
|
92
|
ARTICLE IX THE ADMINISTRATIVE AGENT
|
93 |
|
Section 9.1.
|
Appointment of Administrative Agent
|
93
|
Section 9.2.
|
Nature of Duties of Administrative Agent
|
94
|
Section 9.3.
|
Lack of Reliance on the Administrative Agent
|
95
|
Section 9.4.
|
Certain Rights of the Administrative Agent
|
95
|
Section 9.5.
|
Reliance by Administrative Agent
|
95
|
Section 9.6.
|
The Administrative Agent in its Individual Capacity
|
95
|
Section 9.7.
|
Successor Administrative Agent
|
96
|
Section 9.8.
|
Withholding Tax
|
97
|
Section 9.9.
|
Administrative Agent May File Proofs of Claim
|
97
|
Section 9.10.
|
Authorization to Execute Other Loan Documents
|
98
|
Section 9.11.
|
Guaranty Matters
|
98
|
Section 9.12.
|
Documentation Agent; Syndication Agent
|
98
|
Section 9.13.
|
Right to Enforce Guarantee
|
98
|
Section 9.14.
|
Hedging Obligations and Bank Product Obligations
|
98
|
ARTICLE X THE GUARANTY
|
98 |
|
Section 10.1.
|
The Guaranty
|
98
|
Section 10.2.
|
Obligations Unconditional
|
99
|
Section 10.3.
|
Reinstatement
|
100
|
Section 10.4.
|
Certain Additional Waivers
|
100
|
Section 10.5.
|
Remedies
|
100
|
Section 10.6.
|
Rights of Contribution
|
100
|
Section 10.7.
|
Guarantee of Payment; Continuing Guarantee
|
100
|
Section 10.8.
|
Keepwell
|
100
|
ARTICLE XI MISCELLANEOUS
|
101 |
|
Section 11.1.
|
Notices
|
101
|
Section 11.2.
|
Waiver; Amendments
|
103
|
Section 11.3.
|
Expenses; Indemnification
|
105
|
Section 11.4.
|
Successors and Assigns
|
107
|
Section 11.5.
|
Governing Law; Jurisdiction; Consent to Service of Process
|
111
|
Section 11.6.
|
WAIVER OF JURY TRIAL
|
112
|
iii
Section 11.7.
|
Right of Setoff
|
112
|
Section 11.8.
|
Counterparts; Integration
|
112
|
Section 11.9.
|
Survival
|
112
|
Section 11.10.
|
Severability
|
113
|
Section 11.11.
|
Confidentiality
|
113
|
Section 11.12.
|
Interest Rate Limitation
|
114
|
Section 11.13.
|
Waiver of Effect of Corporate Seal
|
114
|
Section 11.14.
|
Patriot Act
|
114
|
Section 11.15.
|
No Advisory or Fiduciary Responsibility
|
114
|
Section 11.16.
|
Electronic Execution of Assignments and Certain Other Documents
|
115
|
Section 11.17.
|
Acknowledgement and Consent to Bail-In of Affected Financial Institutions
|
115
|
Section 11.18.
|
Certain ERISA Matters
|
115
|
Section 11.19.
|
Acknowledgement Regarding any Supported QFCs
|
116
|
iv
Schedules
|
||
Schedule I
|
-
|
Commitment Amounts
|
Schedule 2.22
|
-
|
Existing Letters of Credit
|
Schedule 4.15
|
-
|
Loan Parties and Subsidiaries
|
Schedule 7.1
|
-
|
Outstanding Indebtedness
|
Schedule 7.2
|
-
|
Existing Liens
|
Schedule 7.4
|
-
|
Existing Investments
|
Exhibits
|
||
Exhibit 2.3
|
-
|
Form of Notice of Revolving Borrowing
|
Exhibit 2.4
|
-
|
Form of Notice of Swingline Borrowing
|
Exhibit 2.7
|
-
|
Form of Notice of Conversion/Continuation
|
Exhibit 2.10
|
-
|
Form of Note
|
Exhibits 2.20 (1-4)
|
- |
Forms of U.S. Tax Compliance Certificates
|
Exhibit 5.1
|
-
|
Form of Compliance Certificate
|
Exhibit 5.10
|
-
|
Form of Guarantor Joinder Agreement
|
Exhibit 11.4
|
-
|
Form of Assignment and Acceptance
|
v
THIS CREDIT AGREEMENT (this “Agreement”)
is made and entered into as of June 8, 2020, by and among XXXXXX HEALTHCARE, INC., a Delaware corporation (the “Borrower”), the Lenders (defined herein), and
TRUIST BANK, in its capacity as administrative agent for the Lenders (the “Administrative Agent”), as issuing bank (the “Issuing Bank”) and as swingline lender (the “Swingline Lender”).
W I T N E S S E T H:
WHEREAS, the Borrower, the lenders party thereto and Truist Bank, as administrative agent, are parties to that
certain Credit Agreement dated as of June 12, 2015 (as amended from time to time, the “Existing Credit Agreement”);
WHEREAS, the Borrower has requested that the Existing Credit Agreement be amended and restated in its entirety; and
WHEREAS, subject to the terms and conditions of this Agreement, the Lenders, the Issuing Bank and the Swingline
Lender, to the extent of their respective Commitments as defined herein, are willing severally to establish the requested revolving credit facility, letter of credit subfacility and the swingline subfacility in favor of the Borrower;
NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained, the Borrower, the
Lenders, the Administrative Agent, the Issuing Bank and the Swingline Lender agree as follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
DEFINITIONS; CONSTRUCTION
Section 1.1. Definitions. In addition to the other terms defined herein, the following terms used herein shall have the meanings herein specified (to be equally applicable
to both the singular and plural forms of the terms defined):
“364 Day Bridge Senior Unsecured
Indebtedness” shall mean any unsecured bridge facilities incurred by the Borrower with a maturity date no greater than 364 days after the date of issuance thereof for purposes of (x) consummating any Permitted Acquisition or Investment
permitted hereunder or (y) repayment of any existing Indebtedness, so long as, (a) at the time any such unsecured bridge facility is incurred, the aggregate amount of all unsecured bridge facilities does not exceed 25% of Consolidated Adjusted EBITDA
for the for the period of the four fiscal quarters most recently ended for which the Borrower has delivered financial statements pursuant to Section 5.1(a) or
(b) and (b) at all times when any unsecured bridge facility is outstanding, the Borrower shall have Qualified Cash and availability under the Aggregate
Revolving Commitments of at least 120% of all outstanding 364 Day Bridge Senior Unsecured Indebtedness.
“2022 Senior Notes” shall
mean those certain 5.375% Senior Notes due 2022 issued pursuant to that certain Indenture dated as of November 10, 2015 by and between the Borrower and U.S. Bank National Association as Trustee.
“2025 Senior Notes”
shall mean those certain 4.875% Senior Notes due 2025 issued pursuant to that certain Indenture dated as of June 6, 2017 by and between the Borrower and U.S. Bank National Association as Trustee.
“2028 Senior Notes”
shall mean those certain 4.375% Senior Notes due 2028 issued pursuant to that certain Indenture dated as of June 2, 2020 by and between the Borrower and U.S. Bank National Association as Trustee.
“ACA” shall mean both
the Patient Protection and Affordable Care Act of 2010 and the Health Care and Education Affordability Reconciliation Act of 2010.
“Acquisition” shall mean
(a) any Investment by the Borrower or any of its Restricted Subsidiaries in any other Person pursuant to which such Person shall become a Subsidiary or shall be merged with the Borrower or any of its Subsidiaries or (b) any acquisition by the
Borrower or any of its Subsidiaries of the assets of any Person (other than a Restricted Subsidiary) that constitute all or a substantial portion of the assets of such Person or a division or business unit of such Person.
“Additional Lender”
shall have the meaning set forth in Section 2.23.
“Additional Letters of Credit”
shall have the meaning set forth in Section 7.1(g).
“Adjusted LIBOR” shall
mean, with respect to each Interest Period for a Eurodollar Loan, (i) the rate per annum equal to the London interbank offered rate for
deposits in U.S. Dollars appearing on Reuters screen page LIBOR 01 (or on any successor or substitute page of such service or any successor to such service, or such other commercially available source providing such quotations as may be designated
by the Administrative Agent from time to time) at approximately11:00 A.M. (London time) two (2) Business Days prior to the first day of such Interest Period, with a maturity comparable to such Interest Period, divided by (ii) a percentage equal to
100% minus the then stated maximum rate of all reserve requirements (including any marginal, emergency, supplemental, special or other reserves
and without benefit of credits for proration, exceptions or offsets that may be available from time to time) applicable to any member bank of the Federal Reserve System in respect of Eurocurrency liabilities as defined in Regulation D (or any
successor category of liabilities under Regulation D); provided, that if the rate referred to in clause (i) above is not available at any such
time for any reason, then the rate referred to in clause (i) shall instead be the interest rate per annum, as determined by the Administrative
Agent, to be the arithmetic average of the rates per annum at which deposits in U.S. Dollars in an amount equal to the amount of such
Eurodollar Loan are offered by major banks in the London interbank market to the Administrative Agent at approximately 11:00 A.M. (London time), two (2) Business Days prior to the first day of such Interest Period. Notwithstanding anything to the
contrary in the foregoing, Adjusted LIBOR shall in no event be less than 0.50% per annum.
“Administrative Agent”
shall mean Truist Bank in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent.
“Administrative Questionnaire”
shall mean, with respect to each Lender, an administrative questionnaire in the form provided by the Administrative Agent and submitted to the Administrative Agent duly completed by such Lender.
2
“Affiliate” shall
mean, as to any Person, any other Person that directly, or indirectly through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such Person. For the purposes of this definition, “Control” shall mean the power, directly or indirectly, either to
(i) vote 5% or more of the securities having ordinary voting power for the election of directors (or persons performing similar functions) of a Person
or (ii) direct or cause the direction of the
management and policies of a Person, whether through the ability to exercise voting power, by control or otherwise. The terms “Controlling”, “Controlled by”, and “under common Control with” have the meanings correlative thereto.
“Aggregate Revolving Commitments”
shall mean the Revolving Commitments of all the Lenders at any time outstanding. On the Closing Date, the aggregate amount of the Aggregate Revolving Commitments is $1,000,000,000.
“Agreement” shall mean
this Credit Agreement.
“Anti-Corruption Laws”
shall mean all laws, rules, and regulations of any jurisdiction applicable to the Borrower or its Subsidiaries from time to time concerning or relating to bribery or corruption.
“Anti-Kickback Statute”
shall mean the Anti-kickback Statute as set forth in Section 1320a-7b of Title 42 of the United States Code, as amended, and any statute succeeding thereto.
“Applicable Lending Office”
shall mean, for each Lender and for each Type of Loan, the “Lending Office” of such Lender (or an Affiliate of such Lender) designated for such Type of Loan in the Administrative Questionnaire submitted by such Lender or such other office of such
Lender (or an Affiliate of such Lender) as such Lender may from time to time specify to the Administrative Agent and the Borrower as the office by which its Loans of such Type are to be made and maintained.
“Applicable Margin”
shall mean, as of any date, with respect to interest on all Loans outstanding on any date or the letter of credit fee, as the case may be, a percentage per annum determined by reference to the applicable Consolidated Net Leverage Ratio in effect
on such date as set forth in the table below; provided, that a change in the Applicable Margin resulting from a change in the Consolidated Net Leverage
Ratio shall be effective on the second Business Day after which the Borrower delivers each of the financial statements required by Section 5.1(a) and (b) and the Compliance Certificate required by Section 5.1(c); provided further, that if at any time the Borrower shall have failed to deliver such financial statements and such Compliance Certificate when so required, the
Applicable Margin shall be at Level 1 as set forth in the table below until the second Business Day after which such financial statements and Compliance Certificate are delivered, at which time the Applicable Margin shall be determined as
provided above. Notwithstanding the foregoing, the Applicable Margin from the Closing Date until the second Business Day after which the financial statements and Compliance Certificate for the Fiscal Quarter ending September 30, 2020 are
required to be delivered shall be at Level 5 as set forth in the table below. In the event that any financial statement or Compliance Certificate delivered hereunder is shown to be inaccurate (regardless of whether this Agreement or the
Commitments are in effect when such inaccuracy is discovered), and such inaccuracy, if corrected, would have led to the application of a higher Applicable Margin based upon the pricing grid set forth in the table below (the “Accurate Applicable Margin”) for any period that such financial statement or Compliance Certificate covered, then (i) the Borrower shall immediately deliver to
the Administrative Agent a correct financial statement or Compliance Certificate, as the case may be, for such period, (ii) the Applicable Margin shall be adjusted such that after giving effect to the corrected financial statements or Compliance
Certificate, as the case may be, the Applicable Margin shall be reset to the Accurate Applicable Margin based upon the pricing grid set forth in the table below for such period and (iii) the Borrower shall immediately pay to the Administrative
Agent, for the account of the Lenders, the accrued additional interest owing as a result of such Accurate Applicable Margin for such period. The provisions of this definition shall not limit the rights of the Administrative Agent and the
Lenders with respect to Section 2.13(c) or Article VIII.
3
Level
|
Consolidated Net Leverage Ratio
|
Eurodollar
Loans and
Letter of Credit
Fee
|
Base Rate
Loans |
Commitment
Fee |
1
|
>3.50:1.00
|
2.75%
|
1.75%
|
0.40%
|
2
|
<3.50:1.00 but >3.00:1.00
|
2.50%
|
1.50%
|
0.40%
|
3
|
<3.00:1.00 but >2.50:1.00
|
2.25%
|
1.25%
|
0.35%
|
4
|
<2.50:1.00 but >2.00:1.00
|
2.00%
|
1.00%
|
0.30%
|
5
|
<2.00:1.00
|
1.75%
|
0.75%
|
0.30%
|
“Approved Fund” shall mean
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 and that is administered or
managed by (i) a Lender, (ii) an Affiliate of a Lender or (iii) an entity or an Affiliate of an entity that administers or manages a Lender.
“Arrangers” shall mean
SunTrust Xxxxxxxx Xxxxxxxx, Inc., BofA Securities, Inc., Xxxxx Fargo Securities LLC, Barclays Bank PLC, Deutsche Bank Securities Inc. and MUFG Union Bank, N.A. each in their capacities as joint lead arrangers and joint bookrunners.
“Asset Sale” shall mean
the sale, transfer, license, lease or other disposition of any property by the Borrower or any Restricted Subsidiary, including any sale and leaseback transaction and any sale, assignment, transfer or other disposal, with or without recourse, of any
notes or accounts receivable or any rights and claims associated therewith, but excluding (a) the sale of inventory in the ordinary course of business; (b) the sale or disposition for Fair Market Value of obsolete or worn out property or other
property not necessary for operations of the Borrower or any Restricted Subsidiary disposed of in the ordinary course of business; (c) the disposition of property (including the cancellation of Indebtedness permitted by Section 7.4(d)) to the Borrower or any Restricted Subsidiary; provided, that if the transferor
of such property is a Loan Party then the transferee thereof must be a Loan Party; (d) the disposition of accounts receivable in connection with the collection or compromise thereof; (e) licenses, sublicenses, leases or subleases granted to others in
the ordinary course of business or not interfering in any material respect with the business of the Borrower or any Restricted Subsidiary; (f) the sale or disposition of Permitted Investments for Fair Market Value in the ordinary course of business
and (g) the disposition of shares of Capital Stock of any Subsidiary in order to qualify members of the governing body of such Subsidiary if required by applicable Law.
“Assignment and Acceptance”
shall mean an assignment and acceptance entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 11.4(b))
and accepted by the Administrative Agent, in the form of Exhibit 11.4 attached hereto or any other form approved by the Administrative Agent.
“Audited Financial Statements”
shall mean the audited consolidated balance sheet of the Borrower and its Subsidiaries for the fiscal year ended December 31, 2019, and the related consolidated statements of income or operations, stockholders’ equity and cash flows of the Borrower
and its Subsidiaries for such fiscal year, including the notes thereto.
4
“Availability Period” shall mean the period from the Closing Date to but excluding the Revolving Commitment Termination Date.
“Bail-In Action” shall
mean the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation”
shall mean: (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 for such EEA Member Country from time to time which is
described in the applicable EU Bail-In Legislation Schedule; and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act of 2009 (as amended from time to time), and any other Law applicable in the United Kingdom relating to
the resolution of unsound or failing banks, investment firms or other financial institutions, or any affiliates of any of the foregoing (other than through liquidation, administration, or other insolvency proceedings).
“Bank Product Amount”
shall have the meaning set forth in the definition of “Bank Product Provider”.
“Bank Product Obligations”
shall mean, collectively, all obligations and other liabilities of any Loan Party to any Bank Product Provider arising with respect to any Bank Products.
“Bank Product Provider”
shall mean any Person that (a) (i) at the time it provides any Bank Products to any Loan Party, is a Lender or an Affiliate of a Lender or (ii) has provided any Bank Products to any Loan Party that exist on the Closing Date, and such Person is a
Lender or an Affiliate of a Lender on the Closing Date and (b) except when the Bank Product Provider is Truist Bank and its Affiliates, has provided prior written notice to the Administrative Agent which has been acknowledged by the Borrower of (x)
the existence of such Bank Product, (y) the maximum dollar amount of obligations arising thereunder (the “Bank Product Amount”) and (z) the methodology to be
used by such parties in determining the obligations under such Bank Product from time to time. In no event shall any Bank Product Provider acting in such capacity be deemed a Lender for purposes hereof to the extent of and as to Bank Products
except that each reference to the term “Lender” in Article IX and Section
11.4 shall be deemed to include such Bank Product Provider and in no event shall the approval of any such person in its capacity as Bank Product Provider be required in connection with the release or termination of any security
interest or Lien of the Administrative Agent. The Bank Product Amount may be changed from time to time upon written notice to the Administrative Agent by the applicable Bank Product Provider. The Bank Product Amount may not be increased, and no
new agreements for Bank Products may be established at any time that a Default or Event of Default exists.
“Bank Products” shall
mean any of the following services provided to any Loan Party by any Bank Product Provider: (a) any treasury or other cash management services, including deposit accounts, automated clearing house (ACH) origination and other funds transfer,
depository (including cash vault and check deposit), zero balance accounts and sweeps, return items processing, controlled disbursement accounts, positive pay, lockboxes and lockbox accounts, account reconciliation and information reporting,
payables outsourcing, payroll processing, trade finance services, investment accounts and securities accounts, and (b) card services, including credit card (including purchasing card and commercial card), prepaid cards, including payroll, stored
value and gift cards, merchant services processing, and debit card services.
5
“Base Rate” shall mean
the highest of (a) the rate which the Administrative Agent announces from time to time as its prime lending rate, as in effect from time to time, (b) the Federal Funds Rate, as in effect from time to time, plus one-half of one percent (½%) per annum and (c) a rate per annum equal to Adjusted LIBOR for a term of one month plus one percent (1.00%) per annum (any changes in such rates to be effective as of the date of any change in such rate). The Administrative Agent’s prime lending rate is a reference rate
and does not necessarily represent the lowest or best rate actually charged to any customer. The Administrative Agent may make commercial loans or other loans at rates of interest at, above, or below the Administrative Agent’s prime lending
rate.
“Benchmark Replacement” shall mean the sum of: (a) the alternate benchmark rate (which may include Term SOFR) that has been selected by the
Administrative Agent and the Borrower giving due consideration to (i) any selection or recommendation of a replacement rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing
market convention for determining a rate of interest as a replacement to the Screen Rate for U.S. dollar-denominated syndicated credit facilities and (b) the Benchmark Replacement Adjustment; provided that, if the Benchmark Replacement as so
determined would be less than zero, the Benchmark Replacement will be deemed to be zero for the purposes of this Agreement.
“Benchmark Replacement Adjustment”
shall mean, with respect to any replacement of the Screen Rate with an Unadjusted Benchmark Replacement for each applicable Interest Period, the spread adjustment, or method for calculating or determining such spread adjustment (which may be a
positive or negative value or zero), that has been selected by the Administrative Agent and the Borrower giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread
adjustment, for the replacement of the Screen Rate with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for
calculating or determining such spread adjustment, for the replacement of the Screen Rate with the applicable Unadjusted Benchmark Replacement for U.S. dollar-denominated syndicated credit facilities at such time.
“Benchmark Replacement Conforming
Changes” shall mean, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base Rate,” the definition of “Interest Period,” timing and frequency of
determining rates and making payments of interest and other administrative matters) that the Administrative Agent decides, after consultation with the Borrower, may be appropriate to reflect the adoption and implementation of such Benchmark
Replacement and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not
administratively feasible or if the Administrative Agent determines that no market practice for the administration of the Benchmark Replacement exists, in such other manner of administration as the Administrative Agent decides is reasonably
necessary in connection with the administration of this Agreement).
6
“Benchmark Replacement Date”
shall mean the earlier to occur of the following events with respect to the Screen Rate:
(a) in the case of clause (a) or (b) of the definition of “Benchmark Transition Event,” the later of (x) the date of the public statement or publication of information referenced therein and (y) the date on which the administrator
of the Screen Rate permanently or indefinitely ceases to provide the Screen Rate; or
(b) in the case of clause (c) of the definition of “Benchmark Transition Event,” the date of the public statement or publication of information referenced therein.
“Benchmark Transition Event”
shall mean the occurrence of one or more of the following events with respect to the Screen Rate:
(a) a public statement or publication of information by or on behalf of the administrator of the Screen Rate announcing that such administrator has ceased or will cease to provide the Screen Rate, permanently or indefinitely,
provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the Screen Rate;
(b) a public statement or publication of information by the regulatory supervisor for the administrator of the Screen Rate, the U.S. Federal Reserve System, an insolvency official with jurisdiction over the administrator for the
Screen Rate, a resolution authority with jurisdiction over the administrator for the Screen Rate, or a court or an entity with similar insolvency or resolution authority over the administrator for the Screen Rate, which states that the
administrator of the Screen Rate has ceased or will cease to provide the Screen Rate permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide
the Screen Rate; or
(c) a public statement or publication of information by the regulatory supervisor for the administrator of the Screen Rate announcing that the Screen Rate is no longer representative.
“Benchmark Transition Start
Date” shall mean (a) in the case of a Benchmark Transition Event, the earlier of (i) the applicable Benchmark Replacement Date and (ii) if such Benchmark Transition Event is a public statement or publication of information of a
prospective event, the 90th day prior to the expected date of such event as of such public statement or publication of information (or, if the expected date of such prospective event is fewer than 90 days after such statement or publication,
the date of such statement or publication) and (b) in the case of an Early Opt-in Election, the date specified by the Administrative Agent or the Required Lenders, as applicable, by notice to the Borrower, the Administrative Agent (in the case
of such notice by the Required Lenders) and the Lenders.
“Benchmark Unavailability
Period” shall mean, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to the Screen Rate and solely to the extent that the Screen Rate has not been replaced with a Benchmark
Replacement, the period (x) beginning at the time that such Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced the Screen Rate for all purposes hereunder in accordance with Section 2.16(b)-(e) and (y) ending at the time that a Benchmark Replacement has replaced the Screen Rate for all purposes hereunder pursuant to Section 2.16(b)-(e).
“Beneficial Ownership
Certification” shall mean a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.
“Beneficial Ownership
Regulation” shall mean 31 C.F.R. § 1010.230.
7
“Benefit Plan”
shall mean any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” 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 “employee benefit plan” or “plan”.
“BHC Act Affiliate”
of a party shall mean an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. §–1841(k)) of such party.
“Borrower” shall
have the meaning set forth in the introductory paragraph hereof.
“Borrowing” shall mean a borrowing consisting of (a) Loans of the same Class and Type, made, converted or continued on the same date and in the case of
Eurodollar Loans, as to which a single Interest Period is in effect, or (b) a Swingline Loan.
“Bridge Senior Unsecured
Indebtedness” shall mean senior unsecured Indebtedness that complies with Section 7.1(k) other than clauses (iv) and (v) thereof; provided that (a) at the initial maturity of such Indebtedness, such Indebtedness shall automatically convert to a term loan or exchange notes that, in
each case, complies with clause (iv) of Section 7.1(k) and (b) the only prepayments such Indebtedness may have are customary mandatory redemption,
mandatory repurchase or other mandatory prepayments of principal (x) in connection with a change of control and (y) with the proceeds of any issuance of Capital Stock or any issuance of Indebtedness or any sale or other disposition of
property (including casualty events), in each case to the extent such proceeds are not required to be applied to prepay the Loans.
“Business Day”
shall mean any day other than (a) a Saturday, Sunday or other day on which commercial banks in Charlotte, North Carolina or New York, New York are authorized or required by Law to close and (b) if such day relates to a Borrowing of, a payment
or prepayment of principal or interest on, a conversion of or into, or an Interest Period for, a Eurodollar Loan or a notice with respect to any of the foregoing, any day on which banks are not open for dealings in dollar deposits in the
London interbank market.
“Capital Expenditures”
shall mean for any period, without duplication, (a) the additions to property, plant and equipment and other capital expenditures of the Borrower and its Restricted Subsidiaries that are (or would be) set forth on a consolidated statement of
cash flows of the Borrower for such period and (b) Finance Lease Liabilities incurred by the Borrower and its Restricted Subsidiaries during such period.
“Capital Stock”
shall mean all shares, options, warrants, general or limited partnership interests, membership interests or other equivalents (regardless of how designated) of or in a corporation, partnership, limited liability company or equivalent entity
whether voting or nonvoting, including common stock, preferred stock or any other “equity security” (as such term is defined in Rule 3a11‑1 of the General Rules and Regulations promulgated by the SEC under the Securities Exchange Act of
1934).
“Cash Collateralize”
shall mean, in respect of any obligations, to provide and pledge (as a first priority perfected security interest) cash collateral for such obligations in Dollars, to the Administrative Agent pursuant to documentation in form and substance,
reasonably satisfactory to the Administrative Agent (and “Cash Collateralization” and “Cash Collateral” have a corresponding meaning).
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“Change in Control”
shall mean the occurrence of one or more of the following events: (a) any sale, lease, exchange or other transfer (in a single transaction or a series of related transactions) of all or substantially all of the assets of the Borrower to any
Person or “group” (within the meaning of the Securities Exchange Act of 1934 and the rules of the SEC thereunder in effect on the date hereof), (b) the acquisition of ownership, directly or indirectly, beneficially or of record, by any
Person or “group” (within the meaning of the Securities Exchange Act of 1934 and the rules of the SEC thereunder as in effect on the date hereof), other than the Xxxxxx Family, of 30% or more of the outstanding shares of the voting stock of
the Borrower, (c) the acquisition of ownership, directly or indirectly, beneficially or of record, by the Xxxxxx Family of 50% or more of the outstanding shares of the voting stock of the Borrower, (d) during any period of 24 consecutive
months, a majority of the members of the board of directors or other equivalent governing body of the Borrower cease to be composed of individuals who are Continuing Directors or (e) the occurrence of a fundamental change (or any comparable
term) under, and as defined in, any agreement, document or instrument governing or otherwise relating to the Existing Notes or any other Material Indebtedness (other than Permitted Subordinated Debt).
“Change in Law”
shall mean (a) the adoption of any applicable Law after the date of this Agreement, (b) any change in any applicable Law after the date of this Agreement, or (c) compliance by any Lender (or its Applicable Lending Office) or the Issuing
Bank (or for purposes of Section 2.18(b), by the Parent Company of such Lender or the Issuing Bank, if applicable) with any request, guideline or
directive (whether or not having the force of law) of any Governmental Authority made or issued after the date of this Agreement. Notwithstanding anything herein to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer
Protection Act, and all requests, rules, guidelines and directives promulgated thereunder, and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking
Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, in each case, are deemed to have been introduced or adopted after the date hereof, regardless of
the date enacted or adopted.
“Class”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans or
Swingline Loans and, when used in reference to any Commitment, refers to whether such Commitment is a Revolving Commitment or a Swingline Commitment.
“Closing Date”
shall mean the date hereof.
“CMS” shall mean
the Centers for Medicare & Medicaid Services or any successor or predecessor thereof.
“Code” shall
mean the Internal Revenue Code of 1986, as amended and in effect from time to time.
“Commitment”
shall mean a Revolving Commitment, a Swingline Commitment or an Incremental Term Loan Commitment or any combination thereof (as the context shall permit or require).
“Commitment Fee”
shall have the meaning set forth in Section 2.14(b).
“Commodity Exchange Act”
shall mean the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.
“Compliance Certificate”
shall mean a certificate from the principal executive officer or the principal financial officer of the Borrower in the form of, and containing the certifications set forth in, the certificate attached hereto as Exhibit 5.1.
9
“Connection Income Taxes”
shall mean Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
“Consolidated Adjusted
EBITDA” shall mean, for the Borrower and its Restricted Subsidiaries for any period, determined on a consolidated basis, an amount equal to the sum of (a) Consolidated Net Income for such period plus (b) to the extent deducted in determining Consolidated Net Income for such period (except for the synergies component of clause (v) and the “run rate”
component of clause (vii)), without duplication, (i) Consolidated Interest Expense for such period, (ii) income tax expense for such period (other than any income tax, including any portion of the Health Insurance Providers Fee imposed by
Section 9010 of the ACA, which is subject to indemnification or reimbursement from any Person other than the Borrower or any of its Restricted Subsidiaries), (iii) depreciation and amortization for such period, (iv) non-cash charges
associated with stock-based compensation expenses pursuant to the financial reporting guidance of the Financial Accounting Standards Board concerning stock-based compensation as in effect from time to time, (v) any costs and synergies
directly attributable to any Permitted Acquisition that occurred during such period (calculated on a basis that is consistent with Regulation S-X under the Securities Act of 1933) which are reflective of actual or reasonably anticipated
and factually supportable synergies and cost savings expected to be realized or achieved in the twelve months following such Permitted Acquisition; provided,
however, that for purposes of calculating Consolidated Adjusted EBITDA for any period, any such adjustments made pursuant to this clause (v) shall
not increase Consolidated Adjusted EBITDA by more than 20% of Consolidated Adjusted EBITDA for such period as calculated before giving effect to any such adjustments in this clause (v) and any adjustments in clause (vii), (vi) other
extraordinary or non-recurring non-cash expenses (including any expenses as a result of any premium deficiency reserve, goodwill impairment or impairment of intangible assets, including, without limitation, impairment of capitalized
software) and (vii) cash costs and expenses and “run rate” cost savings related to corporate restructuring or improvement plans incurred in such period; provided,
that, such “run rate” cost savings are certified by the Borrower’s chief financial officer; and provided, further, that, (A) such cost savings
have resulted from actions taken by the Borrower and its Restricted Subsidiaries and are factually supportable and reasonably likely to result in cost savings to be realized or achieved in the twelve months following such action and (B)
for purposes of calculating Consolidated Adjusted EBITDA for any period, any such adjustments made pursuant to this clause (vii) shall not increase Consolidated Adjusted EBITDA by more than 10% of Consolidated Adjusted EBITDA for such
period as calculated before giving effect to any such adjustments in this clause (vii), minus (c) to the extent added in Consolidated
Net Income, any extraordinary or non-recurring non-cash income (including as a result of any premium deficiency reserve related to any health plan operated by the Borrower or any of its Restricted Subsidiaries).
“Consolidated Fixed
Charge Coverage Ratio” shall mean the ratio of (a) Consolidated Adjusted EBITDA to (b) Consolidated Fixed Charges, in each case measured as of the last day of the most recently ended four consecutive Fiscal Quarters for
which financial statements are required to have been delivered pursuant to Section 5.1(a) or (b).
“Consolidated Fixed
Charges” shall mean the sum of (a) Consolidated Interest Expense plus (b) all cash Restricted Payments (excluding items eliminated in consolidation) on any series of preferred stock or Disqualified Stock of the Borrower and
its Restricted Subsidiaries for the applicable period.
“Consolidated Interest
Coverage Ratio” shall mean, as of any date, the ratio of (a) Consolidated Adjusted EBITDA to (b) Consolidated Interest Expense paid in cash in each case measured as of the last day of the most recently ended four
consecutive Fiscal Quarters for which financial statements are required to have been delivered pursuant to Section 5.1(a) or (b).
10
“Consolidated Interest
Expense” shall mean, for the Borrower and its Restricted Subsidiaries for any period determined on a consolidated basis, the sum of (a) total interest expense, including without limitation, (i) non-cash interest expense
with respect to the Existing Notes and (ii) the interest component of any payments in respect of Finance Lease Liabilities capitalized or expensed during such period (whether or not actually paid during such period) plus (b) the net amount payable (or minus the net amount
receivable) with respect to Hedging Transactions during such period (whether or not actually paid or received during such period).
“Consolidated Net
Income” shall mean, for the Borrower and its Restricted Subsidiaries for any period determined on a consolidated basis, the net income (or loss) of the Borrower and its Restricted Subsidiaries for such period but
excluding therefrom (to the extent otherwise included therein) (a) any extraordinary gains or losses, (b) any gains attributable to write-ups of assets and (c) any equity interest of the Borrower or any Restricted Subsidiary of the
Borrower in the unremitted earnings of any Person that is not a Restricted Subsidiary.
“Consolidated Net
Leverage Ratio” shall mean the ratio of (a) Consolidated Total Debt as of such date minus up to $500 million of
Qualified Cash minus up to $500 million of Specified Cash, measured as of the last day of the most recently ended four consecutive
Fiscal Quarters for which financial statements are required to have been delivered pursuant to Section 5.1(a) or (b) to (b) Consolidated Adjusted EBITDA for the four consecutive Fiscal Quarters for which financial statements are required to have been delivered pursuant to Section 5.1(a) or (b).
“Consolidated Total
Assets” shall mean the total assets of the Borrower and its Restricted Subsidiaries calculated in accordance with GAAP on a consolidated basis as of the last day of the most recent fiscal quarter preceding such date of
determination for which financial statements of the Borrower have been delivered pursuant to Section 5.1(a) or (b).
“Consolidated Total
Debt” shall mean, as of any date, all Indebtedness of the Borrower and its Restricted Subsidiaries measured on a consolidated basis as of such date, but excluding Indebtedness of the type described in subsection (i) of
the definition thereto.
“Contract Provider”
shall mean any Person or any employee, agent or subcontractor of such Person who provides professional health care services under or pursuant to any contract or other arrangement with the Borrower or any Subsidiary.
“Contractual Obligation”
shall mean, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
“Continuing Director” shall mean, with respect to any period, any individuals (A) who were members of the board of directors or other equivalent governing body
of the Borrower on the first day of such period, (B) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (A) above constituting at the time of such election or
nomination at least a majority of that board or equivalent governing body, or (C) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (A) and (B) above
constituting at the time of such election or nomination at least a majority of that board or equivalent governing body.
11
“Covered Entity”
shall mean any of the following: (a) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §–252.82(b); (b) a “covered bank” as that term is defined in, and interpreted in accordance with, 12
C.F.R. §–47.3(b); and (c) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §–382.2(b).
“Covered Party”
shall have the meaning provided in Section 11.19
“Debtor Relief Laws”
shall mean the Bankruptcy Code of the United States of America, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or
similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect.
“Default”
shall mean any condition or event that, with the giving of notice or the lapse of time or both, would constitute an Event of Default.
“Default Interest”
shall have the meaning set forth in Section 2.13(c).
“Default Right”
has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§–252.81, 47.2 or 382.1, as applicable.
“Defaulting Lender”
shall mean, subject to Section 2.26(b), at any time, any Lender as to which the Administrative Agent has notified the Borrower that (a) such
Lender has failed for three (3) or more Business Days to comply with its obligations under this Agreement to make a Loan (unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result
of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied)
and/or to make a payment to the Issuing Bank in respect of a Letter of Credit or to the Swingline Lender in respect of a Swingline Loan (each a “funding
obligation”), (b) such Lender has notified the Administrative Agent or the Borrower, or has stated publicly, that it will not comply with any such funding obligation hereunder (unless such writing or public statement
relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default,
shall be specifically identified in such writing or public statement) cannot be satisfied), (c) such Lender has, for three (3) or more Business Days, failed to confirm in writing to the Administrative Agent, in response to a written
request of the Administrative Agent, that it will comply with its funding obligations hereunder, (d) a Lender Insolvency Event has occurred and is continuing with respect to such Lender, or (e) such Lender has become the subject of a
Bail-In Action. The Administrative Agent will promptly send to all parties hereto a copy of any notice to the Borrower provided for in this definition.
“Designated Non-cash
Consideration” shall mean any non-cash consideration received by the Borrower or one or more of its Restricted Subsidiaries in connection with an Asset Sale that is designated as Designated Non-cash Consideration
pursuant to a certificate by a Responsible Officer of the Borrower at the time of such Asset Sale. Any particular item of Designated Non-cash Consideration will cease to be considered to be outstanding once it has been sold for cash
or Permitted Investments.
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“Disqualified Stock”
shall mean any Capital Stock that, by its terms (or by the terms of any security into which it is convertible, or for which it is exchangeable, in each case at the option of the holder of the Capital Stock), or upon the happening of
any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder of the Capital Stock, in whole or in part, on or prior to the date that is 91 days after
the Latest Maturity Date; provided, however,
that only the portion of Capital Stock which so matures or is mandatorily redeemable, is so convertible or exchangeable at the option of the holder thereof or is so redeemable at the option of the holder thereof prior to such date
shall be deemed to be Disqualified Stock; provided, further,
however, that if such Capital Stock is issued to any employee or to any plan for the benefit of employees of the Borrower or its Subsidiaries or by any such plan to such employees, such Capital Stock shall not constitute
Disqualified Stock solely because it may be required to be repurchased by the Borrower in order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s termination, death or disability; provided, further, that any class of Capital Stock of
such Person that by its terms authorizes such Person to satisfy its obligations thereunder by delivery of Capital Stock that is not Disqualified Stock shall not be deemed to be Disqualified Stock.
“Dollar(s)”
and the sign “$” shall mean lawful money of the United States of America.
“Domestic
Subsidiary” shall mean any Restricted Subsidiary that is organized under the laws of any political subdivision of the United States.
“Early Opt-in
Election” shall mean the occurrence of:
(a) (i) a determination by the Administrative Agent or (ii) a notification by the Required Lenders to the Administrative Agent (with a copy to the Borrower) that the Required Lenders have determined that
U.S. dollar-denominated syndicated credit facilities being executed at such time, or that include language similar to that contained in Section
2.16(b)-(e) are being executed or amended, as applicable, to incorporate or adopt a new benchmark interest rate to replace the Screen Rate, and
(b) (i) the election by the Administrative Agent or (ii) the election by the Required Lenders to declare that an Early Opt-in Election has occurred and the provision, as applicable, by the Administrative
Agent of written notice of such election to the Borrower and the Lenders or by the Required Lenders of written notice of such election to the Administrative Agent.
“EEA Financial
Institution” shall mean (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 clause (a) or
(b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country”
shall mean any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution
Authority” shall mean 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.
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“Environmental
Laws” shall mean all laws, rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into by or with any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural resources, the management, Release or threatened Release of any Hazardous Material or to health and safety matters.
“Environmental
Liability” shall mean any liability, contingent or otherwise (including any liability for damages, costs of environmental investigation and remediation, costs of administrative oversight, fines, natural resource
damages, penalties or indemnities), of the Borrower or any Restricted Subsidiary directly or indirectly resulting from or based upon (a) any actual or alleged violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c) any actual or alleged 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.
“ERISA”
shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time, and any successor statute.
“ERISA Affiliate”
shall mean any trade or business (whether or not incorporated), which, together with the Borrower, is treated as a single employer under Section 414(b) or (c) of the Code or, solely for the purposes of Section 302 of ERISA and
Section 412 of the Code, is treated as a single employer under Section 414 of the Code.
“ERISA Event” shall mean (a) any “reportable event”, as defined in Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b) the failure of any Plan to meet the minimum funding standard applicable to the Plan for a plan year under Section 412 of the Code or Section 302 of
ERISA, whether or not waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan administrator appointed
by the PBGC of any notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the Borrower or any of its ERISA Affiliates of any liability with respect to
the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the Borrower or any ERISA Affiliate
of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA.
“EU Bail-In
Legislation Schedule” shall mean the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.
“Eurodollar”
when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, bears interest at a rate determined by reference to the Adjusted LIBOR.
“Event of Default”
shall have the meaning set forth in Article VIII.
14
“Excluded Swap
Obligation” shall mean, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guaranty of such Guarantor of, or the grant by such Guarantor of a security interest
to secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official
interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the
Guaranty of such Guarantor, or the grant by such Guarantor of a security interest, becomes effective with respect to such Swap Obligation; provided
that, for the avoidance of doubt, in determining whether any Guarantor is an “eligible contract participant” under the Commodity Exchange Act, the keepwell agreement set forth in Section 10.8 shall be taken into account. If a Swap Obligation arises under a Master Agreement governing more than one Hedging Transaction, such exclusion shall apply only to the
portion of such Swap Obligation that is attributable to Hedging Transactions for which such Guaranty or security interest is or becomes excluded in accordance with the first sentence of this definition.
“Excluded Taxes” shall mean any of the following Taxes imposed on or with respect to a Recipient or required to be withheld
or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized
under the Laws of, or having its principal office or, in the case of any Lender, its Applicable Lending Office 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, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a Law in effect on the date
on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under Section
2.25) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.20,
amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to
such Recipient’s failure to comply with Section 2.20(g) and (d) any U.S. federal withholding Taxes imposed under FATCA.
“Exclusion
Event” shall mean an event or related events resulting in the exclusion of the Borrower or any of its Restricted Subsidiaries from participation in any Medical Reimbursement Program.
“Existing
Letters of Credit” shall mean the letters of credit issued and outstanding under the Existing Credit Agreement as set forth on Schedule
2.22.
“Existing Notes”
shall mean each of the 2022 Senior Notes, the 2025 Senior Notes and the 2028 Senior Notes.
“Extended
Commitments” shall have the meaning set forth in the definition of “Extension Permitted Amendment”.
“Extended Loans”
shall have the meaning set forth in the definition of “Extension Permitted Amendment”.
“Extending
Lenders” shall have the meaning set forth in Section 2.27(a).
“Extension
Agreement” shall mean an Extension Agreement, in form and substance reasonably satisfactory to the Administrative Agent, among the Borrower, the Administrative Agent and one or more Extending Lenders, effecting an
Extension Permitted Amendment and such other amendments hereto and to the other Loan Documents as are contemplated by Section 2.27.
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“Extension
Offer” shall have the meaning set forth in Section 2.27(a).
“Extension
Permitted Amendment” shall mean an amendment to this Agreement and the other Loan Documents, effected in connection with an Extension Offer pursuant to Section 2.27, providing for an extension of the Revolving Commitment Termination Date or maturity date applicable to the Extending Lenders’ Loans and/or Commitments of the applicable
Extension Request Class (such Loans or Commitments being referred to as the “Extended Loans” or “Extended Commitments”, as applicable) and, in connection therewith, (a) any increase or decrease in the rate of interest accruing on such Extended Loans, (b) any
increase in the fees payable to, or the inclusion of new fees to be payable to, the Extending Lenders in respect of such Extension Offer or their Extended Loans or Extended Commitments, (c) such amendments to this Agreement
and the other Loan Documents as shall be appropriate, in the reasonable judgment of the Administrative Agent, to provide the rights and benefits of this Agreement and other Loan Documents to each new “class” of loans and/or
commitments resulting therefrom and (d) any additional amendments to the terms of this Agreement applicable to the applicable Loans and/or Commitments of the Extending Lenders that are (i) less favorable to such Extending
Lenders than the terms of this Agreement prior to giving effect to such Extension Permitted Amendments (as determined in good faith by the Borrower) or (ii) applicable only to periods after the Latest Maturity Date (determined
prior to giving effect to such Extension Permitted Amendment).
“Extension
Request Class” shall have the meaning set forth in Section 2.27(a).
“Fair Market
Value” shall mean, with respect to any Asset Sale, Restricted Payment or other item, the price that would be negotiated in an arm’s-length transaction for cash between a willing seller and a willing and able
buyer, neither of which is under any compulsion to complete the transaction, as such price is determined in good faith by an officer of the Borrower.
“FATCA”
shall mean Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future
regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code.
“Federal
Funds Rate” shall mean, for any day, the rate per annum (rounded upwards, if necessary, to the next 1/100th of 1%) equal to the weighted average of the rates on overnight federal funds transactions
with member banks of the Federal Reserve System, as published by the Federal Reserve Bank of New York on the next succeeding Business Day or, if such rate is not so published for any Business Day, the Federal Funds Rate for
such day shall be the average rounded upwards, if necessary, to the next 1/100th of 1% of the quotations for such day on such transactions received by the Administrative Agent from three federal funds brokers of recognized
standing selected by the Administrative Agent. Notwithstanding anything to the contrary in the foregoing, if the Federal Funds Rate is less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
“Federal
Reserve Bank of New York’s Website” shall mean the website of the Federal Reserve Bank of New York at xxxx://xxx.xxxxxxxxxx.xxx, or any successor source.
“Fee Letter”
shall mean that certain fee letter dated as of May 27, 2020, executed by SunTrust Xxxxxxxx Xxxxxxxx, Inc. and Truist Bank and accepted by the Borrower.
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“Finance
Lease Liabilities” of any Person shall mean all obligations of such Person to pay rent or other amounts under any lease (or other arrangement conveying the right to use) of real or personal property, or a
combination thereof, which obligations are required to be classified and accounted for as finance leases on a balance sheet of such Person, and the amount of such obligations shall be the capitalized amount thereof. For the
avoidance of doubt, “Finance Lease Liabilities” are subject to Section 1.3(b).
“Fiscal
Quarter” shall mean any fiscal quarter of the Borrower.
“Fiscal
Year” shall mean any fiscal year of the Borrower.
“Foreign
Lender” shall mean (a) if the Borrower is a U.S. Person, a Lender that is not a U.S.
Person, and (b) if the Borrower is not a U.S. Person, a Lender that is resident or organized under the laws of a jurisdiction other than that in which the Borrower is resident for tax purposes.
“Foreign
Subsidiary” shall mean any Restricted Subsidiary that is not a Domestic Subsidiary.
“GAAP”
shall mean generally accepted accounting principles in the United States applied on a consistent basis and subject to the terms of Section 1.3.
“Governmental
Authority” shall mean the government of the United States of America, any other nation or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body,
court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the
European Union or the European Central Bank).
“Guarantee”
of or by any Person (the “guarantor”) shall mean any obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the “primary obligor”) in any manner,
whether directly or indirectly and including any obligation, direct or indirect, of the guarantor (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to
purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (ii) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or
other obligation of the payment thereof, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation or (iv) as an account party in respect of any letter of credit or letter of guaranty issued in support of such Indebtedness or obligation; provided, that the term “Guarantee” shall not include endorsements for collection or deposit in the ordinary course of business. The amount of any Guarantee shall be deemed to be
an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee is made or, if not so stated or determinable, the maximum reasonably anticipated liability in respect thereof
(assuming such Person is required to perform thereunder) as determined by such Person in good faith. The term “Guarantee” used as a verb has a corresponding meaning.
“Guarantor
Joinder Agreement” shall mean a joinder agreement substantially in the form of Exhibit 5.10 executed and delivered by
a Restricted Subsidiary in accordance with the provisions of Section 5.10 or any other documents as the Administrative Agent shall
deem appropriate for such purpose.
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“Guarantors”
shall mean, collectively, (a) each Person that joins as a Guarantor pursuant to Section 5.10 or otherwise after the Closing Date,
(b) with respect to (i) any Hedging Obligations between any Loan Party (other than the Borrower) and any Lender-Related Hedge Provider that are permitted to be incurred pursuant to Section 7.10 and any Bank Product Obligations owing by any Loan Party (other than the Borrower), the Borrower and (ii) the payment and performance by each
Specified Loan Party of its obligations under its Guaranty with respect to all Swap Obligations, the Borrower, and (c) the successors and permitted assigns of the foregoing.
“Guaranty”
shall mean the Guaranty made by the Guarantors in favor of the Administrative Agent, for the benefit of the holders of the Obligations, pursuant to Article X.
“Hazardous
Materials” shall mean all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos
containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.
“Hedging
Obligations” of any Person shall mean any and all obligations of such Person, whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired under (a) any and all Hedging
Transactions, (b) any and all cancellations, buy backs, reversals, terminations or assignments of any Hedging Transactions and (c) any and all renewals, extensions and modifications of any Hedging Transactions and any and
all substitutions for any Hedging Transactions.
“Hedging
Transaction” of any Person shall mean (a) any transaction (including an agreement with respect to any such transaction) now existing or hereafter entered into by such Person that is a rate swap transaction,
swap option, basis swap, forward rate transaction, commodity swap, commodity option, equity or equity index swap or option, bond option, interest rate option, foreign exchange transaction, cap transaction, floor
transaction, collar transaction, currency swap transaction, cross-currency rate swap transaction, currency option, spot transaction, credit protection transaction, credit swap, credit default swap, credit default option,
total return swap, credit spread transaction, repurchase transaction, reverse repurchase transaction, buy/sell-back transaction, securities lending transaction, or any other similar transaction (including any option with
respect to any of these transactions) or any combination thereof, whether or not any such transaction is governed by or subject to any master agreement and (b) any and all transactions of any kind, and the related
confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange
Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.
“HHS”
shall mean the United States Department of Health and Human Services and any successor thereof.
“HIPAA”
shall mean the Health Insurance Portability and Accountability Act of 1996, Pub. L. 104-191, Aug. 21, 1996, 110 Stat. 1936, and regulations promulgated pursuant thereto.
“HITECH
Act” shall mean the Health Information Technology for Economic and Clinical Health Act, Title XIII of Division A and Title IV of Division B of the American Recovery and Reinvestment Act of 2009 (ARRA), Pub.
L. 111-5, Feb. 17, 2009, and regulations promulgated pursuant thereto.
“HMO”
shall mean any health maintenance organization or managed care organization, including without limitation any organized delivery system or utilization review organization, any Person doing business as a health maintenance
organization or managed care organization, or any Person required to qualify or be licensed as a health maintenance organization or managed care organization under applicable law (including HMO Regulations).
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“HMO
Business” shall mean the business of operating an HMO or other similar regulated entity or business.
“HMO
Event” shall mean (i) any non-compliance by the Borrower or any of its HMO Subsidiaries with any of the material terms and provisions of the HMO Regulations pertaining to its fiscal soundness, solvency or
financial conditions that is materially adverse to the Borrower and its Restricted Subsidiaries taken as a whole; or (ii) the assertion in writing, after the date hereof, by any HMO Regulator that it intends to take
administrative action against the Borrower or any of its HMO Subsidiaries to revoke or modify in a manner materially adverse to the Borrower and its Restricted Subsidiaries, taken as a whole, any material license,
material charter or material permit or to enforce the fiscal soundness, solvency or financial provisions or requirements of the HMO Regulations against the Borrower or any or its HMO Subsidiaries.
“HMO
Regulations” shall mean all laws, rules, regulations, directives and administrative orders applicable under Federal or state law to any HMO Subsidiary, including Part 422 of Chapter IV of Title 42 of the
Code of Federal Regulations and Subchapter XI of Chapter 6A of Title 42 of the United Stated Code Annotated (and any regulations, orders and directives promulgated or issued pursuant thereto, including Part 417 of
Chapter IV of Title 42 of the Code of Federal Regulations).
“HMO
Regulator” shall mean any Person charged with the administration, oversight or enforcement of any HMO Regulation, whether primarily, secondarily or jointly.
“HMO
Subsidiary” shall mean (a) any Restricted Subsidiary that is designated as an HMO Subsidiary on Schedule 4.15,
(b) any other Domestic Subsidiary that shall become capitalized or licensed as an HMO, shall conduct HMO Business or shall provide managed care services and (c) any other Domestic Subsidiary, substantially all the assets
of which consist of Capital Stock of a HMO Subsidiary described in clause (a) or (b) above.
“Incremental
Term Loan” shall have the meaning set forth in Section 2.23.
“Incremental
Term Loan Commitment” shall mean, with respect to Persons identified as an “Incremental Term Loan Lender” in the applicable supplement or joinder in form and substance satisfactory to the Administrative
Agent, together with their respective successors and assigns, the commitment of such Person to make the Incremental Term Loan hereunder pursuant to such supplement or joinder; provided that, at any time after the funding of the Incremental Term Loan, determination of “Required Lenders” shall include the outstanding principal amount of the
Incremental Term Loan.
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“Indebtedness”
of any Person shall mean, without duplication (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments, (c) all
obligations of such Person in respect of the deferred purchase price of property or services (other than trade payables incurred in the ordinary course of business; provided, that for purposes of Section 8.1(g), trade payables overdue by more than 120 days shall be included in this definition except to the extent that any of such trade payables are being
disputed in good faith and by appropriate measures), (d) all obligations of such Person under any conditional sale or other title retention agreement(s) relating to property acquired by such Person, (e) all Finance
Lease Liabilities of such Person, (f) all obligations, contingent or otherwise, of such Person in respect of letters of credit, acceptances or similar extensions of credit, (g) all obligations of such Person,
contingent or otherwise, to purchase, redeem, retire or otherwise acquire for value any Capital Stock of such Person, (h) Off-Balance Sheet Liabilities, (i) the Hedge Termination Value of all Hedging Obligations, (j)
all Guarantees of such Person of the type of Indebtedness described in clauses (a) through (i) above and (k) all Indebtedness of a third party secured by any Lien on property owned by such Person, whether or not such
Indebtedness has been assumed by such Person. The Indebtedness of any Person shall include the Indebtedness of
any partnership or joint venture in which such Person is a general partner or a joint venturer, except to the extent that the terms of such Indebtedness provide that such Person is not liable therefor.
“Indemnified
Taxes” shall mean (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent
not otherwise described in (a), Other Taxes.
“Insurance
Subsidiary” shall mean (a) any Restricted Subsidiary that is engaged in the insurance business, assumes financial risk and that is regulated by the relevant Governmental Authority and (b) any other
Domestic Subsidiary, substantially all the assets of which consist of Capital Stock of an Insurance Subsidiary described in clause (a) above.
“Interest
Period” shall mean with respect to any Eurodollar Borrowing, a period of one,
two, three or six months (in each case, subject to availability); provided, that
(a) the initial Interest Period for such Borrowing shall commence on the date of such Borrowing (including the date of any conversion from a Borrowing of another Type), and
each Interest Period occurring thereafter in respect of such Borrowing shall commence on the day on which the next preceding Interest Period expires;
(b) if any Interest Period would otherwise end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day, unless such
Business Day falls in another calendar month, in which case such Interest Period would end on the next preceding Business Day;
(c) any Interest Period which begins on the last Business Day of a calendar month or on a day for which there is no numerically corresponding day in the calendar month at
the end of such Interest Period shall end on the last Business Day of such calendar month; and
(d) no Interest Period may extend beyond the later of the Revolving Commitment Termination Date or, if applicable the Latest Maturity Date.
“Interim
Financial Statements” shall mean the unaudited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal quarter ended March 31, 2020, including balance sheets and statements
of income or operations, stockholders’ equity and cash flows.
“Investments”
shall mean, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) purchase or other acquisition of any Capital Stock of another Person, (b) a loan, advance, other
evidence of indebtedness or capital contribution to, Guarantee or assumption of debt of, or purchase or other acquisition of any other indebtedness or equity participation or interest in, another Person, or (c) an
Acquisition. For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment.
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“IRS”
shall mean the United States Internal Revenue Service.
“Issuer
Documents” shall mean with respect to any Letter of Credit, the Letter of Credit Application, and any other document, agreement and instrument entered into by the Issuing Bank and any Borrower (or any
Subsidiary) or in favor of the Issuing Bank and relating to such Letter of Credit.
“Issuing
Bank” shall mean Truist Bank in its capacity as the issuer of Letters of Credit hereunder, or any successor issuer of Letters of Credit.
“Latest
Maturity Date” shall mean, at any date of determination, the latest maturity or expiration date applicable to any Loan or Commitment hereunder at such time, including the latest maturity or expiration
date of any Incremental Term Loan.
“Laws”
or “Law” shall mean, collectively, all international, foreign, federal, state and local statutes, treaties, rules,
guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement,
interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case
whether or not having the force of law.
“LC
Commitment” shall mean that portion of the Aggregate Revolving Commitments that may be used by the Borrower for the issuance of Letters of Credit in an aggregate face amount not to exceed $100,000,000.
“LC
Disbursement” shall mean a payment made by the Issuing Bank pursuant to a Letter of Credit.
“LC
Documents” shall mean all applications, agreements and instruments relating to the Letters of Credit but excluding the Letters of Credit.
“LC
Exposure” shall mean, at any time, the sum of (a) the aggregate undrawn amount of all outstanding Letters of Credit at such time, plus (b) the aggregate amount of all LC Disbursements that have not been reimbursed by or on behalf of the Borrower at such time. The LC Exposure of any Lender shall be its Pro
Rata Share of the total LC Exposure at such time. For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by
reason of the operation of Rule 3.14 of the International Standby Practices 1998, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.
“Lender
Insolvency Event” shall mean that (a) a Lender or its Parent Company is 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, (b) a Lender or its Parent Company is the subject of a bankruptcy, insolvency, reorganization, liquidation or similar proceeding, or a
receiver, trustee, conservator, custodian or the like has been appointed for such Lender or its Parent Company, or such Lender or its Parent Company has taken any action in furtherance of or indicating its consent to
or acquiescence in any such proceeding or appointment, or (c) a Lender or its Parent Company has been adjudicated as, or determined by any Governmental Authority having regulatory authority over such Person or its
assets to be, insolvent; provided that, for the avoidance of doubt, a Lender Insolvency Event shall not be deemed to have occurred solely by virtue of the ownership or acquisition of any equity interest in or
control of a Lender or a Parent Company thereof by a Governmental Authority or an instrumentality thereof.
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“Lender-Related
Hedge Provider” shall mean any Person that, (a) (i) at the time it enters into a Hedging Transaction with any Loan Party, is a Lender or an Affiliate of a Lender or (ii) has entered into a Hedging
Transaction with any Loan Party that exists on the Closing Date, and such Person is a Lender or an Affiliate of a Lender on the Closing Date and (b) except when the Lender-Related Hedge Provider is Truist Bank and
its Affiliates, has provided prior written notice to the Administrative Agent which has been acknowledged by the Borrower of (x) the existence of such Hedging Transaction, and (y) the methodology to be used by such
parties in determining the obligations under such Hedging Transaction from time to time. In no event shall any Lender-Related Hedge Provider acting in such capacity be deemed a Lender for purposes hereof to the
extent of and as to Hedging Obligations except that each reference to the term “Lender” in Article IX and Section 11.4 shall be deemed to include such
Lender-Related Hedge Provider. In no event shall the approval of any such Person in its capacity as Lender-Related Hedge Provider be required in connection with the release or termination of any security interest
or Lien of the Administrative Agent. No new Hedging Transactions may be established at any time that a Default or Event of Default exists.
“Lenders”
shall mean each of the Persons identified as a “Lender” on the signature pages hereto and each Additional Lender that joins this Agreement pursuant to Section 2.23 and their successors and assigns and shall include, where appropriate, the Swingline Lender.
“Letter
of Credit” shall mean any stand-by letter of credit issued pursuant to Section 2.22 by the Issuing Bank for
the account of the Borrower or any Subsidiary pursuant to the LC Commitment.
“Letter
of Credit Application” shall mean an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by Issuing Bank.
“Letter
of Credit Fee” shall have the meaning set forth in Section 2.14(c).
“Lien”
shall mean any mortgage, pledge, security interest, lien (statutory or otherwise), charge, encumbrance, hypothecation, assignment, deposit arrangement, or other arrangement having the practical effect of any of the
foregoing or any preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement and any capital
lease having the same economic effect as any of the foregoing).
“Limited
Condition Acquisition” means any Acquisition whose consummation is not conditioned on the availability of, or on obtaining, third party financing.
“Loan
Documents” shall mean, collectively, this Agreement, the LC Documents, the Fee Letter, all Notices of Borrowing, all Notices of Conversion/Continuation, all Compliance Certificates, all Issuer
Documents, any promissory notes issued hereunder and any and all other instruments, agreements, documents and writings executed in connection with any of the foregoing.
“Loan
Parties” shall mean, collectively, the Borrower and each Guarantor.
“Loans”
shall mean all Revolving Loans, Swingline Loans and Incremental Term Loans (if any) in the aggregate or any of them, as the context shall require.
22
“Magellan
Acquisition” shall mean the Acquisition of certain assets and equity interests owned directly or indirectly by Magellan Healthcare, Inc. by the Borrower pursuant to that certain Stock and Asset
Purchase Agreement dated as of April 30, 2020 (as amended from time to time) by and between Magellan Health, Inc. and the Borrower.
“Master
Agreement” shall have the meaning set forth in the definition of “Hedging Transaction.”
“Material
Adverse Effect” shall mean, with respect to any event, act, condition or occurrence of whatever nature (including any adverse determination in any litigation, arbitration, or governmental
investigation or proceeding), whether singularly or in conjunction with any other event or events, act or acts, condition or conditions, occurrence or occurrences whether or not related, resulting in a material
adverse change in, or a material adverse effect on, (a) the business, results of operations, financial condition, assets, liabilities or prospects of the Borrower and its Restricted Subsidiaries taken as a whole,
(b) the ability of the Loan Parties to perform any of their respective obligations under the Loan Documents, (c) the rights and remedies of the Administrative Agent, the Issuing Bank, Swingline Lender, and the
Lenders under any of the Loan Documents or (d) the legality, validity or enforceability of any of the Loan Documents.
“Material
Contract” shall mean any Contractual Obligation of the Borrower or any Restricted Subsidiary if the revenues of the Borrower and its Restricted Subsidiaries attributable to such Contractual
Obligation exceed five percent (5%) of the total revenues of the Borrower and its Restricted Subsidiaries on a consolidated basis for the period of the four fiscal quarters most recently ended for which the
Borrower has delivered financial statements pursuant to Section 5.1(a) or (b).
“Material
Domestic Subsidiary” shall mean any Domestic Subsidiary of the Borrower (other than an HMO Subsidiary, an Insurance Subsidiary, or any Subsidiary which is required by Law to maintain levels of
solvency, or capital, or net assets that would not be achieved if it provided a full and unconditional guaranty of the Obligations) which, as of the end of the most recent fiscal quarter for which the Borrower
has delivered financial statements pursuant to Section 5.1(a) or (b) (the “Test Date”), has (a) revenues in excess of 1.0% of the Borrower’s
consolidated revenues for the twelve month period preceding the Test Date or (b) total assets in excess of 2.0% of Consolidated Total Assets as of the Test Date; provided, that if at any time all Domestic Subsidiaries (other than an HMO Subsidiary or Insurance Subsidiary) that are not Guarantors account in the aggregate for
greater than (i) ten percent (10%) of the Borrower’s consolidated revenues for the twelve month period preceding any Test Date or (ii) ten percent (10%) of Consolidated Total Assets as of any Test Date, then the
Borrower shall cause one or more of such Domestic Subsidiaries to become Guarantors pursuant to Section 5.10 such that
immediately thereafter the remaining Domestic Subsidiaries (other than an HMO Subsidiary, an Insurance Subsidiary or any Subsidiary which is required by Law to maintain levels of solvency, or capital, or net
assets that would not be achieved if it provided a full and unconditional guaranty of the Obligations) that are not Guarantors shall not exceed either threshold set forth in clause (i) or (ii) of this proviso.
Notwithstanding the foregoing, Xxxxxx Healthcare Data Center, Inc., a New Mexico corporation (“Data Center”), shall not
be a Material Domestic Subsidiary so long as Data Center has any amounts subject to tax recapture as a result of its participation in the U.S. federal government’s New Market Tax Credit Program.
“Material
Indebtedness” shall mean any Indebtedness (other than the Loans and Letters of Credit) and Hedging Obligations of the Borrower or any of its Restricted Subsidiaries, individually or in an aggregate
committed or outstanding principal amount exceeding $100,000,000. For purposes of determining the amount of attributed Indebtedness from Hedging Obligations, the “principal amount” of any Hedging Obligations at
any time shall be the Net Xxxx-to-Market Exposure of such Hedging Obligations.
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“Material
License” shall mean (i) as to any Person, any license, permit authorization or consent from a Governmental Authority or other Person and any registration, notice of filing with a Governmental
Authority or other Person which if not obtained, held or made would have a Material Adverse Effect, and (ii) as to any other Person who is a party to this Agreement or any of the other Loan Documents, any
license, permit, authorization or consent from a Governmental Authority or other Person and any registration, notice or filing with a Governmental Authority or other Person that is necessary for the execution
or performance by such party, or the validity or enforceability against such party, of this Agreement or such other Loan Document.
“Medicaid”
shall mean that means-tested entitlement program under Title XIX of the Social Security Act, which provides Federal grants to States for medical assistance based on specific eligibility criteria, as set forth
at Section 1396, et seq. of Title 42 of the United States Code, as amended, and any statute succeeding thereto.
“Medicaid
Regulations” shall mean (a) all Federal statutes (whether set forth in Title XIX of the Social Security Act or elsewhere) affecting the medical assistance program established by Title XIX of the
Social Security Act and any statues succeeding thereto, (b) all applicable provisions of all Federal rules, regulations, manuals and orders of all Governmental Authorities promulgated pursuant to or in
connection with the statues described in clause (a) above and all Federal administrative, reimbursement and other guidelines of all Governmental Authorities having the force of law promulgated pursuant to or in
connection with the statues described in clause (a) above, (c) all state statutes and plans for medical assistance enacted in connection with the statutes and provisions described in clauses (a) and (b) above,
and (d) all applicable provisions of all rules, regulations, manuals and orders of all Governmental Authorities promulgated pursuant to or in connection with the statutes described in clause (c) above and all
state administrative, reimbursement and other guidelines of all Governmental Authorities having the force of law promulgated pursuant to or in connection with the statutes described in clause (b) above, in each
case as may be amended, supplemented or otherwise modified from time to time.
“Medical
Reimbursement Programs” shall mean, collectively, the Medicare, Medicaid and TRICARE programs and any other health care program operated by or financed in whole or in part by any foreign or
domestic Federal, state or local government and any other non-government funded thirty-party payor programs to which the Borrower or any Subsidiary is subject.
“Medicare”
shall mean that government-sponsored entitlement program under Title XVIII of the Social Security Act, which provides for a health insurance system for eligible elderly and disabled individuals, as set forth at
Section 1395, et seq. of Title 42 of the United States Code, as amended, and any statute succeeding thereto.
“Medicare
Regulations” shall mean, collectively, (a) all Federal statues (whether set forth in Title XVIII of the Social Security Act or elsewhere) affecting the health insurance program for the aged and
disabled established by Title XVIII of the Social Security Act and any statues succeeding thereto and (b) all applicable provisions of all rules, regulations, manuals and orders and administrative,
reimbursement and other guidelines having the force of law of all Governmental Authorities (including CMS, the OIG, HHS or any person succeeding to the functions of any of the foregoing) promulgated pursuant to
or in connection with any of the foregoing having the force of law, as each may be amended, supplemented or otherwise modified from time to time.
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“Molina Family” shall mean, collectively, (a) Xxxxxx X. Xxxxxx, Xxxx Xxxxxx Xxxxxxxxx, Xxxx X. Xxxxxx, Xxxxx X. Xxxx or Xxxxxxxxx Xxxxxx, (b) the spouse and lineal descendants and
spouses of lineal descendants of any Person named in clause (a), (c) the estates and legal representatives of any Person named in clauses (a) or (b), and/or (d) trusts established for the benefit of any
Person named in clauses (a) or (b) and controlled by any Person named in clauses (a) or (b).
“Moody’s” shall mean Xxxxx’x Investors Service, Inc. or any successor to the ratings agency business thereof.
“Multiemployer Plan” shall mean any employee benefit plan of the type described in Section 4001(a)(3) of ERISA to which the Borrower makes or is obligated to make contributions or with
respect to which Borrower has any liability (including on account of an ERISA Affiliate).
“Net Xxxx-to-Market Exposure” of any Person shall mean, as of any date of determination with respect to any Hedging Obligation, the excess (if any) of all unrealized losses over all
unrealized profits of such Person arising from such Hedging Obligation. “Unrealized losses” shall mean the fair market value of the cost to such Person of replacing the Hedging Transaction giving rise to
such Hedging Obligation as of the date of determination (assuming the Hedging Transaction were to be terminated as of that date), and “unrealized profits” means the fair market value of the gain to such
Person of replacing such Hedging Transaction as of the date of determination (assuming such Hedging Transaction were to be terminated as of that date).
“Non-Defaulting Lender” shall mean, at any time, a Lender that is not a Defaulting Lender.
“Non-Recourse Debt” shall mean, Indebtedness: (a) as to which neither the Borrower nor any of its Restricted Subsidiaries (i) provides credit support of any kind (including any
undertaking, agreement or instrument that would constitute Indebtedness), (ii) is directly or indirectly liable as a guarantor or otherwise, or (iii) constitutes the lender; and (b) as to which the lenders
have been notified in writing that they will not have any recourse to the stock or assets of the Borrower or any of its Restricted Subsidiaries, in each case other than with respect to the pledge of Capital
Stock of any obligor securing such Indebtedness.
“Note” shall have the meaning set forth in Section 2.10(b).
“Notices of Borrowing” shall mean, collectively, the Notices of Revolving Borrowing and the Notices of Swingline Borrowing.
“Notice of Conversion/Continuation” shall mean the notice given by the Borrower to
the Administrative Agent in respect of the conversion or continuation of an outstanding Borrowing as provided in Section 2.7(b).
“Notice of Revolving Borrowing” shall have the meaning set forth in Section 2.3.
“Notice of Swingline Borrowing” shall have the meaning set
forth in Section 2.4.
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“Obligations” shall mean, collectively, (a) all amounts owing by the Loan Parties to the Administrative Agent, the Issuing Bank, any Lender (including the Swingline Lender) or the
Arrangers pursuant to or in connection with this Agreement or any other Loan Document or otherwise with respect to any Loan or Letter of Credit including without limitation, all principal, interest
(including any interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Borrower, whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding), all reimbursement obligations, fees, expenses, indemnification and reimbursement payments, costs and expenses (including all fees and
expenses of counsel to the Administrative Agent, the Issuing Bank and any Lender (including the Swingline Lender) incurred pursuant to this Agreement or any other Loan Document), whether direct or indirect,
absolute or contingent, liquidated or unliquidated, now existing or hereafter arising hereunder or thereunder, (b) all Hedging Obligations owed by any Loan Party to any Lender-Related Hedge Provider
permitted by Section 7.10, and (c) all Bank Product Obligations, together with all renewals, extensions,
modifications or refinancings of any of the foregoing; provided, that “Obligations” of a Guarantor shall exclude
any Excluded Swap Obligations of such Guarantor.
“OFAC” shall mean the U.S. Department of the Treasury’s Office of Foreign Assets Control.
“Off-Balance Sheet Liabilities” of any Person shall mean (i) any repurchase obligation or liability of such Person with respect to accounts or notes receivable sold by such Person,
(ii) any liability of such Person under any sale and leaseback transactions, including (x) the sale and leaseback of the Xxxxxx Center located in Long Beach California, and the Ohio health plan office
building located in Columbus, Ohio and (y) any other sale and leaseback transactions, whether or not such transactions create a liability on the balance sheet of such Person, (iii) any Synthetic Lease
Obligation or (iv) any obligation arising with respect to any other transaction which is the functional equivalent of or takes the place of borrowing but which does not constitute a liability on the balance
sheet of such Person.
“OIG” shall mean the Office of Inspector General of HHS and any successor thereof.
“Organization Documents” shall mean, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive
documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and (c) with
respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument,
filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if
applicable, any certificate or articles of formation or organization of such entity.
“OSHA” shall mean the Occupational Safety and Health Act of 1970, as amended from time to time, and any successor statute.
“Other Connection Taxes” shall mean, 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 any Loan or Loan Document).
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“Other Taxes” shall mean all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the
execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that
are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.25).
“Parent Company” shall mean, with respect to a Lender, the bank holding company (as defined in Regulation Y), if any, of such Lender, and/or any Person owning, beneficially or of
record, directly or indirectly, a majority of the shares of such Lender.
“Participant” shall have the meaning set forth in Section 11.4(d).
“Participant Register” shall have the meaning set forth in Section 11.4(e).
“Payment Office” shall mean the office of the Administrative Agent located at 0000 Xxxxxxxxx Xxxx, XX, Xxxxxxx, Xxxxxxx 00000, or such other location as to which the Administrative
Agent shall have given written notice to the Borrower and the other Lenders.
“PBGC” shall mean the Pension Benefit Guaranty Corporation referred to and
defined in ERISA, and any successor entity performing similar functions.
“Permitted Acquisition” shall mean (a) the Magellan Acquisition and (b) an Investment consisting of an Acquisition by the Borrower or any Restricted Subsidiary, provided that (i) subject, in the case of a Limited Condition Acquisition in accordance with Section 1.8, no Default or Event of Default shall have occurred and be continuing or would result from such Acquisition, (ii) the
property acquired (or the property of the Person acquired) in such Acquisition is used or useful in the same or a similar line of business as the Borrower and its Restricted Subsidiaries were engaged in
on the Closing Date (or any reasonable extensions or expansions thereof), (iii) in the case of an Acquisition of the Capital Stock of another Person, the board of directors (or other comparable governing
body) of such other Person shall have duly approved such Acquisition, (iv) subject, in the case of a Limited Condition Acquisition in accordance with Section 1.8, if the consideration for such Acquisition exceeds 10.0% of Consolidated Total Assets immediately prior to giving effect to such Acquisition, the
Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that after giving effect to such Acquisition on a Pro Forma Basis, the Loan Parties would be in
compliance with the financial covenants set forth in Article VI recomputed as of the end of the period of the
four Fiscal Quarters most recently ended for which the Borrower has delivered financial statements pursuant to Section
5.1(a) or (b), (v) subject, in the case of a Limited Condition Acquisition in accordance with Section 1.8, the representations and warranties made by the Loan Parties in each Loan Document shall be true and
correct in all material respects at and as if made as of the date of such Acquisition (after giving effect thereto) and (vi) if such transaction involves the purchase of an interest in a partnership
between any Loan Party as a general partner and entities unaffiliated with the Borrower as the other partners, such transaction shall be effected by having such equity interest acquired by a corporate
holding company directly or indirectly wholly‑owned by such Loan Party newly formed for the sole purpose of effecting such transaction.
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“Permitted Encumbrances” shall mean:
(a) Liens imposed by Law for taxes not yet due or which are being contested in good faith by appropriate proceedings diligently
conducted and with respect to which adequate reserves are being maintained in accordance with GAAP;
(b) statutory Liens of landlords, carriers, warehousemen, mechanics, materialmen and other Liens imposed by Law in the ordinary
course of business for amounts not yet due or which are being contested in good faith by appropriate proceedings and with respect to which adequate reserves are being maintained in accordance with
GAAP;
(c) pledges and deposits made in the ordinary course of business in compliance with workers’ compensation, unemployment insurance and
other social security Laws or regulations;
(d) deposits to secure the performance of bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance
bonds and other obligations of a like nature, in each case in the ordinary course of business;
(e) judgment and attachment liens not giving rise to a Default or an Event of Default or Liens created by or existing from any
litigation or legal proceeding that are currently being contested in good faith by appropriate proceedings and with respect to which adequate reserves are being maintained in accordance with GAAP;
(f) customary rights of set-off, revocation, refund or chargeback under deposit agreements or under the Uniform Commercial Code or
common law of banks or other financial institutions where Borrower or any of its Restricted Subsidiaries maintains deposits (other than deposits intended as cash collateral) in the ordinary course of
business; and
(g) easements, zoning restrictions, rights-of-way and similar encumbrances on real property imposed by Law or arising in the ordinary
course of business that do not secure any monetary obligations and do not materially detract from the value of the affected property or materially interfere with the ordinary conduct of business of
the Borrower and its Restricted Subsidiaries taken as a whole;
provided, that the term “Permitted Encumbrances” shall not include any Lien securing Indebtedness.
“Permitted Investments” shall mean:
(a) direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States
(or by any agency thereof to the extent such obligations are backed by the full faith and credit of the United States), in each case maturing within one year from the date of acquisition thereof;
(b) commercial paper having the highest rating, at the time of acquisition thereof, of S&P or Moody’s and in either case maturing
within six months from the date of acquisition thereof;
(c) certificates of deposit, bankers’ acceptances and time deposits maturing within 180 days of the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, any domestic office of any commercial bank organized under the Laws of the United States or any state
thereof which has a combined capital and surplus and undivided profits of not less than $500,000,000;
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(d) fully collateralized repurchase agreements with a term of not more than 30 days for securities described in clause (a) above and
entered into with a financial institution satisfying the criteria described in clause (c) above;
(e) mutual funds investing solely in any one or more of the Permitted Investments described in clauses (a) through (d) above;
(f) investments by an HMO Subsidiary or Insurance Subsidiary in all cases of the types and in the amounts (i) that qualify as
“Admitted Assets” (or the substantive equivalent thereof under the laws of the relevant jurisdiction) as determined by such HMO Subsidiary or Insurance Subsidiary’s Primary Regulator, (ii) in the case
of jurisdictions outside the United States, assets that are permissible investments for such HMO Subsidiary or Insurance Subsidiary pursuant to the regulatory regime administrated by the Primary
Regulator and (iii) that at the time such investment was made qualified as “Admitted Assets” (or the substantive equivalent thereof under the laws of the relevant jurisdiction) as determined by such
HMO Subsidiary or Insurance Subsidiary’s Primary Regulator at such time, but no longer qualify as “Admitted Assets” (or the substantive equivalent thereof under the laws of the relevant jurisdiction),
provided that the aggregate value of Investments permitted to be outstanding at any one time in reliance on
this clause (iii) shall not exceed an amount equal to 10% of the aggregate total fair market value of all “Admitted Assets” (or the substantive equivalent thereof under the laws of the relevant
jurisdiction) as determined by such HMO Subsidiary or Insurance Subsidiary’s Primary Regulator, in each case measured as of the most recently completed fiscal quarter for which financial statements
prepared in accordance with statutory accounting standards are available; and
(g) investments made in accordance with the Borrower’s Investment Policy dated as of January 30, 2019, which has been
disclosed to the Administrative Agent.
“Permitted Subordinated Debt” shall mean any Indebtedness of the Borrower or any Restricted Subsidiary evidenced by the Subordinated Debt Documents or otherwise on terms and
(including without limitation subordination provisions) acceptable to the Administrative Agent and the Required Lenders.
“Person” shall mean any individual, partnership, firm, corporation, association, joint venture, limited liability company, trust or other entity, or any Governmental Authority.
“Plan” shall mean any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of
ERISA, and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of
ERISA.
“Primary Regulator” shall mean the state regulator having primary jurisdiction over the relevant HMO Subsidiary or Insurance Subsidiary.
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“Pro Forma Basis” shall mean, for purposes of calculating compliance with respect to any Asset Sale, Recovery Event, Acquisition, Restricted Payment or incurrence of
Indebtedness, or any other transaction subject to calculation on a “Pro Forma Basis” as indicated herein, that such transaction shall be deemed to have occurred as of the first day of the period of
four Fiscal Quarters most recently ended for which the Borrower has delivered financial statements pursuant to Section
5.1(a) or (b). For purposes of any such calculation in respect of any Acquisition, (a) any
Indebtedness incurred or assumed in connection with such transaction that is not retired in connection with such transaction (i) shall be deemed to have been incurred as of the first day of the
applicable period and (ii) if such Indebtedness has a floating or formula rate, shall have an implied rate of interest for the applicable period for purposes of this definition determined by utilizing
the rate which is or would be in effect with respect to such Indebtedness as at the relevant date of determination, (b) income statement items (whether positive or negative) and Capital Expenditures
attributable to the Person or property acquired shall be included beginning as of the first day of the applicable period and (c) no adjustments for unrealized synergies shall be included.
“Pro Forma Compliance Certificate” shall mean a certificate of a Responsible Officer of the Borrower containing reasonably detailed calculations of the financial
covenants set forth in Article VI recomputed as of the end of the period of the four fiscal quarters most
recently ended for which the Borrower has delivered financial statements pursuant to Section 5.1(a) or (b) after giving effect to the applicable transaction on a Pro Forma Basis.
“Pro Rata Share” shall mean (a) with respect to any Commitment of any Lender at any time, a percentage, the numerator of which shall be such Lender’s Commitment (or if
such Commitments have been terminated or expired or the Loans have been declared to be due and payable, such Lender’s Revolving Credit Exposure), and the denominator of which shall be the sum of such
Commitments of all Lenders (or if such Commitments have been terminated or expired or the Loans have been declared to be due and payable, all Revolving Credit Exposure of all Lenders) and (b) with
respect to all Commitments of any Lender at any time, the numerator of which shall be the sum of such Lender’s Revolving Commitment (or if such Revolving Commitments have been terminated or expired or
the Loans have been declared to be due and payable, such Lender’s Revolving Credit Exposure) and the denominator of which shall be the sum of all Lenders’ Revolving Commitments (or if such Revolving
Commitments have been terminated or expired or the Loans have been declared to be due and payable, all Revolving Credit Exposure of all Lenders funded under such Commitments).
“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. §–5390(c)(8)(D).
“QFC Credit Support” shall have the meaning provided in Section 11.19.
“Qualified Cash” shall mean cash or Permitted Investments of the Borrower, other than Specified Cash, (a) that does not appear (or would not be required to appear) as
“restricted” on a consolidated balance sheet of the Borrower and (b) that is not subject to a Lien (other than Liens of the type described in Sections 7.2(a) and (i)).
“Qualified ECP Guarantor” shall mean, in respect of any Swap Obligation, each Loan Party that has total assets exceeding $10,000,000 at the time the relevant Guaranty or
grant of the relevant security interest becomes effective with respect to such Swap Obligation or such other Loan Party as constitutes an “eligible contract participant” under the Commodity Exchange
Act or any regulations promulgated thereunder and can cause another Person to qualify as an “eligible contract participant” at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of
the Commodity Exchange Act.
“Recipient” shall mean (a) the Administrative Agent, (b) any Lender and (c) any Issuing Bank as applicable.
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“Recovery Event” shall mean any loss of, damage to or destruction of, or any condemnation or other taking for public use of, any property of the Borrower or any
Restricted Subsidiary.
“Regulation D” shall mean Regulation D of the Board of Governors of the Federal Reserve System, as the same may be in effect from time to time, and any successor
regulations.
“Regulation T” shall mean Regulation T of the Board of Governors of the Federal Reserve System, as the same may be in effect from time to time, and any successor
regulations.
“Regulation U” shall mean Regulation U of the Board of Governors of the Federal Reserve System, as the same may be in effect from time to time, and any successor
regulations.
“Regulation X” shall mean Regulation X of the Board of Governors of the Federal Reserve System, as the same may be in effect from time to time, and any successor
regulations.
“Regulation Y” shall mean Regulation Y of the Board of Governors of the Federal Reserve System, as the same may be in effect from time to time, and any successor
regulations.
“Related Parties” shall mean, with respect to any specified Person, such Person’s Affiliates and the respective managers, administrators, trustees, partners, directors,
officers, employees, agents, advisors or other representatives of such Person and such Person’s Affiliates.
“Release” shall mean any release, spill, emission, leaking, dumping, injection, pouring, deposit, disposal, discharge, dispersal, leaching or migration into the
environment (including ambient air, surface water, groundwater, land surface or subsurface strata) or within any building, structure, facility or fixture.
“Relevant Governmental Body” shall mean the Federal Reserve Board and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the
Federal Reserve Board and/or the Federal Reserve Bank of New York or any successors thereto.
“Required Lenders” shall mean, at any time, Lenders holding more than 50% of the aggregate outstanding Revolving Commitments at such time or, if the Lenders have no
Commitments outstanding, then Lenders holding more than 50% of the aggregate Revolving Credit Exposure; provided
that to the extent that any Lender is a Defaulting Lender, such Defaulting Lender and all of its Revolving Commitments and Revolving Credit Exposure shall be excluded for purposes of
determining Required Lenders.
“Resolution Authority” shall mean an EEA Resolution Authority, or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible Officer” shall mean, with respect to any Person, any of the chairman of the board, chief executive officer, chief financial officer, president, chief
accounting officer, chief legal officer, any executive vice president, senior vice president or vice president, the treasurer or the secretary or such other representative of such Person as may be
designated in writing by any one of the foregoing with the consent of the Administrative Agent; and, with respect to the financial covenants only, the chief financial officer, the chief accounting
officer or the treasurer of such Person.
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“Restricted Investment” shall mean any Investment other than an Investment permitted under Section
7.4.
“Restricted Payment” shall mean (a) any dividend or other distribution (whether in cash, securities or other property) with respect to any Capital Stock of any Person,
or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, defeasance, acquisition,
cancellation or termination of any such Capital Stock or on account of any return of capital to such Person’s stockholders, partners or members (or the equivalent Person thereof), or any option,
warrant or other right to acquire any such dividend or other distribution or payment, (b) any payment on, or with respect to, the purchase, redemption, defeasance, acquisition or retirement for
value of any Permitted Subordinated Debt (excluding any intercompany Indebtedness between or among the Borrower or any of its Restricted Subsidiaries), other than a payment of interest or principal
to the extent permitted under Section 7.13 and (c) any Restricted Investment.
“Restricted Subsidiary” shall mean any Subsidiary that is not an Unrestricted Subsidiary.
“Revolving Commitment” shall mean, with respect to each Lender, the commitment of such Lender to make Revolving Loans to the Borrower and to acquire participations in
Letters of Credit and Swingline Loans in an aggregate principal amount not exceeding the amount set forth with respect to such Lender on Schedule I, as such schedule may be amended pursuant to Section 2.23, or in the case of a Person becoming a Lender after the Closing Date, the amount of the assigned
“Revolving Commitment” as provided in the Assignment and Acceptance executed by such Person as an assignee, or the joinder executed by such Person, in each case as such commitment may subsequently
be increased or decreased pursuant to terms hereof.
“Revolving Commitment Termination Date” shall mean the earliest of (i) June 8, 2025, (ii) the date on which the Revolving Commitments are terminated pursuant to Section 2.8 and (iii) the date on which all amounts outstanding under this Agreement have been declared or have
automatically become due and payable (whether by acceleration or otherwise).
“Revolving Credit Exposure” shall mean, with respect to any Lender at any time, the sum of the outstanding principal amount of such Lender’s Revolving Loans, LC
Exposure and Swingline Exposure.
“Revolving Loan” shall mean a loan made by a Lender (other than the Swingline Lender) to the Borrower under its Revolving Commitment, which may either be a Base Rate
Loan or a Eurodollar Loan.
“S&P” shall mean Standard & Poor’s Ratings Service, or any successor to the ratings agency business thereof.
“Sanctioned Country” shall mean, at any time, a country, region or territory that is, or whose government is, the subject or target of any Sanctions.
“Sanctioned Person” shall mean, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by OFAC, the U.S. Department of
State, the United Nations Security Council, the European Union, any EU member state or Her Majesty’s Treasury of the United Kingdom, (b) any Person located, organized or resident in a Sanctioned
Country or (c) any Person controlled by any such Person.
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“Sanctions” shall mean economic or financial sanctions or trade embargoes administered or enforced from time to time by (a) the U.S. government, including those
administered by OFAC or the U.S. Department of State or (b) the United Nations Security Council, the European Union or Her Majesty’s Treasury of the United Kingdom or any other applicable
governmental authority.
“Screen Rate” shall mean the rate specified in clause (i) of the definition of Adjusted LIBOR.
“SEC” shall mean the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.
“Social Security Act” shall mean the Social Security Act of 1965 as set forth in Title 42 of the United States Code, as amended, and any successor statute thereto, as
interpreted by the rules and regulations issued thereunder, in each case as in effect from time to time. References of section of the Social Security Act shall be construed to refer to any
successor sections.
“SOFR” with respect to any day shall mean the secured overnight financing rate published for such day by the Federal Reserve Bank of New York, as the administrator of
the benchmark (or a successor administrator), on the Federal Reserve Bank of New York’s Website.
“Solvent” shall mean, with respect to any Person on a particular date, that on such date (a) the fair value of the property of such Person is greater than the total
amount of liabilities, including subordinated and contingent liabilities, of such Person; (b) the present fair saleable value of the assets of such Person is not less than the amount that will be
required to pay the probable liability of such Person on its debts and liabilities, including subordinated and contingent liabilities as they become absolute and matured; (c) such Person does not
intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay as such debts and liabilities mature; (d) such Person is not engaged in a business or
transaction, and is not about to engage in a business or transaction, for which such Person’s property would constitute an unreasonably small capital; (e) such Person is able to pay its debts and
other liabilities, contingent obligations and other commitments as they mature in the ordinary course of business and (f) such Person does not intend, in any transaction, to hinder, delay or
defraud either present or future creditors or any other person to which such Person is or will become, through such transaction, indebted. The amount of contingent liabilities (such as
litigation, guaranties and pension plan liabilities) at any time shall be computed as the amount that, in light of all the facts and circumstances existing at the time, represents the amount that
would reasonably be expected to become an actual or matured liability.
“Specified Cash” shall mean cash of the Borrower that constitutes, and Permitted Investments of the Borrower that are made with, the net cash proceeds of Indebtedness
permitted to be incurred under Section 7.1 (the “Specified Indebtedness”), that are either (a) subject to customary escrow arrangements between the Borrower and the holders of such Specified Indebtedness
prior to their use for one of the following purposes: (i) refinancing, tendering for, or otherwise redeeming or repaying Indebtedness of the Borrower or its Restricted Subsidiaries or (ii) to
finance any Permitted Acquisition that has been identified in writing to the Administrative Agent with a closing date that is not later than 365 days after the incurrence of such Specified
Indebtedness or (b) held in a segregated account of the Borrower and subject to a covenant in the documentation for such Specified Indebtedness that restricts the use of such cash or Permitted
Investments of the Borrower to the limited purpose of (i) refinancing, tendering for, or otherwise redeeming or repaying Indebtedness of the Borrower or its Restricted Subsidiaries or (ii) paying
interest on the Specified Indebtedness; provided, that if such cash or Permitted Investments no longer satisfy the conditions in this clause (b), they shall cease to constitute Specified Cash hereunder.
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“Specified Event of Default” means any Event of Default pursuant to Section
8.1(a), (b), (h) or (i).
“Specified Loan Party” shall mean each Loan Party that is, at the time on which the relevant Guarantee or grant of the relevant security interest under the
Loan Documents by such Loan Party becomes effective with respect to a Swap Obligation, a corporation, partnership, proprietorship, organization, trust or other entity that would not be an
“eligible contract participant” under the Commodity Exchange Act at such time but for the effect of Section 10.8.
“Subordinated Debt Documents” shall mean all indentures, agreements, notes, guaranties and other material agreements governing or evidencing any Permitted
Subordinated Debt and all other material documents relating thereto.
“Subsidiary” shall mean, with respect to any Person (the “parent”),
any corporation, partnership, joint venture, limited liability company, association or other entity the accounts of which would be consolidated with those of the parent in the parent’s
consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, (a) of which securities or other ownership interests representing more than
50% of the equity or more than 50% of the ordinary voting power, or in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned, controlled or
held, or (b) that is, as of such date, otherwise controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent. Unless
otherwise indicated, all references to “Subsidiary” hereunder shall mean a Subsidiary of the Borrower.
“Supported QFC” shall have the meaning provided in Section 11.19.
“Swap Obligations” shall mean with respect to any Guarantor any obligation to pay or perform under any agreement, contract or transaction that constitutes a
“swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.
“Swingline Commitment” shall mean the commitment of the Swingline Lender to make Swingline Loans in an aggregate principal amount at any time outstanding
not to exceed $15,000,000.
“Swingline Exposure” shall mean, with respect to each Lender, the principal amount of the Swingline Loans in which such Lender is legally obligated either
to make a Base Rate Loan or to purchase a participation in accordance with Section 2.4, which shall
equal such Lender’s Pro Rata Share of all outstanding Swingline Loans.
“Swingline Lender” shall mean Truist Bank in its capacity as provider of Swingline Loans, or any successor swingline lender hereunder.
“Swingline Loan” shall mean a loan made to the Borrower by the Swingline Lender under the Swingline Commitment.
“Synthetic Lease” shall mean a lease transaction under which the parties intend that (i) the lease will be treated as an “operating lease” by the lessee
pursuant to Accounting Standards Codification Sections 840-10 and 840-20, as amended and (ii) the lessee will be entitled to various tax and other benefits ordinarily available to owners (as
opposed to lessees) of like property.
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“Synthetic Lease Obligations” shall mean, with respect to any Person, the sum of (i) all remaining rental obligations of such Person as lessee under
Synthetic Leases which are attributable to principal and, without duplication, (ii) all rental and purchase price payment obligations of such Person under such Synthetic Leases assuming such
Person exercises the option to purchase the lease property at the end of the lease term.
“Taxes” shall mean all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or
other charges imposed by any Governmental Authority, including any interest, additions to tax, or penalties applicable thereto.
“Term SOFR” shall mean the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body.
“Trading with the Enemy Act” shall mean the Trading with the Enemy Act of the United States of America (50 U.S.C. App. §§ 1 et seq.), as amended and in
effect from time to time.
“TRICARE” shall mean the United States Department of Defense health care programs for active duty military, active duty service families, retirees and
their families and other beneficiaries, including TRICARE Prime and TRICARE Standard, and any successor or predecessor thereof.
“Truist” shall mean Truist Bank and its successors.
“Type”, when used in reference to a Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such Borrowing, is
determined by reference to the Adjusted LIBOR or the Base Rate.
“UK Financial Institution” shall mean 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.
“UK Resolution Authority” shall mean the Bank of England or any other public administrative authority having responsibility for the resolution of any UK
Financial Institution.
“Unadjusted Benchmark Replacement” shall mean the Benchmark Replacement excluding the Benchmark Replacement Adjustment.
“United States” or “U.S.” shall mean the United States of
America.
“Unrestricted Subsidiary” shall mean (a) any Subsidiary that is designated by the Borrower as an Unrestricted Subsidiary pursuant to a resolution of the
board of directors (or other comparable governing body) of the Borrower and (b) any Subsidiary of an Unrestricted Subsidiary, but in each case, only to the extent that such Subsidiary:
(a) has no Indebtedness other than Non-Recourse Debt;
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(b) except as permitted by Section 7.7,
is not party to any agreement, contract, arrangement or understanding with the Borrower or any Restricted Subsidiary unless the terms of any such agreement, contract, arrangement or
understanding are not less favorable in any material respect to the Borrower or such Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates
of the Borrower;
(c) is a Person with respect to which neither the Borrower nor any of its Restricted Subsidiaries has any direct or
indirect obligation to (x) subscribe for additional Capital Stock or (y) maintain or preserve such Person’s financial condition or cause such Person to achieve any specified levels of
operating results; and
(d) has not Guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Borrower
or any of its Restricted Subsidiaries.
Any Subsidiary of a Subsidiary of the Borrower designated
by the board of directors of the Borrower as an Unrestricted Subsidiary shall also be an Unrestricted Subsidiary.
“U.S. Person” shall mean any Person that is a “United States person” as defined in Section 7701(a)(30) of the Code.
“U.S. Special Resolution Regime” shall have the meaning provided in Section 11.19.
“U.S. Tax Compliance Certificate” shall have the meaning set forth in Section 2.20(g).
“Withdrawal Liability” shall mean liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
“Withholding Agent” shall mean any Loan Party and the Administrative Agent.
“Write-Down and Conversion Powers” shall mean: (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA
Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation
Schedule; and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a
liability of any UK Financial Institution, or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of
that Person or any other Person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it, or to suspend any obligation in respect of that
liability, or any of the powers under that Bail-In legislation that are related or ancillary to any of those powers.
Section 1.2. Classifications of Loans and
Borrowings. For purposes of this Agreement, Loans may be classified and referred to by Class (e.g. a “Revolving Loan”) or by Type (e.g. a “Eurodollar Loan” or “Base Rate
Loan”) or by Class and Type (e.g. “Revolving Eurodollar Loan”). Borrowings also may be classified and referred to by Class (e.g. “Revolving Borrowing”) or by Type (e.g. “Eurodollar
Borrowing”) or by Class and Type (e.g. “Revolving Eurodollar Borrowing”).
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Section 1.3. Accounting Terms and Determination.
(a) Unless otherwise defined or specified herein, all accounting terms used herein shall be interpreted, all accounting
determinations hereunder shall be made, and all financial statements required to be delivered hereunder shall be prepared, in accordance with GAAP as in effect from time to time, applied
on a basis consistent with the most recent audited consolidated financial statement of the Borrower delivered pursuant to Section 5.1(a); provided, that if the Borrower notifies the
Administrative Agent that the Borrower wishes to amend any covenant in Article VI to eliminate
the effect of any change in GAAP on the operation of such covenant (or if the Administrative Agent notifies the Borrower that the Required Lenders wish to amend Article VI for such purpose), then the Borrower’s compliance with such covenant shall be determined on the basis of
GAAP in effect immediately before the relevant change in GAAP became effective, until either such notice is withdrawn or such covenant is amended in a manner satisfactory to the Borrower
and the Required Lenders.
(b) Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein
shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to any election under Accounting Standards Codification Section
825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of any Loan Party or any Subsidiary of any Loan
Party at "fair value", as defined therein. Without limiting the foregoing, leases
shall continue to be classified and accounted for on a basis consistent with that reflected in the Audited Financial Statements for all purposes of this Agreement, notwithstanding any
change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above.
(c) Notwithstanding the above, the parties hereto acknowledge and agree that all calculations of the financial
covenants in Article VI (including for purposes of determining the Applicable Rate and any
transaction that by the terms of this Agreement requires that any financial covenant contained in Article VI be calculated on a Pro Forma Basis) shall be made on a Pro Forma Basis with
respect to any Asset Sale, Recovery Event, an increase in the Revolving Commitments and/or establishment of an Incremental Term Loan, or Acquisition occurring during such period.
Section 1.4. Terms Generally. The
definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The word “will” shall be
construed to have the same meaning and effect as the word “shall”. In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and
including” and the word “to” means “to but excluding”. Unless the context requires otherwise (i) any definition of or reference to any agreement, instrument or other document herein
shall be construed as referring to such agreement, instrument or other document as it was originally executed or as it may from time to time be amended, restated, supplemented or
otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (ii) any reference herein to any Person shall be construed to include
such Person’s successors and permitted assigns, (iii) the words “hereof”, “herein” and “hereunder” and words of similar import shall be construed to refer to this Agreement as a whole
and not to any particular provision hereof, (iv) all references to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles, Sections, Exhibits and Schedules to
this Agreement, (v) all references to a specific time shall be construed to refer to the time in the city and state of the Administrative Agent’s principal office, unless otherwise
indicated and (vi) any reference herein to a merger, transfer, consolidation, amalgamation, consolidation, assignment, sale, disposition or transfer, or similar term, shall be deemed to
apply to a division of or by a limited liability company, or an allocation of assets to a series of a limited liability company (or the unwinding of such a division or allocation), as if
it were a merger, transfer, consolidation, amalgamation, consolidation, assignment, sale, disposition or transfer, or similar term, as applicable, to, of or with a separate Person. Any
limited liability company resulting from a division shall constitute a separate Person hereunder (and each division of any limited liability company that is a Subsidiary, joint venture
or any other like term shall also constitute such a Person or entity).
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Section 1.5. Letter of Credit Amounts.
Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit in effect at such time; provided, however,
that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount
thereof, the amount of such Letter of Credit shall be deemed to be the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such
maximum stated amount is in effect at such time.
Section 1.6. Times of Day. Unless
otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).
Section 1.7. LIBOR. None of the Administrative Agent, the Lenders or the Issuing Lender warrants or
accepts responsibility for, and shall not have any liability with respect to, the administration, submission or any other matter related to the rates in the definition of “Adjusted
LIBOR”.
Section 1.8. Limited Condition Acquisitions.
Notwithstanding anything to the contrary herein, to the extent that the terms of this Agreement require (a) compliance with any basket, financial ratio or test (including any
Consolidated Net Leverage Ratio test or any Consolidated Interest Coverage Ratio test), (b) the absence of a Default or an Event of Default, or (c) a determination as to whether the
representations and warranties contained in this Agreement or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or
therewith, shall be true and correct in all material respects (without duplication of any materiality qualifiers), in each case in connection with the consummation of a Limited
Condition Acquisition and any related incurrence of an Incremental Term Loan, the determination of whether the relevant condition is satisfied may be made, at the election of the
Borrower, (A) on the date of the execution of the definitive agreement with respect to such Limited Condition Acquisition (such date, the “LCA Test Date”), or (B) on the date on which such Limited Condition Acquisition is consummated, in either case, after giving effect to
the relevant Limited Condition Acquisition and any related incurrence of an Incremental Term Loan, on a Pro Forma Basis; provided, that, notwithstanding the foregoing, in
connection with any Limited Condition Acquisition: (1) the condition set forth in clause (b)(i)
of the definition of “Permitted Acquisition” shall be satisfied if (x) no Default or Event of Default shall have occurred and be continuing as of the applicable LCA Test Date, and (y)
no Specified Event of Default shall have occurred and be continuing at the time of consummation of such Limited Condition Acquisition; (2) if the proceeds of an Incremental Term Loan
are being used to finance such Limited Condition Acquisition, then (x) the conditions set forth in clause (b)(v) of the definition “Permitted Acquisition”), Section 2.23(d) and Section 3.2(b) shall be required to be satisfied at the time of closing of the Limited Condition
Acquisition and funding of such Incremental Term Loan but, if the lenders providing such Incremental Term Loan so agree, the representations and warranties which must be accurate at
the time of closing of the Limited Condition Acquisition and funding of such Incremental Term Loan may be
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limited to customary “specified representations” and such other
representations and warranties as may be required by the lenders providing such Incremental Term Loan, and (y) the conditions set forth in Section 2.23(c) shall, if and to the extent the lenders providing such Incremental Term Loan so agree, be satisfied if (I) no Default or
Event of Default shall have occurred and be continuing as of the applicable LCA Test Date, and (II) no Specified Event of Default shall have occurred and be continuing at the time of the
funding of such Incremental Term Loan in connection with the consummation of such Limited Condition Acquisition; and (3) such Limited Condition Acquisition and the related Incremental
Term Loan to be incurred in connection therewith and the use of proceeds thereof shall be deemed incurred and/or applied at the LCA Test Date (until such time as such Incremental Term
Loan is actually incurred or the applicable definitive agreement is terminated without actually consummating the applicable Limited Condition Acquisition) and outstanding thereafter for
purposes of determining compliance on a Pro Forma Basis (other than for purposes of determining compliance on a Pro Forma Basis in connection with the making of any Restricted Payment or
the prepayment of any Indebtedness) with any financial ratio or test (including any Consolidated Net Leverage Ratio test or any Consolidated Interest Coverage Ratio test, or any
calculation of the financial covenants set forth in Article VI) (it being understood and agreed
that for purposes of determining compliance on a Pro Forma Basis in connection with the making of any Restricted Payment or prepayment of any Indebtedness, the Borrower shall demonstrate
compliance with the applicable test both after giving effect to the applicable Limited Condition Acquisition and assuming that such transaction had not occurred). For the avoidance of
doubt, if any of such ratios or amounts for which compliance was determined or tested as of the LCA Test Date are thereafter exceeded or otherwise failed to have been complied with as a
result of fluctuations in such ratio or amount (including due to fluctuations in Consolidated Adjusted EBITDA), at or prior to the consummation of the relevant Limited Condition
Acquisition, such ratios or amounts will not be deemed to have been exceeded or failed to be complied with as a result of such fluctuations solely for purposes of determining whether the
relevant Limited Condition Acquisition is permitted to be consummated or taken. Except as set forth in clause
(2) in the proviso to the first sentence in this Section 1.8 in connection with
the use of the proceeds of an Incremental Term Loan to finance a Limited Condition Acquisition (and, in the case of such clause (2), only if and to the extent the lenders providing such Incremental Term Loan so agree as provided in such clause (2)), it is understood and agreed that this Section 1.8 shall not limit the conditions set forth in Section 3.2
with respect to any proposed Borrowing, in connection with a Limited Condition Acquisition or otherwise.
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENTS
AMOUNT AND TERMS OF THE COMMITMENTS
Section 2.1. General Description of Facilities.
Subject to and upon the terms and conditions herein set forth, (i) the Lenders hereby establish in favor of the Borrower a revolving credit facility pursuant to which each Lender
severally agrees (to the extent of such Lender’s Revolving Commitment) to make Revolving Loans to the Borrower in accordance with Section 2.2, (ii) the Issuing Bank may issue Letters of Credit in accordance with Section 2.22, (iii) the Swingline Lender may make Swingline Loans in accordance with Section 2.4 and (iv) each Lender agrees to purchase a participation interest in the Letters of Credit and the Swingline Loans pursuant
to the terms and conditions hereof; provided, that in no event shall the aggregate principal
amount of all outstanding Revolving Loans, Swingline Loans and outstanding LC Exposure exceed the Aggregate Revolving Commitments in effect from time to time.
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Section 2.2. Revolving Loans.
Subject to the terms and conditions set forth herein, each Lender severally agrees to make Revolving Loans, ratably in proportion to its Pro Rata Share of the Revolving Commitments,
to the Borrower, from time to time during the Availability Period, in an
aggregate principal amount outstanding at any time that will not result in (a) such Lender’s Revolving Credit Exposure exceeding such Lender’s Revolving Commitment or (b) the
aggregate Revolving Credit Exposures of all Lenders exceeding the Aggregate Revolving Commitments. During the Availability Period, the Borrower shall be entitled to borrow, prepay
and reborrow Revolving Loans in accordance with the terms and conditions of this Agreement; provided,
that the Borrower may not borrow or reborrow should there exist a Default or Event of Default.
Section 2.3. Procedure for Revolving
Borrowings. The Borrower shall give the Administrative Agent written notice (or telephonic notice promptly confirmed in writing) of each Revolving Borrowing
substantially in the form of Exhibit 2.3 (a “Notice of Revolving Borrowing”) (x) prior to 11:00 a.m. on the requested date of each Base Rate Borrowing and (y) prior to 11:00
a.m. three (3) Business Days prior to the requested date of each Eurodollar Borrowing. Each Notice of Revolving Borrowing shall be irrevocable and shall specify: (i) the aggregate principal amount of such Borrowing, (ii) the date of such Borrowing
(which shall be a Business Day), (iii) the Type of such Revolving Loan comprising such Borrowing and (iv) in the case of a Eurodollar Borrowing, the duration of the initial Interest
Period applicable thereto (subject to the provisions of the definition of Interest Period). Each Revolving Borrowing shall consist of Base Rate Loans or Eurodollar Loans or a combination thereof, as the Borrower may request. The aggregate principal amount
of each Eurodollar Borrowing shall be not less than $5,000,000 or a larger multiple of $1,000,000, and the aggregate principal amount of each Base Rate Borrowing shall not be less
than $1,000,000 or a larger multiple of $100,000; provided, that Base Rate Loans made
pursuant to Section 2.4 or Section 2.22(d) may be made in lesser amounts as provided therein. At no time shall the total number of Eurodollar Borrowings outstanding at any time
exceed six. Promptly following the receipt of a Notice of Revolving Borrowing in accordance herewith, the Administrative Agent shall advise each Lender of the details thereof and
the amount of such Lender’s Revolving Loan to be made as part of the requested Revolving Borrowing.
Section 2.4. Swingline Commitment.
(a) Subject to the terms and conditions set forth herein, the Swingline Lender may, in its sole discretion, make
Swingline Loans to the Borrower, from time to time during the Availability Period, in an aggregate principal amount outstanding at any time not to exceed the lesser of (i) the
Swingline Commitment then in effect and (ii) the difference between the Aggregate Revolving Commitments and the aggregate Revolving Credit Exposures of all Lenders; provided, that the Swingline Lender shall not be required to make a Swingline Loan to refinance
an outstanding Swingline Loan. The Borrower shall be entitled to borrow, repay and reborrow Swingline Loans in accordance with the terms and conditions of this Agreement.
(b) The Borrower shall give the Administrative Agent written notice (or telephonic notice promptly confirmed in
writing) of each Swingline Borrowing substantially in the form of Exhibit 2.4 attached
hereto (“Notice of Swingline Borrowing”) prior to 10:00 a.m. on the requested date of each
Swingline Borrowing. Each Notice of Swingline Borrowing shall be irrevocable and shall specify: (i) the principal amount of such Swingline Loan, (ii) the date of such Swingline Loan
(which shall be a Business Day) and (iii) the account of the Borrower to which the proceeds of such Swingline Loan should be credited. The Administrative Agent will promptly advise
the Swingline Lender of each Notice of Swingline Borrowing. The aggregate principal amount of each Swingline Loan shall not be less than $100,000 or a larger multiple of $50,000, or such other minimum amounts agreed to by the Swingline Lender and the
Borrower. The Swingline Lender will make the proceeds of each Swingline Loan available to the Borrower in Dollars in immediately available funds at the account specified by the
Borrower in the applicable Notice of Swingline Borrowing not later than 1:00 p.m. on the requested date of such Swingline Loan.
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(c) The Swingline Lender, at any time and from time to time in its sole discretion, may, on behalf of the
Borrower (which hereby irrevocably authorizes and directs the Swingline Lender to act on its behalf), give a Notice of Revolving Borrowing to the Administrative Agent requesting
the Lenders (including the Swingline Lender) to make Base Rate Loans in an amount equal to the unpaid principal amount of any Swingline Loan. Each Lender will make the proceeds of
its Base Rate Loan included in such Borrowing available to the Administrative Agent for the account of the Swingline Lender in accordance with Section 2.6, and such proceeds will be used solely for the repayment of such Swingline Loan.
(d) If for any reason a Base Rate Borrowing may not be (as determined in the sole discretion of the
Administrative Agent), or is not, made in accordance with the foregoing provisions, then each Lender (other than the Swingline Lender) shall purchase an undivided participating
interest in such Swingline Loan in an amount equal to its Pro Rata Share thereof on the date that such Base Rate Borrowing should have occurred. On the date of such required
purchase, each Lender shall promptly transfer, in immediately available funds, the amount of its participating interest to the Administrative Agent for the account of the Swingline
Lender.
(e) Each Lender’s obligation to make a Base Rate Loan pursuant to Section 2.4(c) or to purchase the participating interests pursuant to Section 2.4(d) shall be absolute and unconditional and shall not be affected by any circumstance, including without limitation (i) any
setoff, counterclaim, recoupment, defense or other right that such Lender or any other Person may have or claim against the Swingline Lender, the Borrower or any other Person for
any reason whatsoever, (ii) the existence of a Default or an Event of Default or the termination of any Lender’s Revolving Commitment, (iii) the existence (or alleged existence) of
any event or condition which has had or could reasonably be expected to have a Material Adverse Effect, (iv) any breach of this Agreement or any other Loan Document by any Loan
Party, the Administrative Agent or any Lender or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. If such amount is not
in fact made available to the Swingline Lender by any Lender, the Swingline Lender shall be entitled to recover such amount on demand from such Lender, together with accrued
interest thereon for each day from the date of demand thereof (i) at the Federal Funds Rate until the second Business Day after such demand and (ii) at the Base Rate at all times
thereafter. Until such time as such Lender makes its required payment, the Swingline Lender shall be deemed to continue to have outstanding Swingline Loans in the amount of the
unpaid participation for all purposes of the Loan Documents. In addition, such Lender shall be deemed to have assigned any and all payments made of principal and interest on its
Loans and any other amounts due to it hereunder, to the Swingline Lender to fund the amount of such Lender’s participation interest in such Swingline Loans that such Lender failed
to fund pursuant to this Section 2.4, until such amount has been purchased in full.
Section 2.5. Reserved.
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Section 2.6. Funding of Borrowings.
(a) Each Lender will make available each Loan to be made by it hereunder on the proposed date thereof by wire
transfer in immediately available funds by 2:00 p.m. to the Administrative Agent at the Payment Office; provided, that the Swingline Loans will be made as set forth in Section
2.4. The Administrative Agent will make such Loans available to the Borrower by promptly crediting the amounts that it receives, in like funds by the close of
business on such proposed date, to an account maintained by the Borrower with the Administrative Agent or at the Borrower’s option, by effecting a wire transfer of such amounts
to an account designated by the Borrower to the Administrative Agent.
(b) Unless the Administrative Agent shall have been notified by any Lender prior to 1:00 p.m. on the date of a
Borrowing in which such Lender is to participate that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative
Agent may assume that such Lender has made such amount available to the Administrative Agent on such date, and the Administrative Agent, in reliance on such assumption, may make
available to the Borrower on such date a corresponding amount. If such corresponding amount is not in fact made available to the Administrative Agent by such Lender on the date
of such Borrowing, the Administrative Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest at the Federal Funds Rate
until the second Business Day after such demand and thereafter at the Base Rate. If such Lender does not pay such corresponding amount forthwith upon the Administrative Agent’s
demand therefor, the Administrative Agent shall promptly notify the Borrower, and the Borrower shall immediately pay such corresponding amount to the Administrative Agent
together with interest at the rate specified for such Borrowing. Nothing in this subsection shall be deemed to relieve any Lender from its obligation to fund its Pro Rata Share
of any Borrowing hereunder or to prejudice any rights which the Borrower may have against any Lender as a result of any default by such Lender hereunder.
(c) All Revolving Borrowings shall be made by the Lenders on the basis of their respective Pro Rata Shares. No
Lender shall be responsible for any default by any other Lender in its obligations hereunder, and each Lender shall be obligated to make its Loans provided to be made by it
hereunder, regardless of the failure of any other Lender to make its Loans hereunder.
Section 2.7. Interest Elections.
(a) Each Borrowing initially shall be of the Type specified in the applicable Notice of Borrowing. Thereafter,
the Borrower may elect to convert such Borrowing into a different Type or to continue such Borrowing, all as provided in this Section 2.7. The Borrower may elect different options with respect to different portions of the affected Borrowing, in which case each
such portion shall be allocated ratably among the Lenders holding Loans comprising such Borrowing, and the Loans comprising each such portion shall be considered a separate
Borrowing.
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(b) To make an election pursuant to this Section 2.7, the Borrower shall give the Administrative Agent prior written notice (or telephonic notice promptly confirmed in writing) of each
Borrowing that is to be converted or continued, as the case may be, substantially in the form of Exhibit
2.7 attached hereto (a “Notice of Conversion/Continuation”) (x) prior
to 10:00 a.m. one (1) Business Day prior to the requested date of a conversion into a Base Rate Borrowing and (y) prior to 11:00 a.m. three (3) Business Days prior to a
continuation of or conversion into a Eurodollar Borrowing. Each such Notice of Conversion/Continuation shall be irrevocable and shall specify (i) the Borrowing to which such
Notice of Conversion/Continuation applies and if different options are being elected with respect to different portions thereof, the portions thereof that are to be allocated
to each resulting Borrowing (in which case the information to be specified pursuant to clauses (iii) and (iv) shall be specified for each resulting Borrowing); (ii) the
effective date of the election made pursuant to such Notice of Conversion/Continuation, which shall be a Business Day; (iii) whether the resulting Borrowing is to be a Base
Rate Borrowing or a Eurodollar Borrowing; and (iv) if the resulting Borrowing is to be a Eurodollar Borrowing, the Interest Period applicable thereto after giving effect to
such election, which shall be a period contemplated by the definition of “Interest Period”. If any such Notice of Conversion/Continuation requests a Eurodollar Borrowing but
does not specify an Interest Period, the Borrower shall be deemed to have selected an Interest Period of one month. The principal amount of any resulting Borrowing shall
satisfy the minimum borrowing amount for Eurodollar Borrowings and Base Rate Borrowings set forth in Section 2.3.
(c) If, on the expiration of any Interest Period in respect of any Eurodollar Borrowing, the Borrower shall
have failed to deliver a Notice of Conversion/Continuation, then, unless such Borrowing is repaid as provided herein, the Borrower shall be deemed to have elected to convert
such Borrowing to a Base Rate Borrowing. No Borrowing may be converted into, or continued as, a Eurodollar Borrowing if a Default or an Event of Default exists, unless the
Administrative Agent and each of the Lenders shall have otherwise consented in writing. No conversion of any Eurodollar Loans shall be permitted except on the last day of the
Interest Period in respect thereof.
(d) Upon receipt of any Notice of Conversion/Continuation, the Administrative Agent shall promptly notify
each Lender of the details thereof and of such Lender’s portion of each resulting Borrowing.
Section 2.8. Optional Reduction and
Termination of Commitments.
(a) Unless previously terminated, all Revolving Commitments, Swingline Commitments and LC Commitments shall
terminate on the Revolving Commitment Termination Date.
(b) Upon at least three (3) Business Days’ prior written notice (or telephonic notice promptly confirmed in
writing) to the Administrative Agent (which notice shall be irrevocable), the Borrower may reduce the Aggregate Revolving Commitments in part or in whole; provided, that (i) any partial reduction shall apply to reduce proportionately and
permanently the Revolving Commitment of each Lender, (ii) any partial reduction pursuant to this Section
2.8 shall be in an amount of at least $5,000,000 and any larger multiple of $1,000,000, and (iii) no such reduction shall be permitted which would reduce the
Aggregate Revolving Commitments to an amount less than the aggregate outstanding Revolving Credit Exposure of all Lenders. Any such reduction in the Aggregate Revolving
Commitments below the principal amount of the Swingline Commitment and the LC Commitment shall result in a dollar-for-dollar reduction in the Swingline Commitment and the LC
Commitment.
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Section 2.9. Repayment of Loans.
The outstanding principal amount of all Revolving Loans and Swingline Loans shall be due and payable (together with accrued and unpaid interest thereon) on the Revolving
Commitment Termination Date.
Section 2.10. Evidence of
Indebtedness.
(a) Each Lender shall maintain in accordance with its usual practice appropriate records evidencing the
Indebtedness of the Borrower to such Lender resulting from each Loan made by such Lender from time to time, including the amounts of principal and interest payable thereon
and paid to such Lender from time to time under this Agreement. The Administrative Agent shall maintain appropriate records in which shall
be recorded (i) the Commitments of each Lender, (ii) the amount of each Loan made hereunder by each Lender, the Class and Type thereof and, in the case of each Eurodollar
Loan, the Interest Period applicable thereto, (iii) the date of each continuation thereof pursuant to Section 2.7, (iv) the date of each conversion of all or a portion thereof to another Type pursuant to Section 2.7, (v) the date and amount of any principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder in respect of such Loans and (vi) both the date and amount of any sum received by the Administrative Agent hereunder from the Borrower in
respect of the Loans and each Lender’s Pro Rata Share thereof. The entries made in such records shall be prima facie evidence of the existence and amounts of the obligations of the Borrower therein recorded; provided, that the failure or delay of any Lender or the Administrative Agent in maintaining or making
entries into any such record or any error therein shall not in any manner affect the obligation of the Borrower to repay the Loans (both principal and unpaid accrued
interest) of such Lender in accordance with the terms of this Agreement.
(b) This Agreement evidences the obligation of the Borrower to repay the Loans and is being executed as a
“noteless” credit agreement. However, at the request of any Lender (including the Swingline Lender) at any time, the Borrower agrees that it will prepare, execute and
deliver to such Lender a promissory note payable to the order of such Lender in the form of Exhibit
2.10 (a “Note”). Thereafter, the Loans evidenced by such promissory
note and interest thereon shall at all times (including after assignment permitted hereunder) be represented by one or more promissory notes in such form payable to the order
of the payee named therein (or, if such promissory note is a registered note, to such payee and its registered assigns).
Section 2.11. Optional Prepayments.
The Borrower shall have the right at any time and from time to time to prepay any Borrowing, in whole or in part, without premium or penalty, by giving irrevocable written
notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent no later than (i) in the case of prepayment of any Eurodollar Borrowing, 11:00 a.m.
not less than three (3) Business Days prior to any such prepayment, (ii) in the case of any prepayment of any Base Rate Borrowing, 11:00 a.m. not less than one Business Day
prior to the date of such prepayment, and (iii) in the case of Swingline Borrowings, 11:00 a.m. on the date of such prepayment. Each such notice shall be irrevocable and
shall specify the proposed date of such prepayment and the principal amount of each Borrowing or portion thereof to be prepaid. Upon receipt of any such notice, the
Administrative Agent shall promptly notify each affected Lender of the contents thereof and of such Lender’s Pro Rata Share of any such prepayment. If such notice is given,
the aggregate amount specified in such notice shall be due and payable on the date designated in such notice, together with accrued interest to such date on the amount so
prepaid in accordance with Section 2.13(d); provided, that if a Eurodollar Borrowing is prepaid on a date other than the last day of an Interest Period
applicable thereto, the Borrower shall also pay all amounts required pursuant to Section 2.19.
Each partial prepayment of any Loan (other than a Swingline Loan) shall be in an amount that would be permitted in the case of an advance of a Revolving Borrowing of the same
Type pursuant to Section 2.3 or in the case of a Swingline Loan pursuant to Section 2.4. Each prepayment of a Revolving Borrowing shall be applied ratably to the
Loans comprising such Revolving Borrowing.
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Section 2.12. Mandatory Prepayments.
If at any time the Revolving Credit Exposure of all Lenders exceeds the Aggregate Revolving Commitments, as reduced pursuant to Section 2.8 or otherwise, the Borrower shall immediately repay Swingline Loans and Revolving Loans in an amount equal to
such excess, together with all accrued and unpaid interest on such excess amount and any amounts due under Section 2.19. Each prepayment shall be applied first to the Swingline Loans to the full extent thereof, second to the Base Rate Loans to the
full extent thereof, and finally to Eurodollar Loans to the full extent thereof. If after giving effect to prepayment of all Swingline Loans and Revolving Loans, the
Revolving Credit Exposure of all Lenders exceeds the Aggregate Revolving Commitments, the Borrower shall Cash Collateralize its reimbursement obligations with respect to
all Letters of Credit in an amount equal to such excess plus any accrued and unpaid fees thereon.
Section 2.13. Interest on Loans.
(a)
The Borrower shall pay interest on (i) each Base Rate Loan at the Base Rate plus the Applicable Margin in effect from time to time and (ii) each
Eurodollar Loan at the Adjusted LIBOR for the applicable Interest Period in effect for such Loan plus the Applicable Margin in effect from time to time.
(b)
The Borrower shall pay interest on each Swingline Loan at the Base Rate plus the Applicable Margin in effect from time to time.
(i)
Notwithstanding clauses (a) and (b) above, if an Event of Default has
occurred and is continuing, at the option of the Required Lenders, or automatically in the case of an Event of Default under Sections 8.1(a), (h) or (i), the Borrower shall pay interest (“Default Interest”) with respect to all Eurodollar Loans at the rate per annum equal to two percent (2.00%) above the
otherwise applicable interest rate for such Eurodollar Loans for the then-current Interest Period until the last day of such Interest Period, and thereafter, and with
respect to all Base Rate Loans and all other Obligations hereunder (other than Loans), at the rate per annum equal to two percent (2.00%) above the otherwise applicable
interest rate for Base Rate Loans.
(ii)
Interest on the principal amount of all Loans shall accrue from and including the date
such Loans are made to but excluding the date of any repayment thereof. Interest on all outstanding Base Rate Loans and Swingline Loans shall be payable quarterly in arrears on the last day of each March, June, September and December
and on the Revolving Commitment Termination Date. Interest on all outstanding Eurodollar Loans shall be payable on the last day of each Interest Period applicable thereto,
and, in the case of any Eurodollar Loans having an Interest Period in excess of three months, on each day which occurs every three months after the initial date of such
Interest Period, and on the Revolving Commitment Termination Date. Interest on any Loan which is converted into a Loan of another Type or which is repaid or prepaid shall
be payable on the date of such conversion or on the date of any such repayment or prepayment (on the amount repaid or prepaid) thereof. All Default Interest shall be
payable on demand.
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(iii)
The Administrative Agent shall determine each interest rate applicable to the Loans
hereunder and shall promptly notify the Borrower and the Lenders of such rate in writing (or by telephone, promptly confirmed in writing). Any such determination shall
be conclusive and binding for all purposes, absent manifest error.
Section 2.14. Fees.
(a)
The Borrower shall pay to the Administrative Agent for its own account fees in the
amounts and at the times previously agreed upon in writing by the Borrower and the Administrative Agent.
(b)
The Borrower agrees to pay to the Administrative Agent for the account of each Lender a
commitment fee (the “Commitment Fee”), which shall accrue at the Applicable
Margin on the daily amount of the unused Revolving Commitment of such Lender during the Availability Period. For purposes of computing the Commitment Fee with respect to the Revolving Commitments, the Revolving Commitment of each
Lender shall be deemed used to the extent of the outstanding Revolving Loans and LC Exposure, but not Swingline Exposure, of such Lender.
(c)
The Borrower agrees to pay (i) to the Administrative Agent, for the account of each
Lender, a letter of credit fee with respect to its participation in each Letter of Credit (the “Letter of Credit Fee”), which shall accrue at a rate per annum equal to the Applicable Margin then in effect on the average daily amount of such
Lender’s LC Exposure attributable to such Letter of Credit during the period from and including the date of issuance of such Letter of Credit to but excluding the date on
which such Letter of Credit expires or is drawn in full (such Letter of Credit Fee shall continue to accrue on any LC Exposure that remains outstanding after the
Revolving Commitment Termination Date) and (ii) to the Issuing Bank for its own account a fronting fee, which shall accrue at the rate set forth in the Fee Letter on the
average daily amount of the LC Exposure during the Availability Period (or until the date that such Letter of Credit is irrevocably cancelled, whichever is later), as
well as the Issuing Bank’s standard fees with respect to issuance, amendment, renewal or extension of any Letter of Credit or processing of drawings thereunder.
Notwithstanding the foregoing, if the Default Interest has been imposed pursuant to Section
2.13(c), the rate per annum used to calculate the letter of credit fee pursuant to clause (i) above shall automatically be increased by two percent (2.00%).
(d)
The Borrower shall pay on the Closing Date to the Administrative Agent and its
affiliates all fees in the Fee Letter that are due and payable on the Closing Date. The Borrower shall pay on the Closing Date to the Lenders all upfront fees previously
agreed in writing.
(e)
Accrued fees under paragraphs (b) and (c) above shall be payable quarterly in arrears on
the last day of each March, June, September and December, commencing on the first such date to occur after the Closing Date and on the Revolving Commitment Termination
Date (and if later, the date the Loans and LC Exposure shall be repaid in their entirety); provided further, that any such fees accruing after the Revolving Commitment Termination
Date shall be payable on demand.
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(f)
Anything herein to the contrary notwithstanding, during such period as a Lender is a
Defaulting Lender, such Defaulting Lender will not be entitled to Commitment Fees during such period pursuant to Section 2.14(b) or Letter of Credit Fees accruing during such period pursuant to Section 2.14(c) (without prejudice to the rights of the Lenders other than Defaulting Lenders in respect of such
fees), provided that (a) to the extent that a portion of the LC Exposure of
such Defaulting Lender is reallocated to the Non-Defaulting Lenders pursuant to Section
2.26, such fees that would have accrued for the benefit of such Defaulting Lender will instead accrue for the benefit of and be payable to such
Non-Defaulting Lenders, pro rata in accordance with their respective Revolving Commitments and (b) to the extent any portion of such LC Exposure
cannot be so reallocated, such fees will instead accrue for the benefit of and be payable to the Issuing Bank. The pro rata payment provisions of Section 2.21 shall automatically be deemed adjusted to reflect the provisions of
this subsection (f).
Section 2.15. Computation of
Interest and Fees.
All computations of interest and fees
hereunder shall be computed on the basis of a year of 360 days and paid for the actual number of days elapsed (including the first day but excluding the last day). Each
determination by the Administrative Agent of an interest rate or fee hereunder shall be made in good faith and, except for manifest error, shall be final, conclusive and
binding for all purposes.
Section 2.16. Inability to
Determine Interest Rates.
(a)
If prior to the commencement of any Interest Period for any Eurodollar Borrowing,
(i)
the Administrative Agent shall have determined (which determination shall be
conclusive and binding upon the Borrower absent manifest error) that, by reason of circumstances affecting the relevant interbank market, adequate means do not exist
for ascertaining the Adjusted LIBOR (including, without limitation, because the Screen Rate is not available or published on a current basis) for such Interest Period,
provided that no Benchmark Transition Event or Early Opt-In Election shall have occurred at such time or for such Interest Period, or
(ii)
the Administrative Agent shall have received notice from the Required Lenders that the
Adjusted LIBOR does not adequately and fairly reflect the cost to such Lenders (or Lender, as the case may be) of making, funding or maintaining their (or its, as the
case may be) Eurodollar Loans for such Interest Period,
the Administrative Agent shall give
written notice (or telephonic notice, promptly confirmed in writing) to the Borrower and to the Lenders as soon as practicable thereafter. Until the Administrative Agent
shall notify the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (A) the obligations of the Lenders to make Eurodollar Loans
or to continue or convert outstanding Loans as or into Eurodollar Loans shall be suspended and (B) all such affected Loans shall be converted into Base Rate Loans on the
last day of the then current Interest Period applicable thereto unless the Borrower prepays such Loans in accordance with this Agreement. Unless the Borrower notifies
the Administrative Agent at least one Business Day before the date of any Eurodollar Borrowing for which a Notice of Revolving Borrowing or Notice of
Conversion/Continuation has previously been given that it elects not to borrow on such date, then such Revolving Borrowing shall be made as a Base Rate Borrowing.
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(b)
Notwithstanding anything to the contrary herein or in any other Loan Document, upon
the occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, the Administrative Agent and the Borrower may amend this Agreement to
replace the Screen Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. on the fifth
(5th) Business Day after the Administrative Agent has posted such proposed amendment to all Lenders and the Borrower so long as the Administrative Agent has not
received, by such time, written notice of objection to such amendment from Lenders comprising the Required Lenders. Any such amendment with respect to an Early Opt-in
Election will become effective on the date that Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required
Lenders accept such amendment. No replacement of the Screen Rate with a Benchmark Replacement pursuant to these provisions will occur prior to the applicable
Benchmark Transition Start Date.
(c)
In connection with the implementation of a Benchmark Replacement, the Administrative
Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan
Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to
this Agreement.
(d)
The Administrative Agent will promptly notify the Borrower and the Lenders of (i)
any occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date and Benchmark Transition Start
Date, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes and (iv) the commencement or
conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or Lenders pursuant to this Section 2.16(b)-(e), including any determination with respect to a tenor, rate
or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action, will be conclusive
and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party hereto, except, in each case, as expressly
required pursuant to this Section 2.16(b)-(e).
(e)
Upon the Borrower’s receipt of notice of the commencement of a Benchmark
Unavailability Period, the Borrower may revoke any request for a Eurodollar Borrowing of, conversion to or continuation of Eurodollar Loans to be made, converted or
continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request into a request for a Borrowing
of or conversion to Base Rate Loans. During any Benchmark Unavailability Period, the component of Base Rate based upon the Adjusted LIBO Rate will not be used in any
determination of Base Rate.
Section 2.17. Illegality.
If any Change in Law shall make it unlawful or impossible for any Lender to perform any of its obligations hereunder or to make, maintain or fund any Eurodollar Loan
and such Lender shall so notify the Administrative Agent, the Administrative Agent shall promptly give notice thereof to the Borrower and the other Lenders, whereupon
until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of such
Lender to make Eurodollar Loans, or to continue or convert outstanding Loans as or into Eurodollar Loans, shall be suspended. In the case of the making of a
Eurodollar Borrowing, such Lender’s Loan shall be made as a Base Rate Loan as part of the same Borrowing and, with respect to Eurodollar Loans, for the same Interest