FIRST AMENDMENT TO CREDIT AGREEMENT
Exhibit 10.01
Execution Version
FIRST AMENDMENT TO CREDIT AGREEMENT
This FIRST AMENDMENT TO CREDIT AGREEMENT, dated as of December 5, 2022 (this “Amendment”), is entered into by and among Roller Bearing Company of America, Inc., a Delaware corporation (“Borrower”), RBC Bearings Incorporated, a Delaware corporation (“Holdings”), Xxxxx Fargo Bank, National Association, as administrative agent (in such respective capacity, the “Administrative Agent”) and the Lenders party hereto. Capitalized terms used and not otherwise defined herein shall have the meanings assigned to them in the Amended Credit Agreement (as defined below).
RECITALS
A. Reference is made to that certain Credit Agreement, dated as of November 1, 2021, by and among the Borrower, Holdings, the Administrative Agent, the lending institutions parties thereto and the other agents and entities party thereto (as amended, restated, amended and restated, supplemented or otherwise modified from time to time prior to the date hereof, the “Existing Credit Agreement”).
B. Pursuant to Section 13.1 of the Existing Credit Agreement, the Existing Credit Agreement may be amended in writing signed by the Borrower, Holdings, the Administrative Agent and the requisite Lenders.
C. The Borrower, the Administrative Agent and each of the Lenders party hereto (who collectively constitute 100% of the Lenders under the Existing Credit Agreement immediately prior to the Effective Date) wish to, and hereby agree to, amend certain provisions of the Existing Credit Agreement as provided in Section 1 hereof.
NOW THEREFORE, in consideration of the promises and covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:
SECTION 1. Amendments to Existing Credit Agreement. Effective as of the Effective Date (as defined below):
(a) the Existing
Credit Agreement is hereby amended in the form of the Credit Agreement set forth in Exhibit A hereto (the “Amended
Credit Agreement”) by (i) deleting the text therein that is reflected in strike-through font (indicated textually in the
same manner as the following example: stricken text) and (ii) inserting the text therein
that is reflected in double underlined font (indicated textually in the same manner as the following example: double-underlined
text), in each case, in the place where such text appears therein;
(b) Exhibit L of the Existing Credit Agreement is hereby amended and restated in its entirety in the form set forth on Exhibit B hereto; and
(c) Exhibit M of the Existing Credit Agreement is hereby amended and restated in its entirety in the form set forth on Exhibit C hereto.
SECTION 2. Conditions to the Effective Date. This Amendment and the amendments set forth in Section 1 shall each become effective on the first date (the “Effective Date”) on which each of the following conditions is satisfied (or waived by the Lenders):
(a) The Administrative Agent shall have received executed signature pages hereto from the Borrower, the Administrative Agent and each of the Lenders; and
(b) the Administrative Agent shall have received all reasonable and invoiced fees and other amounts due and payable to them by the Borrower on or prior to the Effective Date pursuant to the Existing Credit Agreement.
SECTION 3. Conversion of Eurocurrency Rate Loans. All Eurocurrency Rate Loans (as defined in the Existing Credit Agreement) denominated in Dollars outstanding under the Existing Credit Agreement as of the date hereof (collectively, the “Existing US LIBOR Rate Loans”) may remain outstanding under the Amended Credit Agreement as Eurocurrency Rate Loans until the expiration of the current Interest Period applicable to such Existing US LIBOR Rate Loans, at which time such Existing US LIBOR Rate Loans shall be converted in full (the “Specified Conversion”) to Term SOFR Loans, with an Interest Period as specified in the Notice of Conversion or Continuation, effective as of the expiration date of such current Interest Period. Any such Existing US LIBOR Rate Loans shall continue to be governed by the relevant provisions of the Existing Credit Agreement (as in effect immediately prior to the effectiveness of this Amendment) applicable to Eurocurrency Rate Loans denominated in Dollars until the earlier of (x) the repayment of such Loans and (y) the conversion of such Loans to Term SOFR Loans pursuant to the Specified Conversion; provided, however, subject to any increase in the interest rate applicable to such Eurocurrency Rate Loans pursuant to Section 2.8(c), the Applicable Rate with respect to any such Eurocurrency Rate Loans shall be the Applicable Rate with respect to Term SOFR Loans as set forth in the Amended Credit Agreement.
SECTION 4. Counterparts. This Amendment may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery by telecopier or e-mail (including “.pdf” or “.tif”) of an executed counterpart of a signature page to this Amendment shall be effective as delivery of an original executed counterpart of this Amendment. The words “execution,” “signed,” “signature,” and words of like import in this Amendment shall be deemed to include electronic signatures or electronic records, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act. The Administrative Agent may also require that any such documents and signatures delivered by telecopier be confirmed by a manually-signed original thereof; provided that the failure to request or deliver the same shall not limit the effectiveness of any document or signature delivered by telecopier.
SECTION 5. Applicable Law. THIS AMENDMENT AND ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THIS AMENDMENT (WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE) SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW RULES THAT WOULD RESULT IN THE APPLICATION OF A DIFFERENT GOVERNING LAW (OTHER THAN ANY MANDATORY PROVISIONS OF THE UCC RELATING TO THE LAW GOVERNING PERFECTION AND THE EFFECT OF PERFECTION OR PRIORITY OF THE SECURITY INTERESTS).
SECTION 6. Headings. Article and Section headings used herein are for convenience of reference only, are not part of this Amendment and are not to affect the construction of, or to be taken into consideration in interpreting, this Amendment.
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SECTION 7. Effect of Amendment. Except as expressly set forth herein, this Amendment shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise affect the rights and remedies of the Lenders or the Agents under the Existing Credit Agreement or any other Credit Document, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Existing Credit Agreement or any other provision of the Existing Credit Agreement or any other Credit Document, all of which are ratified and affirmed in all respects and shall continue in full force and effect. The parties hereto expressly acknowledge that it is not their intention that this Amendment constitute a novation of any of the obligations, covenants or agreements contained in the Existing Credit Agreement or any other Credit Document, but a modification thereof pursuant to the terms contained herein. As of the Effective Date, each reference in the Existing Credit Agreement to “this Agreement,” “hereunder,” “hereof,” “herein,” or words of like import, and each reference in the other Credit Documents to the Existing Credit Agreement (including, without limitation, by means of words like “thereunder”, “thereof” and words of like import), shall mean and be a reference to the Amended Credit Agreement, and this Amendment and the Existing Credit Agreement shall be read together and construed as a single instrument. Each of the table of contents and lists of Exhibits and Schedules of the Existing Credit Agreement shall be amended to reflect the changes made in this Amendment as of the Effective Date. This Amendment shall constitute a Credit Document for all purposes of the Amended Credit Agreement and the other Credit Documents both before and after giving effect to the amendment thereof hereby.
SECTION 8. Submission to Jurisdiction; WAIVERS OF JURY TRIAL. Sections 13.13 and 13.15 of the Amended Credit Agreement are hereby incorporated by reference herein. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING OR DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AMENDMENT OR ANY OTHER CREDIT DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AMENDMENT AND THE OTHER CREDIT DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
[Signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the date first above written.
| ROLLER BEARING COMPANY OF AMERICA, INC., as Borrower | ||
| By: | /s/ Xxxx Xxxxxx | |
| Name: | Xxxx Xxxxxx | |
| Title: | Vice President and Secretary | |
| RBC BEARINGS INCORPORATED, as Holdings | ||
| By: | /s/ Xxxx Xxxxxx | |
| Name: | Xxxx Xxxxxx | |
| Title: | Vice President and Secretary | |
[Signature Page to First Amendment]
| XXXXX FARGO BANK, NATIONAL ASSOCIATION, | ||
| as Administrative Agent | ||
| By: | /s/ Xxxx Xxxxxxx | |
| Name: | Xxxx Xxxxxxx | |
| Title: | Director | |
| XXXXX FARGO BANK, NATIONAL ASSOCIATION, | ||
| as Lender | ||
| By: | /s/ Xxxx Xxxxxxx | |
| Name: | Xxxx Xxxxxxx | |
| Title: | Director | |
[Signature Page to First Amendment]
| BANK OF AMERICA, N.A., | ||
| as a Lender | ||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |
| Name: | Xxxxxxx X. Xxxxxxx | |
| Title: | Vice President | |
[Signature Page to First Amendment]
| Bank of China Limited, New York Branch, | ||
| as a Lender | ||
| By: | /s/ Xxxxxxx Xxxx | |
| Name: | Xxxxxxx Xxxx | |
| Title: | Executive Vice President | |
[Signature Page to First Amendment]
| CAPITAL ONE, NATIONAL ASSOCIATION, | ||
| as a Lender | ||
| By: | /s/ Xxxxxxx Xxxxxxx | |
| Name: | Xxxxxxx Xxxxxxx | |
| Title: | Duly Authorized Signatory | |
[Signature Page to First Amendment]
| Citibank, N.A., | ||
| as a Lender | ||
| By: | /s/ Xxxxxxx X. Xxxxx | |
| Name: | Xxxxxxx X. Xxxxx | |
| Title: | Director | |
[Signature Page to First Amendment]
| CITIZENS BANK, N.A., | ||
| as a Lender | ||
| By: | /s/ Chancellor Xxxxxxxx | |
| Name: | Chancellor Xxxxxxxx | |
| Title: | Senior Vice President | |
[Signature Page to First Amendment]
| CITY NATIONAL BANK, | ||
| as a Lender | ||
| By: | /s/ Xxxxx Xxxx | |
| Name: | Xxxxx Xxxx | |
| Title: | Senior Vice President | |
[Signature Page to First Amendment]
| Comerica Bank, | ||
| as a Lender | ||
| By: | /s/ Xxxxxx Xxxxxx | |
| Name: | Xxxxxx Xxxxxx | |
| Title: | Senior Vice President | |
[Signature Page to First Amendment]
| Fifth Third Bank, National Association, | ||
| as a Lender | ||
| By: | /s/ Xxxxxx Xxxxxxxx | |
| Name: | Xxxxxx Xxxxxxxx | |
| Title: | SVP | |
[Signature Page to First Amendment]
| First National Bank of PA, | ||
| as a Lender | ||
| By: | /s/ Xxxxx X. Xxxx | |
| Name: | Xxxxx X. Xxxx | |
| Title: | Managing Director | |
[Signature Page to First Amendment]
| XXXXXXX XXXXX BANK USA, | ||
| as a Lender | ||
| By: | /s/ Xxxxxx Xxxxx | |
| Name: | Xxxxxx Xxxxx | |
| Title: | Authorized Signatory | |
[Signature Page to First Amendment]
| HSBC BANK USA, NATIONAL ASSOCIATION, | ||
| as a Lender | ||
| By: | /s/ Xxxxx X. Xxxxxxx | |
| Name: | Xxxxx X. Xxxxxxx | |
| Title: | Senior Vice President | |
[Signature Page to First Amendment]
| KeyBank National Association, | ||
| as a Lender | ||
| By: | /s/ Xxxx X. Xxxxx | |
| Name: | Xxxx X. Xxxxx | |
| Title: | VP | |
[Signature Page to First Amendment]
| MUFG UNION BANK, N.A., | ||
| as a Lender | ||
| By: | /s/ Xxxxx Xxxxxxx | |
| Name: | Xxxxx Xxxxxxx | |
| Title: | Director | |
[Signature Page to First Amendment]
| PNC Bank, National Association, | ||
| as a Lender | ||
| By: | /s/ Xxxxxx X. Xxxxxx | |
| Name: | Xxxxxx X. Xxxxxx | |
| Title: | Senior Vice President | |
[Signature Page to First Amendment]
| Regions Bank, | ||
| as a Lender | ||
| By: | /s/ Xxxx Xxxxx | |
| Name: | Xxxx Xxxxx | |
| Title: | Director | |
[Signature Page to First Amendment]
| Santander Bank N.A., | ||
| as a Lender | ||
| By: | /s/ Xxx Xxx | |
| Name: | Xxx Xxx | |
| Title: | Managing Director | |
[Signature Page to First Amendment]
| SYNOVUS BANK, | ||
| as a Lender | ||
| By: | /s/ Xxxxxxx Xxxxxxx | |
| Name: | Xxxxxxx Xxxxxxx | |
| Title: | Corporate Banker | |
[Signature Page to First Amendment]
| TD Bank, N.A., | ||
| as a Lender | ||
| By: | /s/ Xxxxxx Xxxxxxx | |
| Name: | Xxxxxx Xxxxxxx | |
| Title: | Managing Director | |
[Signature Page to First Amendment]
| The Bank of East Asia, Limited, New York Branh, | ||
| as a Lender | ||
| By: | /s/ Xxxxx Xxx | |
| Name: | Xxxxx Xxx | |
| Title: | SVP | |
| By: | /s/ Xxxxx Xxx | |
| Name: | Xxxxx Xxx | |
| Title: | SVP | |
[Signature Page to First Amendment]
| TRUIST BANK, | ||
| as a Lender | ||
| By: | /s/ Xxxxxxxxx Xxxxxxxx | |
| Name: | Xxxxxxxxx Xxxxxxxx | |
| Title: | Vice President | |
[Signature Page to First Amendment]
| U.S. BANK NATIONAL ASSOCIATION, | ||
| as a Lender | ||
| By: | /s/ Xxxxxx Xxxxxx | |
| Name: | Xxxxxx Xxxxxx | |
| Title: | Assistant Vice President | |
[Signature Page to First Amendment]
Exhibit A
[Attached]
Execution Version
CREDIT AGREEMENT
Dated as of November 1, 2021
(as amended by First Amendment, dated as of December 5, 2022)
among
ROLLER BEARING COMPANY OF AMERICA, INC.,
as the Borrower
RBC BEARINGS INCORPORATED,
as Holdings,
The Several Lenders
from Time to Time Parties Hereto,
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent, Collateral Agent, Swingline Lender and Letter of Credit Issuer,
XXXXX FARGO SECURITIES, LLC,
XXXXXXX XXXXX BANK USA,
BANK OF AMERICA, N.A.,
CITIBANK, N.A.,
TRUIST SECURITIES, INC.,
CITIZENS BANK, N.A.,
KEYBANK NATIONAL ASSOCIATION,
FIFTH THIRD BANK, NATIONAL ASSOCIATION and
REGIONS CAPITAL MARKETS, A DIVISION OF REGIONS BANK
as Joint Lead Arrangers and Bookrunners,
XXXXXXX XXXXX BANK USA,
BANK OF AMERICA, N.A.,
CITIBANK, N.A.,
TRUIST BANK,
CITIZENS BANK, N.A.,
KEYBANK NATIONAL ASSOCIATION,
FIFTH THIRD BANK, NATIONAL ASSOCIATION and
REGIONS BANK,
as Co-Syndication Agents,
CAPITAL ONE, N.A.,
PNC BANK, NATIONAL ASSOCIATION,
CITY NATIONAL BANK,
FIRST NATIONAL BANK OF PENNSYLVANIA,
HSBC BANK USA, NATIONAL ASSOCIATION,
SANTANDER BANK, N.A.,
U.S. BANK NATIONAL ASSOCIATION, and
TD BANK, N.A.,
as Co-Documentation Agents
TABLE OF CONTENTS
| Section 1. Definitions | 2 | |
| Section 1.1 | Defined Terms | 2 |
| Section 1.2 | Other Interpretive Provisions | 8 |
| Section 1.3 | Accounting Terms | 8 |
| Section 1.4 | Rounding | 8 |
| Section 1.5 | References to Agreements, Laws, Etc | 8 |
| Section 1.6 | Exchange Rates | 8 |
| Section 1.7 | Pro Forma and Other Calculations | 8 |
| Section 1.8 | Divisions | 8 |
| Section 1.9 | Additional Alternative Currencies | |
| Section 1.10 | Rates | |
| Section 2. Amount and Terms of Credit | 9 | |
| Section 2.1 | Commitments | 9 |
| Section 2.2 | Minimum Amount of Each Borrowing; Maximum Number of Borrowings | 9 |
| Section 2.3 | Notice of Borrowing | 9 |
| Section 2.4 | Disbursements of Funds | 9 |
| Section 2.5 | Repayment of Loans; Evidence of Debt | 9 |
| Section 2.6 | Conversions and Continuations | 9 |
| Section 2.7 | Pro Rata Borrowings | |
| Section 2.8 | Interest | |
| Section 2.9 | Interest Periods | |
| Section 2.10 | Increased Costs, Illegality, Etc. | 10 |
| Section 2.11 | Compensation | 10 |
| Section 2.12 | Change of Lending Office | 10 |
| Section 2.13 | Notice of Certain Costs | 10 |
| Section 2.14 | Incremental Facilities | 10 |
| Section 2.15 | Refinancing Amendments | 11 |
| Section 2.16 | Defaulting Lenders | 11 |
| Section 2.17 | Alternate Rate of Interest | 11 |
| Section 3. Letters of Credit | 12 | |
| Section 3.1 | Letters of Credit | 12 |
| Section 3.2 | Letter of Credit Requests | 12 |
| Section 3.3 | Letter of Credit Participations | 12 |
| Section 3.4 | Agreement to Repay Letter of Credit Drawings | 12 |
| Section 3.5 | Increased Costs | 1 |
| Section 3.6 | New or Successor Letter of Credit Issuer | 1 |
| Section 3.7 | Role of Letter of Credit Issuer | 1 |
| Section 3.8 | Cash Collateral | 1 |
| Section 3.9 | Applicability of ISP and UCP | 13 |
| Section 3.10 | Conflict with Issuer Documents | 13 |
| Section 3.11 | Letters of Credit Issued for Restricted Subsidiaries | 13 |
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| Section 4. Fees | 13 | |
| Section 4.1 | Fees | 13 |
| Section 4.2 | Voluntary Reduction of Revolving Credit Commitments | 13 |
| Section 4.3 | Mandatory Termination of Commitments | 13 |
| Section 5. Payments | 13 | |
| Section 5.1 | Voluntary Prepayments | 13 |
| Section 5.2 | Mandatory Prepayments | 13 |
| Section 5.3 | Method and Place of Payment | 13 |
| Section 5.4 | Net Payments | 13 |
| Section 5.5 | Computations of Interest and Fees | 14 |
| Section 5.6 | Limit on Rate of Interest | 14 |
| Section 6. Conditions Precedent to Initial Borrowing | 14 | |
| Section 6.1 | Credit Documents | 14 |
| Section 6.2 | Collateral | 14 |
| Section 6.3 | Legal Opinions | 14 |
| Section 6.4 | [Reserved] | 14 |
| Section 6.5 | Closing Certificates | 14 |
| Section 6.6 | Authorization of Proceedings of Each Credit Party; Corporate Documents | 14 |
| Section 6.7 | Fees and Expenses | 14 |
| Section 6.8 | Representations and Warranties | 14 |
| Section 6.9 | Solvency Certificate | 14 |
| Section 6.10 | Acquisition | 14 |
| Section 6.11 | Patriot Xxx | 00 |
| Section 6.12 | [Reserved]. | 14 |
| Section 6.13 | Financial Statements | 14 |
| Section 6.14 | No Company Material Adverse Effect | 14 |
| Section 6.15 | Refinancing | 14 |
| Section 6.16 | Financing | 14 |
| Section 7. Conditions Precedent to All Credit Events | 14 | |
| Section 7.1 | No Default; Representations and Warranties | 14 |
| Section 7.2 | Notice of Borrowing; Letter of Credit Request | 14 |
| Section 8. Representations, Warranties and Agreements | 14 | |
| Section 8.1 | Corporate Status | 14 |
| Section 8.2 | Corporate Power and Authority | 14 |
| Section 8.3 | No Violation | 14 |
| Section 8.4 | Litigation | 14 |
| Section 8.5 | Margin Regulations | 14 |
| Section 8.6 | Governmental Approvals | 14 |
| Section 8.7 | Investment Company Xxx | 00 |
| Section 8.8 | True and Complete Disclosure | 14 |
| Section 8.9 | Financial Condition: Financial Statements | 1 |
| Section 8.10 | Compliance with Laws: No Default | 1 |
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| Section 8.11 | Tax Matters | 1 |
| Section 8.12 | Labor Matters | 1 |
| Section 8.13 | Compliance with ERISA | 1 |
| Section 8.14 | Subsidiaries | 1 |
| Section 8.15 | Intellectual Property | 1 |
| Section 8.16 | Environmental Laws | 1 |
| Section 8.17 | Properties | 1 |
| Section 8.18 | Solvency | 1 |
| Section 8.19 | Xxxxxxx Xxx | 0 |
| Section 8.20 | Anti-Terrorism; Anti-Money Laundering | 1 |
| Section 8.21 | Anti-Corruption | 15 |
| Section 8.22 | Security Interest in Collateral | 15 |
| Section 8.23 | Beneficial Ownership Certificate | 15 |
| Section 9. Affirmative Covenants. | 15 | |
| Section 9.1 | Information Covenants | 15 |
| Section 9.2 | Books, Records and Inspections | 15 |
| Section 9.3 | Maintenance of Insurance | 15 |
| Section 9.4 | Payment of Taxes | 15 |
| Section 9.5 | Preservation of Existence; Consolidated Corporate Franchises | 15 |
| Section 9.6 | Compliance with Statutes, Regulations, Etc. | 15 |
| Section 9.7 | ERISA | 15 |
| Section 9.8 | Maintenance of Properties | 15 |
| Section 9.9 | Transactions with Affiliates | 15 |
| Section 9.10 | [Reserved] | 15 |
| Section 9.11 | Additional Guarantors and Grantors | 15 |
| Section 9.12 | Pledge of Additional Stock and Evidence of Indebtedness | 1 |
| Section 9.13 | Use of Proceeds | 1 |
| Section 9.14 | Further Assurances | 1 |
| Section 9.15 | Lines of Business | 16 |
| Section 10. Negative Covenants | 16 | |
| Section 10.1 | Limitation on Indebtedness | 16 |
| Section 10.2 | Limitation on Liens | 16 |
| Section 10.3 | Limitation on Fundamental Changes | 16 |
| Section 10.4 | Limitation on Sale of Assets | 1 |
| Section 10.5 | Limitation on Restricted Payments | 17 |
| Section 10.6 | Limitation on Subsidiary Distributions | 17 |
| Section 10.7 | Financial Covenants | 1 |
| Section 10.8 | Activities of Holdings | 1 |
| Section 10.9 | End of Fiscal Years; Fiscal Quarters | 178 |
| Section 11. Events of Default | 178 | |
| Section 11.1 | Payments | 178 |
| Section 11.2 | Representations, Etc. | 1 |
| Section 11.3 | Covenants | 1 |
| Section 11.4 | Default Under Other Agreements | 1 |
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| Section 11.5 | Bankruptcy, Etc. | 18 |
| Section 11.6 | ERISA | 18 |
| Section 11.7 | Guarantee | 18 |
| Section 11.8 | Security Documents | 18 |
| Section 11.9 | Security Agreement | 18 |
| Section 11.10 | [Reserved]. | 18 |
| Section 11.11 | Judgments | 18 |
| Section 11.12 | Change of Control | 18 |
| Section 11.13 | Application of Proceeds | 18 |
| Section 11.14 | Equity Cure | 18 |
| Section 12. The Agents | 18 | |
| Section 12.1 | Appointment | 18 |
| Section 12.2 | Delegation of Duties | 18 |
| Section 12.3 | Exculpatory Provisions | 18 |
| Section 12.4 | Reliance by Agents | 18 |
| Section 12.5 | Notice of Default | 18 |
| Section 12.6 | Non-Reliance on Administrative Agent, Collateral Agent and Other Lenders | 18 |
| Section 12.7 | Indemnification | 18 |
| Section 12.8 | Agents in Their Individual Capacities | 1 |
| Section 12.9 | Successor Agents | 1 |
| Section 12.10 | Withholding Tax | 189 |
| Section 12.11 | Agents Under Security Documents and Guarantee | 189 |
| Section 12.12 | Right to Realize on Collateral and Enforce Guarantee | 19 |
| Section 12.13 | Additional Acknowledgements of Lenders. | 19 |
| Section 12.14 | Certain ERISA Matters. | 19 |
| Section 13. Miscellaneous | 19 | |
| Section 13.1 | Amendments, Waivers and Releases | 19 |
| Section 13.2 | Notices | |
| Section 13.3 | No Waiver; Cumulative Remedies | |
| Section 13.4 | Survival of Representations and Warranties | |
| Section 13.5 | Payment of Expenses; Indemnification | |
| Section 13.6 | Successors and Assigns; Participations and Assignments | |
| Section 13.7 | Replacements of Lenders Under Certain Circumstances | 20 |
| Section 13.8 | Adjustments; Set-off | 20 |
| Section 13.9 | Counterparts | 20 |
| Section 13.10 | Severability | 20 |
| Section 13.11 | Integration | 2 |
| Section 13.12 | GOVERNING LAW | 2 |
| Section 13.13 | Submission to Jurisdiction; Waivers | 2 |
| Section 13.14 | Acknowledgments | 2 |
| Section 13.15 | WAIVERS OF JURY TRIAL | 2 |
| Section 13.16 | Confidentiality | 2 |
| Section 13.17 | Direct Website Communications | 21 |
| Section 13.18 | USA PATRIOT Xxx | 00 |
| Section 13.19 | Judgment Currency | 21 |
| Section 13.20 | Payments Set Aside | 21 |
| Section 13.21 | Special Provisions Relating to Currencies Other Than Dollars | 21 |
| Section 13.22 | Acknowledgment and Consent to Bail-In of Affected Financial Institutions | 21 |
| Section 13.23 | Acknowledgment Regarding Any Supported QFCs | 21 |
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| SCHEDULES | |
| Schedule 1.1(a) | Existing Letters of Credit |
| Schedule 1.1(b) | Mortgaged Properties |
| Schedule 1.1(c) | Commitments of Lenders |
| Schedule 1.1(d) | Xxxxx Xxxxx |
| Schedule 8.14 | Subsidiaries |
| Schedule 9.14(e) | Post-Closing Actions |
| Schedule 13.2 | Notice Addresses |
| EXHIBITS | |
| Exhibit A | Form of Joinder Agreement |
| Exhibit B | [reserved] |
| Exhibit C | [reserved] |
| Exhibit D | [reserved] |
| Exhibit E | Form of Letter of Credit Request |
| Exhibit F | Form of Credit Party Closing Certificate |
| Exhibit G | Form of Assignment and Acceptance |
| Exhibit H-1 | Form of Promissory Note (Initial Term Loans) |
| Exhibit H-2 | Form of Promissory Note (Revolving Credit Loans) |
| Exhibit I-1 | Form of First Lien Intercreditor Agreement |
| Exhibit I - 2 | Form of Junior Lien Intercreditor Agreement |
| Exhibit J | Form of Compliance Certificate |
| Exhibit K | Form of Non-Bank Tax Certificate |
| Exhibit L | Form of Conversion/Continuation Notice |
| Exhibit M | Notice of Borrowing |
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CREDIT AGREEMENT, dated as of November 1, 2021, as amended, restated, supplemented or otherwise modified from time to time, among RBC BEARINGS INCORPORATED, a Delaware corporation (“Holdings”), ROLLER BEARING COMPANY OF AMERICA, INC., a Delaware corporation (the “Borrower”), the lending institutions from time to time parties hereto (each a “Lender” and, collectively, the “Lenders”) and XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent, Collateral Agent, Swingline Lender and Letter of Credit Issuer (such terms and each other capitalized term used but not defined in this preamble having the meaning provided in Section 1).
WHEREAS, pursuant to the Stock and Asset Purchase Agreement, dated as of July 24, 2021 (as amended from time to time in accordance therewith, the “Acquisition Agreement”), between Holdings and ABB ASEA BROWN BOVERI LTD, a corporation organized under the laws of Switzerland (the “Seller”), Holdings will purchase (i) all of the issued and outstanding equity interests of each of (a) Dodge Mechanical Power Transmission Company Inc., a Delaware corporation and (b) Shanghai ABB Power Transmission Company Ltd., a limited company organized under the laws of the People’s Republic of China, as specified therein and (ii) the Transferred Assets (as defined in the Acquisition Agreement) (the entities and assets described in the foregoing clauses (i) and (ii), collectively, the “Company”);
WHEREAS, in connection with the foregoing, the Borrower has requested that the Lenders extend credit in the form of (a) Initial Term Loans to the Borrower on the Closing Date in Dollars, in an aggregate principal amount of $1,300,000,000 and (b) Revolving Credit Loans made available to the Borrower at any time after the Closing Date and from time to time thereafter prior to the Revolving Credit Maturity Date in Dollars or Alternative Currencies, in an aggregate Dollar Equivalent principal amount at any time outstanding not in excess of $500,000,000 less the sum of (i) the aggregate Letters of Credit Outstanding at such time and (ii) the aggregate principal amount of all Swingline Loans outstanding at such time;
WHEREAS, in connection with the foregoing, Holdings issued on September 24, 2021, (i) 4,600,000 shares of its 5.00% Series A Mandatory Convertible Preferred Stock in a public offering registered under the Securities Act of 1933, as amended (the “Securities Act”) (the “Mandatory Convertible Offering”) and (ii) 3,450,000 shares of its common stock in a public offering registered under the Securities Act (the “Common Stock Offering”);
WHEREAS, in connection with the foregoing, the Borrower issued on October 7, 2021, $500,000,000 in aggregate principal amount of its 4.375% senior notes due 2029 (the “Senior Notes”);
WHEREAS, the proceeds of the Initial Term Loans will be used, together with proceeds of (i) borrowings by the Borrower under the Revolving Credit Facility, if any, (ii) the Mandatory Convertible Offering, (iii) the Common Stock Offering and (iv) the Senior Notes, to fund a portion of the cash purchase price for the Acquisition, to pay certain fees and expenses relating to the Acquisition, for other general corporate purposes and/or otherwise to pay Transaction Expenses; and
WHEREAS, the Lenders and Letter of Credit Issuer are willing to make available to the Borrower such term loans and revolving credit and letter of credit facilities upon the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the covenants and agreements contained herein, the parties hereto hereby agree as follows:
Section 1. Definitions
Section 1.1 Defined Terms.
As used herein, the following terms shall have the meanings specified in this Section 1.1 unless the context otherwise requires (it being understood that defined terms in this Agreement shall include in the singular number the plural and in the plural the singular):
“ABR” shall
mean for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Effective Rate plus 1/2 of 1%, (b) the rate
of interest in effect for such day as announced, from time to time, within Xxxxx Fargo at its principal office in San Francisco as its
“prime rate”, with the understanding that the “prime rate” is one of Xxxxx Fargo’s base rates (not necessarily
the lowest of such rates) and serves as the basis upon which effective rates of interest are calculated for those loans making reference
thereto and is evidenced by the recording thereof after its announcement in such internal publications as Xxxxx Fargo may designate; provided
that, if such rate shall be less than zero, it shall be deemed to be zero for purposes of this Agreement and (c)(i)
prior to the USD LIBOR Transition Date, the Adjusted Eurocurrency Rate for Dollars Term SOFR
for an interest period of one (1) month, determined on the second full Business Day prior to such day,
plus 1.00% and (ii) on and after the USD LIBOR Transition Date, Daily Simple RFR for Dollars in effect on such day, plus
1.00%. Each change in the ABR shall take effect simultaneously with the corresponding change or changes in the Prime Rate, Federal Funds
Effective Rate, Adjusted Eurocurrency Rate for Dollars or Daily SimpleTerm
RSOFR for Dollars,
as the case may be (provided that clause (c) shall not be applicable during any period in which the Adjusted
Eurocurrency RateTerm SOFR or Daily Simple RFR, as applicable, is unavailable
or unascertainable).
“ABR Loan” shall mean each Loan (other than Loans made in any Alternative Currency) bearing interest based on the ABR.
“Acquired EBITDA” shall mean, with respect to any Acquired Entity or Business or any Converted Restricted Subsidiary (any of the foregoing, a “Pro Forma Entity”) for any period, the amount for such period of Consolidated EBITDA of such Pro Forma Entity (determined using such definitions as if references to Holdings and its Restricted Subsidiaries therein were to such Pro Forma Entity and its Restricted Subsidiaries), all as determined on a consolidated basis for such Pro Forma Entity in accordance with GAAP.
“Acquired Entity or Business” shall have the meaning provided in the definition of the term “Consolidated EBITDA”.
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“Acquired Indebtedness” shall mean, with respect to any specified Person, (1) Indebtedness of any other Person existing at the time such other Person is merged with or into or became a Restricted Subsidiary of such specified Person, including Indebtedness incurred in connection with, or in contemplation of, such other Person merging with or into or becoming a Restricted Subsidiary of such specified Person, and (2) Indebtedness secured by a Lien encumbering any asset acquired by such specified Person.
“Acquisition” shall mean the transactions contemplated by the Acquisition Agreement.
“Acquisition Agreement” shall have the meaning provided in the preamble to this Agreement.
“Additional Refinancing Lender” shall have the meaning provided in Section 2.15.
“Additional Revolving Credit Commitment” shall have the meaning provided in Section 2.14(a).
“Additional Revolving Credit Loan” shall have the meaning provided in Section 2.14(b).
“Additional Revolving Loan Lender” shall have the meaning provided in Section 2.14(b).
“Adjusted Eurocurrency
Rate” means, as to any Loan denominated in any applicable Agreed Currency not bearing interest based on an RFR (which, as of
the date hereof, shall mean Dollars and each of the Agreed Currencies identified in clause
(a) of the definition of “Alternative Currency”, other than Pounds Sterling and Swiss Francs) for any Interest Period, a rate
per annum determined by the Administrative Agent pursuant to the following formula:
| Adjusted Eurocurrency Rate = | Eurocurrency Rate for such Agreed Currency for such Interest Period |
| 1.00-Eurocurrency Reserve Percentage |
“Adjusted Term SOFR” means, for purposes of any calculation, the rate per annum equal to (a) Term SOFR for such calculation plus (b) the Term SOFR Adjustment; provided that if Adjusted Term SOFR as so determined shall ever be less than the Floor, then Adjusted Term SOFR shall be deemed to be the Floor.
“Adjusted Total Revolving Credit Commitment” shall mean at any time the Total Revolving Credit Commitment less the aggregate Revolving Credit Commitments of all Defaulting Lenders.
“Adjusted Total Term Loan Commitment” shall mean at any time the Total Term Loan Commitment less the Term Loan Commitments of all Defaulting Lenders.
“Administrative Agent” shall mean Xxxxx Fargo Bank, National Association, as the administrative agent for the Lenders under this Agreement and the other Credit Documents, or any successor administrative agent appointed pursuant to Section 12.9.
“Administrative Agent Fee Letter” means that certain administrative agent fee letter, dated as of the Closing Date, by and between, Holdings, the Borrower and Xxxxx Fargo Bank, National Association.
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“Administrative Agent’s Office” shall mean the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 13.2 or such other address or account as the Administrative Agent may from time to time notify to Holdings and the Lenders.
“Administrative Questionnaire” shall have the meaning provided in Section 13.6(b)(ii)(D).
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution
“Affiliate” shall mean, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under direct or indirect common control with such Person. A Person shall be deemed to control another Person if such Person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of such other Person, whether through the ownership of voting securities, by contract or otherwise.
“Agent Parties” shall have the meaning provided in Section 13.17(b).
“Agents” shall mean the Administrative Agent, the Collateral Agent, each Co-Syndication Agent, each Joint Lead Arranger and Bookrunner and each Co-Documentation Agent.
“Aggregate Revolving Credit Outstandings” shall have the meaning provided in Section 5.2(b).
“Agreed Currency” means U.S. Dollars and each Alternative Currency.
“Agreement” shall mean this Credit Agreement, as the same may be amended, supplemented, amended and restated or otherwise modified from time to time.
“Agreement Currency” shall have the meaning provided in Section 13.19.
“Alternative Currency” shall mean each of (a) Canadian Dollars, Pounds Sterling, Euro, Swiss Francs and (b) any other currency (other than Dollars) that is approved in accordance with Section 1.9, in each case to the extent such currencies are (i) readily available and free transferable and convertible into Dollars, (ii) are dealt with in the London interbank deposit market and (iii) for which no central bank or other governmental authorization in the country of issue of such currency is required to give authorization for the use of such currency by any Lender for making Loans unless such authorization has been obtained and remains in full force and effect.
“Anti-Corruption Laws” shall mean all laws, rules, and regulations of any jurisdiction applicable to each Credit Party or its Related Parties from time to time concerning or relating to bribery or corruption.
“Anti-Terrorism Laws” shall have the meaning provided in Section 8.20.
“Applicable Law” means all applicable provisions of constitutions, laws, statutes, ordinances, rules, treaties, regulations, permits, licenses, approvals, interpretations and orders of Governmental Authorities and all orders and decrees of all courts and arbitrators.
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“Applicable Margin” shall mean a percentage per annum equal to:
(i) (a) until delivery of financial statements and a related Compliance Certificate for the first full fiscal quarter commencing after the Closing Date pursuant to Section 9.1, (v) for Eurocurrency Rate Loans, Term SOFR Loans and Transitioned RFR Loans, 1.75%, (w) for ABR Loans, 0.75%, (x) for Letter of Credit Fees, 1.75% per annum, (y) for Initial RFR Loans denominated in Pounds Sterling, 1.86930% and (z) for Initial RFR Loans denominated in Swiss Francs, 1.75310% and (b) thereafter, in connection with the Loans and the Letter of Credit Fees, the percentages per annum set forth in the table below, based upon the Consolidated Total Debt to Consolidated EBITDA Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 9.1(d):
| Pricing Level | Consolidated Total Debt to Consolidated EBITDA Ratio | Letter of Credit Fees | ABR Loans (including Swingline Loans) | Eurocurrency Rate Loans, Term SOFR Loans and Transitioned RFR Loans | Initial RFR Loans denominated in Pounds Sterling | Initial RFR Loans denominated in Swiss Francs | ||||||||||||||||
| I | > 4.5x | 2.00 | % | 1.00 | % | 2.00 | % | 2.11930 | % | 2.00310 | % | |||||||||||
| II | < 4.5x but > 3.75x | 1.75 | % | 0.75 | % | 1.75 | % | 1.86930 | % | 1.75310 | % | |||||||||||
| III | < 3.75x but > 3.0x | 1.50 | % | 0.50 | % | 1.50 | % | 1.61930 | % | 1.50310 | % | |||||||||||
| IV | < 3.0x but > 2.25x | 1.25 | % | 0.25 | % | 1.25 | % | 1.36930 | % | 1.25310 | % | |||||||||||
| V | < 2.25x but > 1.50x | 1.00 | % | 0.00 | % | 1.00 | % | 1.11930 | % | 1.00310 | % | |||||||||||
| VI | < 1.50x | 0.75 | % | 0.00 | % | 0.75 | % | 0.86930 | % | 0.75310 | % | |||||||||||
Any increase or decrease in the Applicable Margin for the Loans or Letter of Credit Fees resulting from a change in the Consolidated Total Debt to Consolidated EBITDA Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 9.1(d).
Notwithstanding the foregoing, (a) the Applicable Margin in respect of any Class of Extended Revolving Credit Commitments or any Extended Term Loans or Revolving Credit Loans made pursuant to any Extended Revolving Credit Commitments shall be the applicable percentages per annum set forth in the relevant Extension Amendment, (b) the Applicable Margin in respect of any Class of Additional Revolving Credit Commitments, any Class of New Term Loans, or any Class of Loans in respect of Additional Revolving Credit Commitments shall be the applicable percentages per annum set forth in the relevant Joinder Agreement, (c) the Applicable Margin in respect of any Class of Replacement Term Loans shall be the applicable percentages per annum set forth in the relevant agreement, (d) the Applicable Margin in respect of any Class of Other Revolving Commitments shall be the applicable percentages per annum set forth in the relevant agreement, and (e) in the case of the Term Loans and any Class of New Term Loans, the Applicable Margin shall be increased as, and to the extent, necessary to comply with the provisions of Section 2.14.
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Notwithstanding anything to the contrary contained above in this definition or elsewhere in this Agreement, if it is subsequently determined that the Consolidated Total Debt to Consolidated EBITDA Ratio set forth in any Compliance Certificate delivered to the Administrative Agent is inaccurate for any reason and the result thereof is that the Lenders received interest or fees for any period based on an Applicable Margin that is less than that which would have been applicable had the Consolidated Total Debt to Consolidated EBITDA Ratio been accurately determined, then, for all purposes of this Agreement, the “Applicable Margin” for any day occurring within the period covered by such Compliance Certificate shall retroactively be deemed to be the relevant percentage as based upon the accurately determined Consolidated Total Debt to Consolidated EBITDA Ratio for such period, and any shortfall in the interest or fees theretofore paid by the Borrower for the relevant period as a result of the miscalculation of the Consolidated Total Debt to Consolidated EBITDA Ratio shall be deemed to be (and shall be) due and payable, at the time the interest or fees for such period were required to be paid; provided that notwithstanding the foregoing, so long as an Event of Default described in Section 11.5 has not occurred with respect to the Borrower, such shortfall shall be due and payable within five Business Days following the demand thereof by the Administrative Agent. In addition, at the option of the Required Lenders, at any time during which the Borrower shall have failed to deliver the Section 9.1 Financials by the date required under Section 9.1, then the Consolidated Total Debt to Consolidated EBITDA Ratio shall be deemed to be in Pricing Level I for the purposes of determining the Applicable Margin (but only for so long as such failure continues, after which the Pricing Level shall be otherwise as determined as set forth above).
“Approved Foreign Bank” shall have the meaning provided in clause (10) of the definition of “Cash Equivalents.”
“Approved Fund” shall mean any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers, advises or manages a Lender.
“Asset Sale” shall mean:
(1) the sale, conveyance, transfer or other disposition, whether in a single transaction or a series of related transactions, of property or assets (including by way of a Sale Leaseback) of Holdings or any Restricted Subsidiary (each referred to in this definition as a “disposition”) or
(2) the issuance or sale of Equity Interests of any Restricted Subsidiary (other than preferred stock of Restricted Subsidiaries issued in compliance with Section 10.1), whether in a single transaction or a series of related transactions, in each case, other than:
(a) any disposition of Cash Equivalents or Investment Grade Securities or obsolete or worn out equipment in the ordinary course of business or any disposition of inventory, immaterial assets or goods (or other assets) in the ordinary course of business;
(b) the disposition of all or substantially all of the assets of Holdings or the Borrower solely in a manner expressly permitted pursuant to Section 10.3;
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(c) the making of any Restricted Payment or Permitted Investment that is permitted to be made, and is made, pursuant to Section 10.5;
(d) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate Fair Market Value of less than, in the aggregate, the greater of $65,000,000 and 15.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such disposition;
(e) any disposition of property or assets or issuance of securities by a Restricted Subsidiary of Holdings to Holdings or by Holdings or a Restricted Subsidiary of Holdings to another Restricted Subsidiary;
(f) to the extent allowable under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(g) [reserved];
(h) any issuance, sale or pledge of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(i) foreclosures, condemnation or any similar action on assets;
(j) [reserved];
(k) any financing transaction with respect to property built or acquired by Holdings or any Restricted Subsidiary after the Closing Date, including Sale Leasebacks and asset securitizations permitted by this Agreement;
(l) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or other litigation claims in the ordinary course of business;
(m) the sale or discount of inventory, accounts receivable or notes receivable in the ordinary course of business or the conversion of accounts receivable to notes receivable;
(n) the licensing or sub-licensing of Intellectual Property or other general intangibles in the ordinary course of business;
(o) the unwinding of any Hedging Obligations;
(p) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(q) the lapse or abandonment of Intellectual Property rights in the ordinary course of business, which in the reasonable good faith determination of Holdings are not material to the conduct of the business of Holdings and its Restricted Subsidiaries taken as a whole;
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(r) the issuance of directors’ qualifying shares and shares issued to foreign nationals as required by applicable law;
(s) dispositions of non-core assets acquired in connection with any Permitted Acquisition or Investment permitted hereunder that are no longer economically practical or commercially desirable to maintain or used or useful in the business of the Borrower and its Restricted Subsidiaries or that are necessary or advisable (as determined by the Borrower in good faith) in order to obtain or increase the likelihood of obtaining the approval of any Governmental Authority to consummate or avoid the prohibition or other restriction on the consummation of any Permitted Acquisition or Investment;
(t) leases, subleases, licenses or sublicenses, in each case in the ordinary course of business and which do not materially interfere with the business of the Borrower and its Restricted Subsidiaries, taken as a whole;
(u) the sale of such property or assets which contracts have been entered into as of the Closing Date;
(v) the sale of each of the Houston Facility and the Fairfield Facility;
(w) any swap of assets in exchange for services or other assets in the ordinary course of business of comparable or greater Fair Market Value or usefulness to the business of Holdings and its Restricted Subsidiaries, as a whole, as determined in good faith by the Borrower; and
(x) dispositions of property to the extent that (a) such property is exchanged for credit against the purchase price of similar replacement property that is purchased within 450 days thereof that is useful to the business of Holdings and its Restricted Subsidiaries and (b) the proceeds of such Asset Sale are promptly applied to the purchase price of such replacement property (which replacement property is actually purchased within 450 days thereof).
“Asset Sale Prepayment Event” shall mean any Asset Sale subject to the Reinvestment Period allowed in Section 10.4.
“Assignment and Acceptance” shall mean an assignment and acceptance substantially in the form of Exhibit G, or such other form as may be approved by the Administrative Agent.
“Assignment Taxes” shall have the meaning provided in the definition of “Other Taxes.”
“Authorized Officer” shall mean any of the following officers: the Chairman, the President, the Chief Executive Officer, the Chief Financial Officer, the Chief Administrative Officer, the General Counsel, any Vice President, the Treasurer, the Assistant Treasurer, the Secretary, the Assistant Secretary or the Controller, or such other Person as is authorized in writing to act on behalf of any of the Credit Parties and is reasonably acceptable to the Administrative Agent.
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“Auto-Extension Letter of Credit” shall have the meaning provided in Section 3.2(d).
“Available Commitment” shall mean an amount equal to the excess, if any, of (a) the amount of the Total Revolving Credit Commitment over (b) the sum of the aggregate Dollar Equivalent principal amount of (i) all Revolving Credit Loans (but not Swingline Loans) then outstanding and (ii) the aggregate Letters of Credit Outstanding at such time.
“Available Tenor” means, as of any date of determination and with respect to any then-current Benchmark for any Agreed Currency, as applicable, (a) if such Benchmark is a term rate, any tenor for such Benchmark (or component thereof) that is or may be used for determining the length of an Interest Period pursuant to this Agreement or (b) otherwise, any payment period for interest calculated with reference to such Benchmark (or component thereof) that is or may be used for determining any frequency of making payments of interest calculated with reference to such Benchmark, in each case, as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to Section 2.17(c)(iv).
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation” means (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“Bankruptcy Code” shall have the meaning provided in Section 11.5.
“Benchmark”
means, initially, with respect to any (a) Obligations, interest, fees, commissions or other amounts denominated in, or calculated with
respect to, Dollars, the Adjusted Eurocurrency RateTerm
SOFR for Dollars; provided that if (i) the USD LIBOR Transition Date has occurred or
(ii) a Benchmark Transition Event, or a Term RFR Transition Event or an Other Benchmark
Rate Election, as applicable, has occurred with respect to the Adjusted Term SOFR or then-current
Benchmark for Dollars, then “Benchmark” means, with respect to such Obligations, interest, fees, commissions or other amounts,
the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to
Section 2.17(c)(i), (b) Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to,
Pounds Sterling or Swiss Francs, the Daily Simple RFR applicable for such Agreed Currency; provided that if a Benchmark Transition
Event or a Term RFR Transition Event, as applicable, has occurred with respect to such Daily Simple RFR or the then-current Benchmark
for such Agreed Currency, then “Benchmark” means, with respect to such Obligations, interest, fees, commissions or other amounts,
the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to
Section 2.17(c)(i) and (c) Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect
to, Euros, the Adjusted Eurocurrency Rate applicable for such Agreed Currency; provided that if a Benchmark Transition Event or
a Term RFR Transition Event, as applicable, has occurred with respect to such Adjusted Eurocurrency Rate or the then-current Benchmark
for such Agreed Currency, then “Benchmark” means, with respect to such Obligations, interest, fees, commissions or other amounts,
the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to
Section 2.17(c)(i).
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“Benchmark Replacement” means:
(a) with respect to any Benchmark Transition Event for the then-current Benchmark, the sum of: (i) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower as the replacement for such Benchmark giving due consideration to (A) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (B) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for such Benchmark for syndicated credit facilities denominated in the applicable Agreed Currency at such time and (ii) the related Benchmark Replacement Adjustment; provided that, if such Benchmark Replacement as so determined would be less than the Floor, such Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Credit Documents; and
(b) with
respect to the USD LIBOR Transition Date, for any Available Tenor of the Adjusted Eurocurrency Rate for Dollars, the first alternative
set forth in the order below that can be determined by the Administrative Agent for the USD LIBOR Transition Date:
| (1) | Term RFR for Dollars; provided, that, if the Borrower has provided a notification to the Administrative Agent in writing on or prior to the USD LIBOR Transition Date that the Borrower has a Hedge Agreement in place with respect to any of the Loans as of the date of such notice (which such notification the Administrative Agent shall be entitled to rely upon and shall have no duty or obligation to ascertain the correctness or completeness of), then the Administrative Agent, in its sole discretion, may decide not to determine the Benchmark Replacement pursuant to this clause (b)(1) for the USD LIBOR Transition Date; |
| (2) | Daily Simple RFR for Dollars; or |
| (3) |
|
(cb)
with respect to any Term RFR Transition Event for any Agreed Currency, the Term RFR for such Agreed Currency;
or.
(d) with
respect to any Other Benchmark Rate Election, the sum of: (A) the alternate benchmark rate that has been selected by the Administrative
Agent and the Borrower as the replacement for the Adjusted Eurocurrency Rate for Dollars giving due consideration to any evolving or then-prevailing
market convention for determining a benchmark rate as a replacement for such Benchmark for Dollar-denominated syndicated credit facilities
at such time and (B) the related Benchmark Replacement Adjustment; provided that, if such Benchmark
Replacement as so determined would be less than the Floor, such Benchmark Replacement will be deemed to be the Floor for the purposes
of this Agreement and the other Credit Documents;
provided that,
in the case of clause (b)(1), if the Administrative Agent decides that Term RFR for Dollars is not administratively feasible for the Administrative
Agent, then Term RFR for Dollars will be deemed unable to be determined for purposes of this definition.
“Benchmark
Replacement Adjustment” means, for purposes of:
(a)
clauses (a) and (b)(3 “Benchmark Replacement Adjustment” means, for
purposes of clause (a)) of the definition of “Benchmark Replacement”, with respect to any replacement of any then-current
Benchmark with an Unadjusted Benchmark Replacement for any applicable Available Tenor, 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 such Benchmark 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 such Benchmark with the applicable Unadjusted Benchmark Replacement
for syndicated credit facilities denominated in the applicable Agreed Currency; and.
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(b) clause
(d) of the definition of “Benchmark Replacement”, with respect to any replacement of the Adjusted Eurocurrency Rate for Dollars
with an Unadjusted Benchmark Replacement for any applicable Available Tenor, 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 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 Adjusted Eurocurrency Rate for Dollars with the applicable
Unadjusted Benchmark Replacement for Dollar-denominated syndicated credit facilities.
“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “ABR” (if applicable), the definition of “Business Day,” the definition of “Interest Period” or any similar or analogous definition (or the addition of a concept of “interest period”), the definition of “Eurocurrency Banking Day”, the definition of “RFR Business Day”, timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, length of lookback periods and other technical, administrative or operational matters) that the Administrative Agent decides 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 (x) market practice and (y) other syndicated credit facilities for similarly situated sponsors denominated in the applicable Agreed Currency for which the Administrative Agent acts as administrative agent (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 such 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 and the other Credit Documents).
“Benchmark Replacement Date” means, the earliest to occur of the following events with respect to the then-current Benchmark for any Agreed Currency:
(a) in the case of clause (a) or (b) of the definition of “Benchmark Transition Event”, the later of (i) the date of the public statement or publication of information referenced therein and (ii) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof);
(b) in the case of clause (c) of the definition of “Benchmark Transition Event”, the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be no longer representative; provided, that such non-representativeness will be determined by reference to the most recent statement or publication referenced in such clause (c) and even if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date; or
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(c) in
the case of a Term RFR Transition Event for such Agreed Currency, the Term RFR Transition Date applicable thereto;
or.
(d) in
the case of an Other Benchmark Rate Election, the sixth (6th) Business Day after the date notice of such Other Benchmark Rate
Election is provided to the Lenders, so long as the Administrative Agent has not received, by 5:00 p.m. (New York City time) on the fifth
(5th) Business Day after the date notice of such Other Benchmark Rate Election is provided to the Lenders, written notice of
objection to such Other Benchmark Rate Election from Lenders comprising the Required Lenders.
For the avoidance of doubt, (A) if the Reference Time for the applicable Benchmark refers to a specific time of day and the event giving rise to the Benchmark Replacement Date for any Benchmark occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such Benchmark and for such determination and (B) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (a) or (b) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition
Event” means, with respect to the then-current Benchmark for any Agreed Currency (other
than Adjusted Eurocurrency Rate for Dollars), the occurrence of one or more of the following events with respect to such
Benchmark:
(a) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);
(b) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the FRB, the Federal Reserve Bank of New York, the central bank for the Agreed Currency applicable to such Benchmark, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or
(c) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are no longer, or as of a specified future date will no longer be, representative.
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For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition
Start Date” means, with respect to any Benchmark, (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) or (b) in the case of an Other
Benchmark Rate Election, the applicable Benchmark Replacement Date.
“Benchmark Unavailability
Period” means, with respect to (a) the Adjusted Eurocurrency Rate for Dollars, the period
(if any) (i) beginning at the time that the USD LIBOR Transition Date has occurred pursuant to clause (a) of that definition if, at such
time, no Benchmark Replacement has replaced the Adjusted Eurocurrency Rate for Dollars for all purposes hereunder and under any Credit
Document in accordance with Section 2.17(c)(i) and (ii) ending at the time that a Benchmark Replacement
has replaced the Adjusted Eurocurrency Rate for Dollars for all purposes hereunder and under any Credit Document in accordance with Section
2.17(c)(i) and (b) any then-current Benchmark for any Agreed Currency other
than the Adjusted Eurocurrency Rate for Dollars, the period (if any) (i) beginning at the time that a Benchmark Replacement
Date with respect to such Benchmark pursuant to clauses (a) or (b) of that definition has occurred if, at such time, no Benchmark Replacement
has replaced such Benchmark for all purposes hereunder and under any Credit Document in accordance with Section 2.17(c)(i) and
(ii) ending at the time that a Benchmark Replacement has replaced such Benchmark for all purposes hereunder and under any Credit Document
in accordance with Section 2.17(c)(i).
“Beneficial Ownership Certification” shall mean a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” means 31 C.F.R. §1010.230.
“Benefit Plan” means 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 and subject to 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”.
“benefited Lender” shall have the meaning provided in Section 13.8(a).
“BHC Act Affiliate” shall have the meaning provided in Section 13.23.
“Board” shall mean the Board of Governors of the Federal Reserve System of the United States (or any successor).
“Borrower” shall have the meaning provided in the preamble to this Agreement.
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“Borrower Materials” shall have the meaning provided in Section 13.17(b).
“Borrowing” shall mean and include (a) the incurrence of Swingline Loans from the Swingline Lender on a given date, (b) the incurrence of one Type of Term Loan on the Closing Date (or resulting from conversions on a given date after the Closing Date) having, in the case of Eurocurrency Term Loans, Term SOFR Loans or Term RFR Loans, the same Interest Period (provided that ABR Loans or Daily Simple RFR Loan incurred pursuant to Section 2.10(b) shall be considered part of any related Borrowing of Eurocurrency Term Loans, Term SOFR Loans or Term RFR Loans) and (c) the incurrence of one Type of Revolving Credit Loan of the same Class and currency on a given date (or resulting from conversions on a given date) having, in the case of Eurocurrency Rate Loans, Term SOFR Loans or Term RFR Loans that are Revolving Credit Loans, the same Interest Period (provided that ABR Loans incurred pursuant to Section 2.10(b) shall be considered part of any related Borrowing of Eurocurrency Rate Loans, Term SOFR Loans or Term RFR Loans that are Revolving Credit Loans).
“Business Day” shall mean any day excluding Saturday, Sunday and any other day on which banking institutions in New York City are authorized by law or other governmental actions to close, and,
(a) if such day relates to
any interest rate settings as to a Eurocurrency Rate Loan denominated in Dollars or any
Alternative Currency (other than Euro, Pounds Sterling or Canadian Dollars) Term SOFR Loan,
any fundings, disbursements, settlements and payments in Dollars or any Alternative Currency (other
than Euro, Pounds Sterling or Canadian Dollars) in respect of any such Eurocurrency
RateTerm SOFR Loan, or any other dealings in Dollars or
any Alternative Currency (other than Euro, Pounds Sterling or Canadian Dollars) to be carried out pursuant to this Agreement
in respect of any such Eurocurrency RateTerm SOFR
Loan, such day shall be a day on which dealings in deposits in Dollars or such
Alternative Currency are conducted by and between banks in the applicable London interbank market;the
Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be open for the entire
day for purposes of trading in United States government securities;
(b) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan denominated in Euro, any fundings, disbursements, settlements and payments in Euro in respect of any such Eurocurrency Rate Loan, or any other dealings in Euro to be carried out pursuant to this Agreement in respect of any such Eurocurrency Rate Loan, such day shall be a TARGET Day;
(c) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan denominated in Pounds Sterling, such day shall be a day on which dealings in deposits in Pounds Sterling, as applicable, are conducted by and between banks in the London interbank market;
(d)
if such day relates to any fundings, disbursements, settlements and payments in Pounds Sterling in respect of a Eurocurrency Rate
Loan denominated in Pounds Sterling, or any other dealings in Pounds Sterling to be carried out pursuant to this Agreement in respect
of any such Eurocurrency Rate Loan (other than any interest rate settings), such day shall be a day on which banks are open for foreign
exchange business in London; and
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(e)
if such day relates to any interest rate settings as to a Eurocurrency Rate Loan denominated in Canadian Dollars, any fundings,
disbursements, settlements and payments in Canadian Dollars in respect of any such Eurocurrency Rate Loan, or any other dealings in Canadian
Dollars to be carried out pursuant to this Agreement in respect of any such Eurocurrency Rate Loan, such day shall be a day on which banks
are open for business in Toronto.; and
(f) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan denominated in any Alternative Currency (other than Euro, Pounds Sterling or Canadian Dollars), any fundings, disbursements, settlements and payments in any Alternative Currency (other than Euro, Pounds Sterling or Canadian Dollars) in respect of any such Eurocurrency Rate Loan, or any other dealings in any Alternative Currency (other than Euro, Pounds Sterling or Canadian Dollars) to be carried out pursuant to this Agreement in respect of any such Eurocurrency Rate Loan, such day shall be a day on which dealings in deposits in such Alternative Currency are conducted by and between banks in the applicable London interbank market.
“Canadian Dollars” shall mean the lawful currency of Canada.
“Capital Lease” shall mean, as applied to any Person, any lease of any property (whether real, personal or mixed) by that Person as lessee that, in conformity with GAAP, is, or is required to be, accounted for as a capital lease on the balance sheet of that Person; provided that all leases of any Person that are or would be characterized as operating leases in accordance with GAAP as in effect prior to December 15, 2018 (whether or not such operating leases were in effect on such date) shall be accounted for as operating leases (and not as Capital Leases) for purposes of this Agreement regardless of any change in GAAP following such date that would otherwise require such leases to be recharacterized as Capital Leases.
“Capital Stock” shall mean (1) in the case of a corporation, corporate stock, (2) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock, (3) in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited), and (4) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person (it being understood and agreed, for the avoidance of doubt, that “cash-settled phantom appreciation programs” in connection with employee benefits that do not require a dividend or distribution shall not constitute Capital Stock).
“Capitalized Lease Obligation” shall mean, at the time any determination thereof is to be made, the amount of the liability in respect of a Capital Lease that would at such time be required to be capitalized and reflected as a liability on a balance sheet (excluding the footnotes thereto) prepared in accordance with GAAP.
“Capitalized Software Expenditures” shall mean, for any period, the aggregate of all expenditures (whether paid in cash or accrued as liabilities) by Holdings and the Restricted Subsidiaries during such period in respect of purchased software that, in conformity with GAAP, is or is required to be reflected as capitalized costs on the consolidated balance sheet of Holdings and the Restricted Subsidiaries.
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“Cash Collateralize” shall have the meaning provided in Section 3.8(d).
“Cash Equivalents” shall mean:
(1) United States Dollars,
(2) (a) Euros, Pounds Sterling, Canadian Dollars or any national currency of any participating member state in the European Union or (b) local currencies held from time to time in the ordinary course of business,
(3) securities issued or directly and fully and unconditionally guaranteed or insured by the United States government or any country that is a member state of the European Union or any agency or instrumentality thereof the securities of which are unconditionally guaranteed as a full faith and credit obligation of such government with maturities of 24 months or less from the date of acquisition,
(4) certificates of deposit, time deposits and eurodollar time deposits with maturities of one year or less from the date of acquisition, bankers’ acceptances with maturities not exceeding one year and overnight bank deposits, in each case with any commercial bank having capital and surplus of not less than $250,000,000 in the case of U.S. banks and $100,000,000 (or the U.S. dollar equivalent as of the date of determination) in the case of foreign banks,
(5) repurchase obligations for underlying securities of the types described in clauses (3), (4) and (9) entered into with any financial institution meeting the qualifications specified in clause (4) above,
(6) commercial paper rated at least P-2 by Moody’s or at least A-2 by S&P and in each case maturing within 24 months after the date of creation thereof,
(7) marketable short-term money market and similar securities having a rating of at least P-2 or A-2 from either Moody’s or S&P, respectively (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another nationally recognized ratings agency) and in each case maturing within 24 months after the date of creation or acquisition thereof,
(8) readily marketable direct obligations issued by any state, commonwealth or territory of the United States of America or any political subdivision or taxing authority thereof having one of the two highest rating categories obtainable from either Moody’s or S&P with maturities of 24 months or less from the date of acquisition,
(9) Indebtedness or preferred stock issued by Persons with a rating of “A” or higher from S&P or “A2” or higher from Moody’s with maturities of 24 months or less from the date of acquisition,
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(10) solely with respect to any Foreign Subsidiary: (i) obligations of the national government of the country in which such Foreign Subsidiary maintains its chief executive office and principal place of business provided such country is a member of the Organization for Economic Cooperation and Development, in each case maturing within one year after the date of investment therein, (ii) certificates of deposit of, bankers acceptances of, or time deposits with, any commercial bank which is organized and existing under the laws of the country in which such Foreign Subsidiary maintains its chief executive office and principal place of business provided such country is a member of the Organization for Economic Cooperation and Development, and whose short-term commercial paper rating from S&P is at least “A-2” or the equivalent thereof or from Xxxxx’x is at least “P-2” or the equivalent thereof (any such bank being an “Approved Foreign Bank”), and in each case with maturities of not more than 24 months from the date of acquisition and (iii) the equivalent of demand deposit accounts which are maintained with an Approved Foreign Bank, in each case, customarily used by corporations for cash management purposes in any jurisdiction outside the United States to the extent reasonably required in connection with any business conducted by such Foreign Subsidiary organized in such jurisdiction,
(11) in the case of investments by any Foreign Subsidiary or investments made in a country outside the United States of America, Cash Equivalents shall also include investments of the type and maturity described in clauses (1) through (9) above of foreign obligors, which investments have ratings, described in such clauses or equivalent ratings from comparable foreign rating agencies, and
(12) investment funds investing 90% of their assets in securities of the types described in clauses (1) through (9) above.
Notwithstanding the foregoing, Cash Equivalents shall include amounts denominated in currencies other than those set forth in clauses (1) and (2) above; provided that such amounts are converted into any currency listed in clauses (1) and (2) as promptly as practicable and in any event within ten Business Days following the receipt of such amounts.
For the avoidance of doubt, any items identified as Cash Equivalents under this definition will be deemed to be Cash Equivalents for all purposes hereunder and under the other Credit Documents regardless of the treatment of such items under GAAP.
“Cash Management Agreement” shall mean any agreement or arrangement to provide Cash Management Services.
“Cash Management Bank” shall mean (a) any Person that, at the time it enters into a Cash Management Agreement, is an Agent or a Lender or an Affiliate of an Agent or a Lender or (b) with respect to any Cash Management Agreement entered into prior to the Closing Date, any person that is a Lender or an Affiliate of a Lender on the Closing Date.
“Cash Management Services” shall mean (a) commercial credit cards, merchant card services, purchase or debit cards, including non-card e-payables services, (b) treasury management services (including controlled disbursement, overdraft automatic clearing house fund transfer services, return items and interstate depository network services) and (c) any other demand deposit or operating account relationships or other cash management services, including pursuant to any Cash Management Agreements.
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“Casualty Event” shall mean, with respect to any property of any Person, any loss of or damage to, or any condemnation or other taking by a Governmental Authority of, such property for which such Person or any of its Restricted Subsidiaries receives insurance proceeds or proceeds of a condemnation award in respect of any equipment, fixed assets or real property (including any improvements thereon) to replace or repair such equipment, fixed assets or real property.
“CDOR” shall mean, for any day, with respect to a particular Interest Period as specified herein, the higher of (a) the rate per annum determined by the Administrative Agent by reference to the average of the rates displayed on the “Reuters Screen CDOR Page” (as defined in the International Swap Dealer Association, Inc. definitions, as amended from time to time), or such other page as may replace such page on such screen for the purpose of displaying Canadian interbank bid rates for Canadian Dollar bankers’ acceptances applicable to Canadian Dollar bankers’ acceptances (on a three hundred sixty-five (365) day basis) with a term comparable to such Interest Period as of 10:00 A.M. (Eastern time) on the first day of such Interest Period (as adjusted by the Administrative Agent after 10:00 A.M. (Eastern time) to reflect any error in a posted rate or in the posted average annual rate of interest) and (b) 0%. If, for any reason, the rates on the Reuters Screen CDOR Page are unavailable as of such date, then CDOR means the rate of interest reasonably determined by the applicable Agent that is equal to the rate (rounded upwards to the nearest basis point) quoted by the Canadian Reference Bank as its discount rate for purchase of Canadian Dollar bankers’ acceptances in an amount substantially equal to such Eurocurrency Rate Loan denominated in Canadian Dollars (subject to the provisions of Section 2.17 hereof) with a term comparable to such Interest Period as of 10:00 A.M. (Eastern time) as of such date and if such rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement. No adjustment shall be made to account for the difference between the number of days in a year on which the rates referred to in this definition are based and the number of days in a year on the basis of which interest is calculated in this Agreement.
“CFC” shall mean a controlled foreign corporation within the meaning of Section 957(a) of the Code.
“Change in Law” shall mean (a) the adoption of any law, treaty, order, policy, rule or regulation after the Closing Date, (b) any change in any law, treaty, order, policy, rule or regulation or in the interpretation or application thereof by any Governmental Authority after the Closing Date or (c) compliance by any Lender, Letter of Credit Issuer or L/C Participant with any guideline, request, directive or order issued or made after the Closing Date by any central bank or other governmental or quasi-governmental authority (whether or not having the force of law). For purposes of this definition, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, regulations, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines, requirements 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 pursuant to Basel III, shall in each case described in clauses (x) and (y) above be deemed to be a Change in Law and have gone into effect after the date hereof, regardless of the date enacted, adopted, issued or implemented.
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“Change of Control” shall mean and be deemed to have occurred if (a) any person, entity or “group” (within the meaning of Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended), shall at any time have acquired direct or indirect beneficial ownership of a percentage of the voting power of the outstanding Voting Stock of Holdings that exceeds 35% thereof or (b) the ceasing of Holdings to have, directly or indirectly, record or beneficial ownership (within the meaning of Rule 13d-3 of the SEC under the 1934 Act, as then in effect) or control of 100% (on a fully-diluted basis, disregarding any director qualifying share ownership) of the combined voting power or economic benefit of the then outstanding equity interests of the Borrower (or any successor) by operation of law or otherwise, or assign thereof.
“Class” (a) when used in reference to any Loan or Borrowing, shall refer to whether such Loan, or the Loans comprising such Borrowing, are Revolving Credit Loans, Additional Revolving Credit Loans, New Revolving Loans, Initial Term Loans, New Term Loans (of each Series), Extended Term Loans (of the same Extension Series), Extended Revolving Credit Loans (of the same Extension Series) or Swingline Loans and (b) when used in reference to any Commitment, refers to whether such Commitment is a Revolving Credit Commitment, an Additional Revolving Credit Commitment, a New Revolving Credit Commitment, an Extended Revolving Credit Commitment (of the same Extension Series), an Initial Term Loan Commitment or a New Term Loan Commitment.
“Closing Date” shall mean November 1, 2021.
“Closing Date Letters of Credit” shall mean Letters of Credit existing on the Closing Date, Letters of Credit issued after the Closing Date to the extent in replacement of a letter of credit of the Borrower or any of its Subsidiaries existing on the Closing Date, any extensions thereof, replacement Letters of Credit or Letters of Credit issued in lieu thereof, in each case, to the extent the face amount of such Letters of Credit is not increased above the face amount of the Letter of Credit being extended, replaced or substituted; provided that the aggregate principal amount of Closing Date Letters of Credit shall not exceed $3,550,000.00.
“Closing Date Refinancing” shall mean the repayment, repurchase or other discharge of the Existing Credit Agreement Indebtedness in full, the termination of any commitments thereunder and the termination and/or release of any security interests and guarantees in connection therewith.
“Co-Documentation Agents” shall have the meaning as set forth on the cover page to this Agreement.
“Co-Syndication Agents” shall mean Xxxxxxx Xxxxx Bank USA, Bank of America, N.A., Citibank, N.A., Truist Bank, Citizens Bank, N.A., Keybank National Association, Fifth Third Bank, National Association and Regions Bank.
“Code” shall mean the Internal Revenue Code of 1986, as amended from time to time.
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“Collateral” shall mean all property pledged or purported to be pledged pursuant to the Security Documents, excluding in all cases Excluded Property (as defined in the Security Agreement).
“Collateral Agent” shall mean Xxxxx Fargo Bank, National Association, as collateral agent under the Credit Documents, or any successor collateral agent pursuant to Section 12.9, any affiliate or designee of Xxxxx Fargo Bank, National Association may act as Collateral Agent under any Credit Document.
“Commitment Fee” shall have the meaning provided in Section 4.1(a).
“Commitment Fee Rate” shall mean, with respect to the Available Commitment on any day, a rate per annum set forth below opposite the Status in effect on such day:
| Status | Commitment Fee Rate | |||
| Level I Status | 0.300 | % | ||
| Level II Status | 0.250 | % | ||
| Level III Status | 0.200 | % | ||
| Level IV Status | 0.200 | % | ||
| Level V Status | 0.175 | % | ||
| Level VI Status | 0.175 | % | ||
Notwithstanding the foregoing, the term “Commitment Fee Rate” shall mean 0.25% during the period from and including the Closing Date until delivery of financial statements and a related Compliance Certificate for the first full fiscal quarter commencing on or after the Closing Date pursuant to Section 9.1. In addition, at the option of the Required Revolving Credit Lenders, at any time during which the Borrower shall have failed to deliver the Section 9.1 Financials by the date required under Section 9.1, then the applicable Status for the purposes of determining the Commitment Fee Rate shall be Level I Status (but only for so long as such failure continues, after which the Status shall be otherwise as determined as set forth above).
“Commitments” shall mean, with respect to each Lender (to the extent applicable), such Xxxxxx’s Revolving Credit Commitment, New Revolving Credit Commitment, Extended Revolving Credit Commitment, Additional Revolving Credit Commitment, Initial Term Loan Commitment or New Term Loan Commitment.
“Commodities Equity Option Agreement” shall mean an equity option contract purchased by the Borrower or any of its Subsidiaries from a securities intermediary in the ordinary course of business, and not for speculative purposes, as a means to hedge against price fluctuations in the raw materials necessary to the manufacturing or production of goods in connection with the business of the Borrower and its Subsidiaries (it being understood and agreed that the use of open or naked calls shall by definition be deemed speculative).
“Commodities Hedge Agreement” shall mean a commodities contract purchased by the Borrower or any of its Subsidiaries in the ordinary course of business, and not for speculative purposes, with respect to raw materials necessary to the manufacturing or production of goods in connection with the business of the Borrower and its Subsidiaries.
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“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.
“Communications” shall have the meaning provided in Section 13.17.
“Company” shall have the meaning provided in the preamble to this Agreement.
“Company Material Adverse Effect” shall mean “Business Material Adverse Effect” (as defined in the Acquisition Agreement).
“Company Representations” shall mean the representations and warranties made by the Seller with respect to the Company in the Acquisition Agreement as are material to the interests of the Lenders (in their capacities as such), but only to the extent that Holdings (or one of Holdings’ Affiliates) has the right (taking into account any applicable cure provisions) not to consummate the Acquisition, or to terminate its obligations (or otherwise does not have an obligation to close) under the Acquisition Agreement as a result of a failure of such representations and warranties in the Acquisition Agreement to be true and correct.
“Competitor” means any Person that is a bona fide direct competitor of Holdings, the Borrower or any of its Subsidiaries in the same industry or a substantially similar industry which offers a substantially similar product or service as Holdings, the Borrower or any of its Subsidiaries.
“Compliance Certificate” shall have the meaning provided in Section 9.1(d).
“Confidential Information” shall have the meaning provided in Section 13.16.
“Consolidated Depreciation and Amortization Expense” shall mean with respect to any Person for any period, the total amount of depreciation and amortization expense, including the amortization of deferred financing fees or costs, debt issuance costs, commissions, fees and expenses, capitalized expenditures (including Capitalized Software Expenditures, to the extent deducted in obtaining Consolidated Net Income), customer acquisition costs, the amortization of original issue discount resulting from the issuance of Indebtedness at less than par and incentive payments, conversion costs and contract acquisition costs of such Person and its Restricted Subsidiaries for such period on a consolidated basis and otherwise determined in accordance with GAAP.
“Consolidated EBITDA” shall mean, with respect to any Person and its Restricted Subsidiaries on a consolidated basis for any period, the Consolidated Net Income of such Person for such period:
(1) increased (without duplication) by:
(a) provision for taxes based on income or profits or capital, including, without limitation, U.S. federal, state, non-U.S., franchise, excise, value added and similar taxes and foreign withholding taxes of such Person paid or accrued during such period deducted, including any penalties and interest related to such taxes or arising from any tax examinations (and not added back) in computing Consolidated Net Income, plus
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(b) Fixed Charges of such Person for such period (including (1) net costs of maintaining Hedging Obligations or other derivative instruments entered into for the purpose of hedging interest rate risk and (2) net costs of maintaining surety bonds, letters of credit or other similar instruments, in each case, to the extent included in Fixed Charges), together with items excluded from the definition of Consolidated Interest Expense and any non-cash interest expense, in each case to the extent the same were deducted (and not added back) in calculating such Consolidated Net Income, plus
(c) Consolidated Depreciation and Amortization Expense of such Person for such period to the extent the same were deducted (and not added back) in computing Consolidated Net Income, plus
(d) any expenses, fees, charges or losses (other than depreciation or amortization expense) related to any Equity Offering, Permitted Investment, Restricted Payment, surety bonds, acquisition, disposition, recapitalization or the incurrence of Indebtedness permitted to be incurred by this Agreement (including a refinancing thereof) (whether or not successful and including any such transaction consummated prior to the Closing Date), including (i) such fees, expenses or charges related to (x) the incurrence of the Loans hereunder or (y) the issuance of the Mandatory Convertible Offering, the Common Stock Offering and/or the Senior Notes, (ii) such fees, expenses or charges related to the Credit Documents and any other credit facilities or any other debt issuances and (iii) any amendment or other modification of the Loans hereunder, the Senior Notes or any other Indebtedness, and, in each case, deducted (and not added back) in computing Consolidated Net Income, plus
(e) any other non-cash charges, including any write offs, write downs, expenses, losses or items to the extent the same were deducted (and not added back) in computing Consolidated Net Income (provided that if any such non-cash charges represent an accrual or reserve for potential cash items in any future period, the cash payment in respect thereof in such future period shall be deducted from Consolidated EBITDA to such extent, and excluding amortization of a prepaid cash item that was paid in a prior period), plus
(f) the amount of any minority interest expense consisting of Subsidiary income attributable to minority equity interests of third parties in any non-wholly owned Subsidiary deducted (and not added back) in such period in calculating Consolidated Net Income, plus
(g) net costs of maintaining surety bonds, letters or credit or other similar instruments incurred in such period, in each case, to the extent the same were deducted (and not added back) in calculating such Consolidated Net Income, plus
(h) the amount of “run-rate” cost savings, operating expense reductions, operating enhancements and other synergies (collectively, “Synergies”) related to (1) the Transactions and (2) any permitted Pro Forma Event, in each case net of the amount of actual benefits realized prior to or during such period from such actions (which Synergies shall be calculated as if such Synergies had been realized on the first day of such period); provided that, in the case of clauses (1) and (2) above, such Synergies are projected by the Borrower in good faith to result from actions either taken or expected to be taken within 30 months of the determination to take such action (including actions initiated prior to the Closing Date); provided that such Synergies are reasonably identifiable and factually supportable; provided, further, that the aggregate amount of Synergies added back pursuant to clause (2) above, when combined with adjustments and addbacks pursuant to the definition of “Pro Forma Adjustment” shall not exceed 25% of Consolidated EBITDA in any Test Period (calculated after giving effect to any such addbacks or adjustments), plus
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(i) any costs or expense incurred by Holdings or a Restricted Subsidiary pursuant to any management equity plan or stock option plan or phantom equity plan or any other management or employee benefit plan or agreement or any stock subscription or shareholder agreement, to the extent that such cost or expenses are funded with cash proceeds contributed to the capital of Holdings or net cash proceeds of an issuance of Equity Interest of Holdings (other than Disqualified Stock), plus
(j) the amount of expenses relating to payments made to option, phantom equity or profits interest holders of Holdings or any of its any direct or indirect subsidiaries or parent companies in connection with, or as a result of, any distribution being made to equity holders of such Person or its direct or indirect parent companies, which payments are being made to compensate such option, phantom equity or profits interest holders as though they were equity holders at the time of, and entitled to share in, such distribution, in each case to the extent permitted under this Agreement and expenses relating to distributions made to equity holders of such Person or its direct or indirect parent companies resulting from the application of Financial Accounting Standards Codification Topic 718— Compensation – Stock Compensation (formerly Financial Accounting Standards Board Statement No. 123 (Revised 2004)) in each case to the extent the same were deducted (and not added back) in calculating such Consolidated Net Income, plus
(k) costs associated with compliance with the requirements of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated in connection therewith and Public Company Costs, plus
(l) cash receipts (or any netting arrangements resulting in reduced cash expenses) not included in Consolidated EBITDA in any period solely to the extent that the corresponding non-cash gains relating to such receipts were deducted in the calculation of Consolidated EBITDA pursuant to paragraph (2) below for any previous period and not added back, plus
(m) to the extent not already included in the Consolidated Net Income, (i) any expenses and charges that are reimbursed by indemnification or other similar provisions in connection with any investment or any sale, conveyance, transfer or other Asset Sale of assets permitted hereunder and (ii) to the extent covered by insurance and actually reimbursed, or, so long as the Borrower has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed by the insurer and only to the extent that such amount is (A) not denied by the applicable carrier in writing within 180 days and (B) in fact reimbursed within 365 days of the date of such evidence (with a deduction for any amount so added back to the extent not so reimbursed within such 365 days), expenses with respect to liability or casualty events or business interruption; plus
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(n) add-backs and adjustments of the type or nature reflected in the Lender Presentation; plus
(o) any net pension or other post-employment benefit costs representing amortization of unrecognized prior service costs, actuarial losses, including amortization of such amounts arising in prior periods, amortization of the unrecognized net obligation (and loss or cost) existing at the date of initial application of FASB Accounting Standards Codification Topic 715—Compensation—Retirement Benefits, and any other items of a similar nature, plus
(p) adjustments consistent with Regulation S-X or of the type or nature contained in any quality of earnings report made available to the Administrative Agent after the Closing Date conducted by financial advisors (which are either nationally recognized or reasonably acceptable to the Administrative Agent (it being understood and agreed that any of the “Big Four” accounting firms are acceptable));
(2) decreased by (without duplication) non-cash gains increasing Consolidated Net Income of such Person for such period, excluding any non-cash gains which represent the reversal of any accrual of, or cash reserve for, anticipated cash charges that reduced Consolidated EBITDA in any prior period other than non-cash gains relating to the application of Financial Accounting Standards Codification Topic 840 - Leases (formerly Financial Accounting Standards Board Statement No. 13); provided that, to the extent non cash gains are deducted pursuant to this clause (2) for any previous period and not otherwise added back to Consolidated EBITDA, Consolidated EBITDA shall be increased by the amount of any cash receipts (or any netting arrangements resulting in reduced cash expenses) in respect of such non cash gains received in subsequent periods to the extent not already included therein, plus
(3) increased or decreased by (without duplication):
(a) any net gain or loss resulting in such period from currency gains or losses related to Indebtedness, intercompany balances and other balance sheet items, plus or minus, as the case may be, and
(b) any net gain or loss resulting in such period from Hedging Obligations, and the application of Financial Accounting Standards Codification Topic 815— Derivatives and Hedging (ASC 815) (formerly Financing Accounting Standards Board Statement No. 133), and its related pronouncements and interpretations, or the equivalent accounting standard under GAAP or an alternative basis of accounting applied in lieu of GAAP.
For the avoidance of doubt:
(i) to the extent included in Consolidated Net Income, there shall be excluded in determining Consolidated EBITDA for any period any adjustments resulting from the application of Statement of ASC 815 and its related pronouncements and interpretations, or the equivalent accounting standard under GAAP or an alternative basis of accounting applied in lieu of GAAP,
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(ii) there shall be included in determining Consolidated EBITDA for any period, without duplication, (A) the Acquired EBITDA of any Person or business, or attributable to any property or asset acquired by Holdings or any Restricted Subsidiary during such period (but not the Acquired EBITDA of any related Person or business or any Acquired EBITDA attributable to any assets or property, in each case to the extent not so acquired) to the extent not subsequently sold, transferred, abandoned or otherwise disposed by Holdings or such Restricted Subsidiary during such period (each such Person, business, property or asset acquired and not subsequently so disposed of, an “Acquired Entity or Business”) and the Acquired EBITDA of any Unrestricted Subsidiary that is converted into a Restricted Subsidiary during such period (each, a “Converted Restricted Subsidiary”), based on the actual Acquired EBITDA of such Acquired Entity or Business or Converted Restricted Subsidiary for such period (including the portion thereof occurring prior to such acquisition or conversion) and (B) an adjustment in respect of each Acquired Entity or Business equal to the amount of the Pro Forma Adjustment with respect to such Acquired Entity or Business for such period (including the portion thereof occurring prior to such acquisition), and
(iii) to the extent included in Consolidated Net Income, there shall be excluded in determining Consolidated EBITDA for any period the Disposed EBITDA of any Person, property, business or asset sold, transferred, abandoned or otherwise disposed of, closed or classified as discontinued operations by Holdings or any Restricted Subsidiary during such period (each such Person, property, business or asset so sold or disposed of, a “Sold Entity or Business”), and the Disposed EBITDA of any Restricted Subsidiary that is converted into an Unrestricted Subsidiary during such period (each, a “Converted Unrestricted Subsidiary”) based on the actual Disposed EBITDA of such Sold Entity or Business or Converted Unrestricted Subsidiary for such period (including the portion thereof occurring prior to such sale, transfer or disposition or conversion); provided that for the avoidance of doubt, notwithstanding any classification under GAAP of any Person or business in respect of which a definitive agreement for the disposition thereof has been entered into as discontinued operations, the Disposed EBITDA of such Person or business shall not be excluded pursuant to this paragraph until such disposition shall have been consummated.
“Consolidated Interest Coverage Ratio” shall mean, as of any date of determination, the ratio of (a) Consolidated EBITDA of Holdings for the Test Period then last ended to (b) Consolidated Interest Expense of Holdings for the Test Period then last ended.
“Consolidated Interest Expense” shall mean, with respect to any Person for any period, the sum, without duplication, of cash interest expense (including that attributable to Capitalized Lease Obligations to the extent paid in cash) of such Person for such period to the extent such expense was deducted (and not added back) in computing Consolidated Net Income, net of cash interest income of such Person and its Restricted Subsidiaries with respect to all outstanding Indebtedness of such Person and its Restricted Subsidiaries, but excluding, for the avoidance of doubt, (a) amortization of deferred financing costs, debt issuance costs, commissions, fees and expenses and any other amounts of non-cash interest (including as a result of the effects of acquisition method accounting or pushdown accounting), (b) non-cash interest expense attributable to the movement of the mark-to-market valuation of Indebtedness or obligations under Hedging Obligations or other derivative instruments pursuant to FASB Accounting Standards Codification Topic 815—Derivatives and Hedging, (c) any one-time cash costs associated with breakage in respect of hedging agreements for interest rates, (d) any “additional interest” owing pursuant to a registration rights agreement with respect to any securities, (e) any payments with respect to make-whole premiums or other breakage costs of any Indebtedness, including, without limitation, any Indebtedness issued in connection with the Transactions, (f) penalties and interest relating to taxes, (g) accretion or accrual of discounted liabilities not constituting Indebtedness, (h) interest expense attributable to a direct or indirect parent entity resulting from push-down accounting, (i) any expense resulting from the discounting of Indebtedness in connection with the application of recapitalization or purchase accounting, (j) any interest expense attributable to the exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential), with respect thereto and with respect to the Transactions, any acquisition or Investment permitted hereunder, all as calculated on a consolidated basis, (k) any non-cash expensing of bridge, commitment and other financing fees that have been previously paid in cash, but solely to the extent not reducing consolidated cash interest expense in any prior period and (l) dividends or distributions paid in cash in respect of any Disqualified Stock or Designated Preferred Stock.
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For purposes of this definition, interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by such Person to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP.
“Consolidated Net Income” shall mean, with respect to any Person for any period, the aggregate of the Net Income of such Person and its Restricted Subsidiaries for such period, on a consolidated basis, and on an after-tax basis to the extent appropriate, and otherwise determined in accordance with GAAP; provided that, without duplication,
(1) extraordinary, non-recurring, unusual, special or infrequent gains or losses (less all fees and expenses relating thereto) or expenses (including any extraordinary, non-recurring, unusual, special or infrequent operating expenses directly attributable to the implementation of cost savings initiatives and any accruals or reserves in respect of any extraordinary, non-recurring, unusual, special or infrequent items), severance, relocation costs, integration and facilities’ or bases’ opening costs and other business optimization expenses (including related to new product introductions and other strategic or cost savings initiatives), restructuring charges, accruals or reserves (including restructuring and integration costs related to acquisitions and adjustments to existing reserves), whether or not classified as restructuring expense on consolidated financial statements, signing costs, retention or completion bonuses, other executive recruiting and retention costs, transition costs, costs related to closure/consolidation of facilities or bases and curtailments or modifications to pension and post retirement employee benefit plans (including any settlement of pension liabilities and charges resulting from changes in estimates, valuations and judgments), shall be excluded,
(2) the Net Income for such period shall not include the cumulative effect of a change in accounting principles and changes as a result of the adoption or modification of accounting policies during such period,
(3) any gain (loss) (less all fees and expenses relating thereto) on asset sales, disposals or abandonments (other than asset sales, disposals or abandonments in the ordinary course of business) or discontinued operations (but if such operations are classified as discontinued due to the fact that they are subject to an agreement to dispose of such operations, only when and to the extent such operations are actually disposed of), shall be excluded,
(4) any after-tax effect of gains or losses (less all fees and expenses relating thereto) attributable to asset dispositions or abandonments other than in the ordinary course of business, as determined in good faith by the board of directors of Holdings, shall be excluded,
(5) the Net Income for such period of any Person that is not a Subsidiary, or is an Unrestricted Subsidiary, or that is accounted for by the equity method of accounting, shall be excluded; provided that Consolidated Net Income of Holdings shall be increased by the amount of dividends or distributions or other payments that are actually paid in cash (or to the extent converted into cash or Cash Equivalents) to the referent Person or a Restricted Subsidiary thereof in respect of such period,
(6) the Net Income for such period of any Restricted Subsidiary (other than any Guarantor) shall be excluded to the extent the declaration or payment of dividends or similar distributions by that Restricted Subsidiary of its Net Income is not at the date of determination permitted without any prior governmental approval (which has not been obtained) or, directly or indirectly, by the operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule, or governmental regulation applicable to that Restricted Subsidiary or its stockholders, unless such restriction with respect to the payment of dividends or similar distributions (a) has been legally waived, or otherwise released, (b) is imposed pursuant to this Agreement and the other Credit Documents, the Senior Notes or any other Indebtedness not prohibited hereunder or (c) arises pursuant to an agreement or instrument if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Secured Parties than the encumbrances and restrictions contained in the Credit Documents (as determined by the Borrower in good faith); provided that Consolidated Net Income of the referent Person will be increased by the amount of dividends or other distributions or other payments actually paid in cash (or to the extent converted into cash) or Cash Equivalents (or to the extent converted into Cash Equivalents) to such Person or a Restricted Subsidiary in respect of such period, to the extent not already included therein,
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(7) effects of adjustments (including the effects of such adjustments pushed down to Holdings and its Restricted Subsidiaries) in any line item in such Person’s consolidated financial statements required or permitted by Financial Accounting Standards Codification Topic 805 and Topic 350 - Intangibles-Goodwill and Other (ASC 805 and 350) (formerly Financial Accounting Standards Board Statement Nos. 141 and 142, respectively) resulting from the application of purchase accounting, including in relation to the Transactions and any acquisition that is consummated after the Closing Date or the amortization or write-off of any amounts thereof, net of taxes, shall be excluded,
(8) (i) any effect of income (loss) from the early extinguishment of Indebtedness or Hedging Obligations or other derivative instruments (including deferred financing costs written off and premiums paid), (ii) any non-cash income (or loss) related to currency gains or losses related to Indebtedness, intercompany balances and other balance sheet items and to Hedging Obligations pursuant to ASC 815 (or such successor provision) and (iii) any non-cash expense, income or loss attributable to the movement in mark to market valuation of foreign currencies, Indebtedness or derivative instruments pursuant to GAAP, shall be excluded,
(9) any impairment charge, asset write off, or write down pursuant to ASC 350 and Financial Accounting Standards Codification Topic 360 – Impairment and Disposal of Long Lived Assets (ASC 360) (formerly Financial Accounting Standards Board Statement No. 144) and the amortization of intangibles arising pursuant to ASC 805 shall be excluded,
(10) (i) any non-cash compensation expense recorded from or in connection with any share-based compensation arrangements, including stock appreciation or similar rights, phantom equity, stock options, units, restricted stock, capital or profits interests or other rights to officers, directors, managers or employees and (ii) non-cash income (loss) attributable to deferred compensation plans or trusts, shall be excluded,
(11) any fees and expenses incurred during such period, or any amortization thereof for such period, in connection with any acquisition, Investment, recapitalization, Asset Sale, issuance or repayment of Indebtedness, issuance of Equity Interests, refinancing transaction or amendment or modification of any debt instrument (in each case, including any such transaction consummated prior to the Closing Date and any such transaction undertaken but not completed) and any charges or non-recurring merger costs incurred during such period as a result of any such transaction shall be excluded,
(12) accruals and reserves (including contingent liabilities) that are established or adjusted within twelve months after the Closing Date that are so required to be established as a result of the Transactions in accordance with GAAP, or changes as a result of adoption or modification of accounting policies, shall be excluded,
(13) to the extent covered by insurance or indemnification and actually reimbursed, or, so long as Holdings has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed by the insurer or indemnifying party and only to the extent that such amount is (a) not denied by the applicable carrier or indemnifying party in writing within 180 days and (b) in fact reimbursed within 365 days of the date of determination by Holdings that there exists such evidence (with a deduction for any amount so added back to the extent not so reimbursed within 365 days), losses and expenses with respect to liability or casualty events or business interruption shall be excluded,
(14) any deferred tax expense associated with tax deductions or net operating losses arising as a result of the Transactions, or the release of any valuation allowance related to such items, shall be excluded, and
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(15) any costs or expenses incurred during such period relating to environmental remediation, litigation or other disputes in respect of events and exposures that occurred prior to the Closing Date shall be excluded.
“Consolidated Senior Secured Debt” shall mean, as of any date of determination, Consolidated Total Debt as of such date that is secured by a Lien on any of the Collateral.
“Consolidated Senior Secured Debt to Consolidated EBITDA Ratio” shall mean, as of any date of determination, the ratio of (i) Consolidated Senior Secured Debt as of such date of determination, minus unrestricted cash and Cash Equivalents (in each case, free and clear of all Liens other than Permitted Liens and, for the avoidance of doubt, cash and Cash Equivalents subject to a Permitted Lien shall be deemed to be unrestricted for purposes of calculating the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio) to (ii) Consolidated EBITDA for the Test Period most recently ended on or prior to such date of determination, in each case with such pro forma adjustments to Consolidated Senior Secured Debt and Consolidated EBITDA as are appropriate and consistent with the definition of “Pro Forma Adjustment”.
“Consolidated Total Assets” shall mean, as of any date of determination, the amount that would, in conformity with GAAP, be set forth opposite the caption “total assets” (or any like caption) on the most recent consolidated balance sheet of Holdings and the Restricted Subsidiaries at such date.
“Consolidated Total Debt” shall mean, as at any date of determination, an amount equal to the sum of the aggregate amount of all outstanding Indebtedness of Holdings and the Restricted Subsidiaries on a consolidated basis consisting solely of Indebtedness for borrowed money, Capitalized Lease Obligations, purchase money Indebtedness and debt obligations evidenced by promissory notes and similar instruments (and excluding, for the avoidance of doubt, Hedging Obligations); provided that Consolidated Total Debt shall not include (i) Letters of Credit, except to the extent of Unpaid Drawings (provided, any Unpaid Drawings will not be counted as Consolidated Total Debt until five (5) Business Days after such amount was drawn), (ii) performance or surety bonds or any similar instruments until drawn or otherwise becoming due and payable or becoming a liability on the balance sheet in accordance with GAAP, (iii) indebtedness arising from any Cash Management Services and (iv) the Mandatory Convertible Offering.
“Consolidated Total Debt to Consolidated EBITDA Ratio” shall mean, as of any date of determination, the ratio of (i) Consolidated Total Debt as of such date of determination, minus unrestricted cash and Cash Equivalents (in each case, free and clear of all Liens other than Permitted Liens and, for the avoidance of doubt, cash and Cash Equivalents subject to a Permitted Lien shall be deemed to be unrestricted for purposes of calculating the Consolidated Total Debt to Consolidated EBITDA Ratio) to (ii) Consolidated EBITDA for the Test Period most recently ended on or prior to such date of determination, in each case with such pro forma adjustments to Consolidated Total Debt and Consolidated EBITDA as are appropriate and consistent with the definition of “Pro Forma Adjustment”.
“Contingent Obligations” shall mean, with respect to any Person, any obligation of such Person guaranteeing any leases, dividends or other obligations that do not constitute Indebtedness (“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including, without limitation, any obligation of such Person, whether or not contingent, (1) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (2) to advance or supply funds (A) for the purchase or payment of any such primary obligation or (B) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, or (3) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation against loss in respect thereof.
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“Contractual Requirement” shall have the meaning provided in Section 8.3.
“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.
“Converted Restricted Subsidiary” shall have the meaning provided in the definition of the term “Consolidated EBITDA”.
“Converted Unrestricted Subsidiary” shall have the meaning provided in the definition of the term “Consolidated EBITDA”.
“Covered Entity” shall have the meaning provided in Section 13.23.
“Covered Party” shall have the meaning provided in Section 13.23.
“Credit Documents” shall mean this Agreement, the Guarantees, the Security Documents and any promissory notes issued by the Borrower hereunder.
“Credit Event” shall mean and include the making (but not the conversion or continuation) of a Loan and the issuance of a Letter of Credit.
“Credit Facilities” shall mean, collectively, each category of Commitments and each extension of credit hereunder.
“Credit Facility” shall mean a category of Commitments and extensions of credit thereunder.
“Credit Party” shall mean Holdings, the Borrower and the Guarantors.
“Cure Amount” shall have the meaning provided in Section 11.14.
“Cure Right” shall have the meaning provided in Section 11.14.
“Daily Simple RFR”
means, for any day (an “RFR Rate Day”), a rate per annum equal to, for any Obligations, interest, fees, commissions
or other amounts denominated in, or calculated with respect to, (a) Dollars, on and after the USD LIBOR
Transition Date, the greater of (i) Spread Adjusted SOFR for the day (such day, an “RFR Determination Day”)
that is five (5) RFR Business Days prior to (A) if such RFR Rate Day is an RFR Business Day, such RFR Rate Day or (B) if such RFR Rate
Day is not an RFR Business Day, the RFR Business Day immediately preceding such RFR Rate Day, in each case, utilizing the SOFR component
of such Spread Adjusted SOFR that is published by the SOFR Administrator on the SOFR Administrator’s Website, and (ii) the Floor,[reserved],
(b) Pounds Sterling, the greater of (i) XXXXX for the day (such day, an “RFR Determination Day”) that is
five (5) Business Days prior to (A) if such RFR Rate Day is an RFR Business Day, such RFR Rate Day or (B) if such RFR Rate Day is not
an Business Day, the Business Day immediately preceding such RFR Rate Day, in each case, as such XXXXX is published by the XXXXX Administrator
on the XXXXX Administrator’s Website, and (ii) the Floor, and (c) Swiss Francs, the greater of (i) SARON for the day (such day,
an “RFR Determination Day”) that is five (5) RFR Business Days prior to (A) if such RFR Rate Day is an RFR Business
Day, such RFR Rate Day or (B) if such RFR Rate Day is not an RFR Business Day, the RFR Business Day immediately preceding such RFR Rate
Day, in each case, as such SARON is published by the SARON Administrator on the SARON Administrator’s Website and (ii) the Floor.
If by 5:00 pm (local time for the applicable RFR) on the second (2nd) RFR Business Day immediately following any RFR Determination
Day, the RFR in respect of such RFR Determination Day has not been published on the applicable RFR Administrator’s Website and
a Benchmark Replacement Date with respect to the applicable Daily Simple RFR has not occurred, then the RFR for such RFR Determination
Day will be the RFR as published in respect of the first preceding RFR Business Day for which such RFR was published on the RFR Administrator’s
Website; provided that any RFR determined pursuant to this sentence shall be utilized for purposes of calculation of Daily Simple
RFR for no more than three (3) consecutive RFR Rate Days. Any change in Daily Simple RFR due to a change in the applicable RFR shall
be effective from and including the effective date of such change in the RFR without notice to the Borrower.
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“Daily Simple RFR Loan” means a Loan that bears interest at a rate based on Daily Simple RFR other than pursuant to clause (c) of the definition of “ABR”
“Debt Incurrence Prepayment Event” shall mean any issuance or incurrence by Holdings or any of the Restricted Subsidiaries of any Indebtedness (excluding any Indebtedness permitted to be issued or incurred under Section 10.1 (other than Refinancing Indebtedness)).
“Default” shall mean any event, act or condition that with notice or lapse of time, or both, would constitute an Event of Default.
“Default Rate” shall have the meaning provided in Section 2.8(c).
“Default Right” shall have the meaning provided in Section 13.23.
“Defaulting Lender” shall mean any Lender whose acts or failure to act, whether directly or indirectly, cause it to meet any part of the definition of “Lender Default”.
“Deferred Net Cash Proceeds” shall have the meaning provided such term in the definition of “Net Cash Proceeds”.
“Deferred Net Cash Proceeds Payment Date” shall have the meaning provided such term in the definition of “Net Cash Proceeds”.
“Designated Non-Cash Consideration” shall mean the Fair Market Value of non-cash consideration received by Holdings or a Restricted Subsidiary in connection with an Asset Sale that is so designated as Designated Non-Cash Consideration pursuant to a certificate of an Authorized Officer of Holdings, executed by either a senior vice president or the principal financial officer of Holdings, less the amount of cash or Cash Equivalents received in connection with a subsequent sale of or collection on such Designated Non-Cash Consideration.
“Designated Preferred Stock” shall mean preferred stock of Holdings or any direct or indirect parent company of Holdings (in each case other than Disqualified Stock) that is issued for cash (other than to a Restricted Subsidiary or an employee stock ownership plan or trust established by Holdings or any of its Subsidiaries) and is so designated as Designated Preferred Stock, pursuant to an officers’ certificate executed by the principal financial officer of Holdings or the parent company thereof, as the case may be, on the issuance date thereof. For the avoidance of doubt, the Mandatory Convertible Offering is hereby designated as Designated Preferred Stock pursuant to this definition and the Mandatory Convertible Offering constitutes Designated Preferred Stock for all purposes hereunder.
“Disposed EBITDA” shall mean, with respect to any Sold Entity or Business or any Converted Unrestricted Subsidiary for any period, the amount for such period of Consolidated EBITDA of such Sold Entity or Business or Converted Unrestricted Subsidiary (determined as if references to Holdings and the Restricted Subsidiaries in the definition of Consolidated EBITDA were references to such Sold Entity or Business or Converted Unrestricted Subsidiary and its respective Subsidiaries), all as determined on a consolidated basis for such Sold Entity or Business or Converted Unrestricted Subsidiary, as the case may be.
“Disqualified Lenders” shall mean, certain banks, financial institutions and other institutional lenders and investors (a) identified in writing to the Administrative Agent and the Joint Lead Arrangers and Bookrunners on or prior to October 14, 2021, (b) Competitors of Holdings and its Subsidiaries that have been separately identified in writing to the Administrative Agent on or prior to October 14, 2021 (which such notice shall specify such Person by exact legal name), and from time to time following the Closing Date, and (c) in the case of each of clauses (a) and (b) of this definition, any of their Affiliates that are either (I) identified to the Administrative Agent in writing or (II) clearly identifiable on the basis of such Affiliate’s name; provided that “Disqualified Lenders” shall exclude any Person that Holdings has identified as no longer being a “Disqualified Lender” by written notice delivered to the Administrative Agent from time to time; provided, further, that any bona fide debt fund or investment vehicle that is engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of business which is managed, sponsored or advised by any Person Controlling, Controlled by or under common Control with such Competitor or its Controlling owner and for which no personnel involved with the competitive activities of such Competitor or Controlling owner (i) makes any investment decisions for such debt fund or (ii) has access to any confidential information (other than publicly available information) relating to Holdings and its Subsidiaries shall be deemed not to be a Competitor of Holdings or any of its Subsidiaries.
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“Disqualified Stock” shall mean, with respect to any Person, any Capital Stock of such Person which, by its terms, or by the terms of any security into which it is convertible or for which it is putable or exchangeable, or upon the happening of any event, matures or is mandatorily redeemable (other than solely for Qualified Stock), other than as a result of a change of control, asset sale or similar event, pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof (other than solely for Qualified Stock), other than as a result of a change of control, asset sale or similar event, in whole or in part, in each case, prior to the date that is 91 days after the Latest Maturity Date hereunder; provided that if such Capital Stock is issued to any plan for the benefit of employees of Holdings 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 Holdings or its Subsidiaries in order to satisfy applicable statutory or regulatory obligations. For the avoidance of doubt, the Mandatory Convertible Offering does not constitute Disqualified Stock for any purpose hereunder.
“Distressed Person” shall have the meaning provided in the definition of “Lender-Related Distress Event.”
“Division” shall have the meaning assigned to such term in Section 1.8.
“Dollar Equivalent” shall mean, at any time, (a) with respect to any amount denominated in Dollars, such amount, and (b) with respect to any amount denominated in any currency other than Dollars, the equivalent amount thereof in Dollars as determined by the Administrative Agent or the Letter of Credit Issuer, as the case may be, on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date or other relevant date of determination) for the purchase of Dollars with such currency.
“Dollars” and “$” shall mean dollars in lawful currency of the United States of America.
“Domestic Foreign Holdco” shall mean any Subsidiary substantially all of the assets of which consist of Capital Stock and/or Indebtedness of one or more Subsidiaries that are CFCs and/or other Domestic Foreign Holdcos.
“Domestic Subsidiary” shall mean each Subsidiary of the Borrower that is organized under the laws of the United States, any state thereof, or the District of Columbia.
“Drawing” shall have the meaning provided in Section 3.4(b).
“Early
Opt-in Effective Date” means, with respect to any Early Opt-in Election, the sixth (6th) Business Day after the date
notice of such Early Opt-in Election is provided to the Lenders, so long as the Administrative Agent has not received, by 5:00 p.m. on
the fifth (5th) Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, written notice
of objection to such Early Opt-in Election from Lenders comprising the Required Lenders.
“Early
Opt-in Election” means the occurrence of: (a) a notification by the Administrative Agent to (or the request by the Borrower
to the Administrative Agent to notify) each of the other parties hereto that at least five currently outstanding Dollar-denominated syndicated
credit facilities at such time contain (as a result of amendment or as originally executed) a SOFR-based rate (including SOFR, a term
SOFR or any other rate based upon SOFR) as a benchmark rate (and such syndicated credit facilities are identified in such notice and are
publicly available for review), and (b) the joint election by the Administrative Agent and the Borrower to trigger a fallback from the
Adjusted Eurocurrency Rate for Dollars and the provision by the Administrative Agent of written notice of such election to the Lenders.
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“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Environmental Claims” shall mean any and all actions, suits, orders, decrees, demand letters, claims, notices of noncompliance or potential responsibility or violation or proceedings pursuant to any Environmental Law or any permit issued, or any approval given, under any such Environmental Law, including, without limitation, (i) by governmental or regulatory authorities for enforcement, cleanup, removal, response, remedial or other actions or damages and (ii) by governmental or regulatory authorities or any third party seeking damages, contribution, indemnification, cost recovery, compensation or injunctive relief relating to the presence Release or threatened Release of Hazardous Materials or arising from alleged injury or threat of injury to health or safety (to the extent relating to human exposure to Hazardous Materials), or the environment including, without limitation, ambient air, indoor air, surface water, groundwater, soil, land surface and subsurface strata and natural resources such as wetlands.
“Environmental Law” shall mean any applicable federal, state, foreign or local statute, law, rule, regulation, ordinance, code and rule of common law now or hereafter in effect and in each case as amended, and any binding judicial or administrative interpretation thereof, including any binding judicial or administrative order, consent decree or judgment, relating to pollution or protection of the environment, including, without limitation, ambient air, indoor air, surface water, groundwater, soil, land surface and subsurface strata and natural resources such as flora, fauna or wetlands, or protection of human health or safety (to the extent relating to human exposure to Hazardous Materials) and including those relating to Hazardous Materials.
“Equity Interest” shall mean Capital Stock and all warrants, options or other rights to acquire Capital Stock, but excluding any debt security that is convertible into, or exchangeable for, Capital Stock.
“Equity Offering” shall mean any public or private sale of common stock or preferred stock of Holdings or any direct or indirect parent company of Holdings (excluding Disqualified Stock), other than: (a) public offerings with respect to the Borrower or any of its direct or indirect parent company’s (including Holdings) common stock registered on Form S-8, (b) issuances to any Subsidiary of Holdings, (c) any such public or private sale that constitutes an Excluded Contribution and (d) any Cure Amount.
“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time, and the rules and regulations promulgated thereunder.
“ERISA Affiliate” shall mean any trade or business (whether or not incorporated) that, together with any Credit Party, is treated as a single employer under Section 414 (b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).
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“ERISA Event” shall mean (a) the failure of any Plan to comply with any provisions of ERISA and/or the Code (and applicable regulations under either) or with the terms of such Plan; (b) the existence with respect to any Plan of a non-exempt Prohibited Transaction; (c) any Reportable Event; (d) the failure of any Credit Party or ERISA Affiliate to make by its due date a required installment under Section 430(j) of the Code with respect to any Pension Plan or any failure by any Pension Plan to satisfy the minimum funding standards (within the meaning of Section 412 of the Code or Section 302 of ERISA) applicable to such Pension Plan, whether or not waived; (e) a determination that any Pension Plan is in “at risk” status (within the meaning of Section 430 of the Code or Section 303 of ERISA); (f) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Pension Plan; (g) the occurrence of any event or condition which could reasonably be expected to constitute grounds under ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or the incurrence by any Credit Party or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Pension Plan, including but not limited to the imposition of any Lien in favor of the PBGC or any Pension Plan; (h) the receipt by any Credit Party or any of its ERISA Affiliates from the PBGC or a plan administrator of any notice to terminate any Pension Plan or to appoint a trustee to administer any Pension Plan under Section 4042 of ERISA; (i) the failure by any Credit Party or any of its ERISA Affiliates to make any required contribution to a Multiemployer Plan; (j) the incurrence by any Credit Party or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Pension Plan (or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA) or Multiemployer Plan; (k) the receipt by any Credit Party or any of its ERISA Affiliates of any notice, or the receipt by any Multiemployer Plan from a Credit Party 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, in “endangered” or “critical” status (within the meaning of Section 432 of the Code or Section 305 of ERISA), or terminated (within the meaning of Section 4041A of ERISA); or (l) the failure by any Credit Party or any of its ERISA Affiliates to pay when due (after expiration of any applicable grace period) any installment payment with respect to withdrawal liability under Section 4201 of ERISA.
“Erroneous Payment” has the meaning assigned to it in Section 12.13(a).
“Erroneous Payment Deficiency Assignment” has the meaning assigned to it in Section 12.13(d).
“Erroneous Payment Impacted Class” has the meaning assigned to it in Section 12.13(d).
“Erroneous Payment Return Deficiency” has the meaning assigned to it in Section 12.13(d).
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
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“EURIBOR” has the meaning assigned thereto in the definition of “Eurocurrency Rate”.
“EURIBOR Rate” has the meaning assigned thereto in the definition of “Eurocurrency Rate”.
“Euro” shall mean the single currency of the Participating Member States.
“Eurocurrency Banking
Day” means, (i) for Obligations, interest, fees, commissions or other amounts denominated in,
or calculated with respect to, Dollars, a London Business Day and (ii) for Obligations, interest, fees, commissions or
other amounts denominated in, or calculated with respect to, Euros, a TARGET Day; provided, that for purposes of notice requirements
in Sections 2.3(a), 2.3(b), 2.06(a) and 5.1, in each case, such day is also a Business Day.
“Eurocurrency Rate” means
(a) for any Eurocurrency Rate Loan for any Interest Period:
(i)
denominated in Dollars, the greater of (A) the rate of interest per annum equal to the London interbank offered rate for deposits
in Dollars (“USD LIBOR”) as administered by the IBA, or a comparable or successor administrator approved by the Administrative
Agent, for a period equal to the applicable Interest Period (in each case, the “USD LIBOR Rate”),
at approximately 11:00 a.m. (London time) on the Rate Determination Date; and (B) the Floor;
(i) [reserved];
(ii) denominated in Euros, the greater of (A) the rate of interest per annum equal to the Euro Interbank Offered Rate (“EURIBOR”) as administered by the European Money Markets Institute, or a comparable or successor administrator approved by the Administrative Agent (in each case, the “EURIBOR Rate”), at approximately 11:00 a.m. (Brussels time) on the Rate Determination Date and (B) the Floor; and
(iii) denominated in Canadian Dollars, (A) CDOR determined in accordance with the definition thereof, and (B) the Floor; and
(iv) denominated in any other Agreed Currency (other than an Agreed Currency referenced in clauses (i) through (iii) above, Swiss Francs or Pounds Sterling), the rate designated with respect to such Agreed Currency at the time such currency is approved by the Administrative Agent and the Lenders pursuant to Section 1.9.
(b) for any rate calculation with respect to an ABR Loan on any date, the rate of interest per annum determined on the basis of the rate for deposits in Dollars for a period of approximately one month as published by the IBA, or a comparable or successor quoting service approved by the Administrative Agent, at approximately 11:00 a.m. (London time) two (2) Eurocurrency Banking Days prior to the date of such calculation.
“Eurocurrency Rate Loan” means any Loan bearing interest at a rate based on the Adjusted Eurocurrency Rate other than pursuant to clause (c) of the definition of “ABR”.
“Eurocurrency Reserve Percentage” means, for any day, the percentage which is in effect for such day as prescribed by the FRB for determining the maximum reserve requirement (including any basic, supplemental or emergency reserves) in respect of eurocurrency liabilities or any similar category of liabilities for a member bank of the Federal Reserve System in New York City or any other reserve ratio or analogous requirement of any central banking or financial regulatory authority imposed in respect of the maintenance of the Commitments or the funding of the Loans. The Adjusted Eurocurrency Rate for each outstanding Loan shall be adjusted automatically as of the effective date of any change in the Eurocurrency Reserve Percentage.
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“Event of Default” shall have the meaning provided in Section 11.
“Excluded Contribution” shall mean net cash proceeds, the Fair Market Value of marketable securities or the Fair Market Value of Qualified Proceeds received by Holdings from (a) contributions to its common equity capital, and (b) the sale (other than to a Subsidiary of Holdings or to any management equity plan or stock option plan or any other management or employee benefit plan or agreement of Holdings) of Capital Stock (other than Disqualified Stock and Designated Preferred Stock) of Holdings, in each case designated as Excluded Contributions pursuant to an officers’ certificate executed by either a senior vice president or the principal financial officer of Holdings within 180 days after the date such capital contributions are made or the date such Equity Interests are sold, as the case may be; provided that any non-cash assets shall qualify only if acquired by a parent of Holdings in an arm’s-length transaction within the six months prior to such contribution; in each case, other than (x) any amount designated as a Cure Amount and (y) the net cash proceeds of the Mandatory Convertible Offering and/or the Common Stock Offering received on the Closing Date.
“Excluded Stock and Stock Equivalents” shall mean (i) any Capital Stock or Stock Equivalents with respect to which, in the reasonable judgment of the Administrative Agent and Holdings (as agreed to in writing), the cost or other consequences of pledging such Capital Stock or Stock Equivalents in favor of the Secured Parties under the Security Documents shall be excessive in view of the benefits to be obtained by the Lenders therefrom, (ii) solely in the case of any pledge of Capital Stock of any Subsidiary that is a CFC or any Domestic Foreign Holdco in excess of 66% of the outstanding voting stock of such class, (iii) any Capital Stock or Stock Equivalents to the extent the pledge thereof would violate any applicable Requirement of Law (including any legally effective requirement to obtain the consent of any Governmental Authority unless such consent has been obtained) (other than non-assignment provisions which are rendered ineffective under the Uniform Commercial Code or other applicable law), (iv) in the case of (A) any Capital Stock or Stock Equivalents of any Subsidiary to the extent such Capital Stock or Stock Equivalents are subject to a Lien permitted by clause (9) of the definition of “Permitted Lien” or (B) any Capital Stock or Stock Equivalents of any Subsidiary that is not wholly-owned by Holdings and its Subsidiaries, any Capital Stock or Stock Equivalents of each such Subsidiary described in clause (A) or (B) to the extent (1) that a pledge thereof to secure the Obligations is prohibited by any applicable organizational documents, joint venture agreement or shareholders’ agreement (other than non-assignment provisions which are rendered ineffective under the Uniform Commercial Code or other applicable law), (2) any Contractual Requirement prohibits such a pledge without the consent of any other party; provided that this clause (2) shall not apply if (x) such other party is a Credit Party or wholly-owned Subsidiary or (y) consent has been obtained to consummate such pledge (it being understood that the foregoing shall not be deemed to obligate Holdings or any Subsidiary to obtain any such consent) and for so long as such prohibition is in effect, or (3) a pledge thereof to secure the Obligations would give any other party (other than a Credit Party or wholly-owned Subsidiary) to any applicable organizational documents, joint venture agreement or shareholders’ agreement governing such Capital Stock or Stock Equivalents the right to terminate its obligations thereunder (other than customary non-assignment provisions which are ineffective under the Uniform Commercial Code or other applicable law), (v) any Capital Stock or Stock Equivalents of any Subsidiary to the extent that (A) the pledge of such Capital Stock or Stock Equivalents would result in material adverse tax consequences to Holdings, the Borrower or any Subsidiary as reasonably determined by Borrower in good faith and (B) such Capital Stock or Stock Equivalents have been identified in writing to the Collateral Agent by an Authorized Officer of Holdings, (vi) any Capital Stock or Stock Equivalents that are margin stock, and (vii) the Capital Stock of any Foreign Subsidiary other than first tier Foreign Subsidiaries.
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“Excluded Subsidiary” shall mean (a) each Subsidiary, in each case, for so long as any such Subsidiary does not (on a consolidated basis with its Restricted Subsidiaries) constitute a Material Subsidiary, (b) each Subsidiary that is not a wholly-owned Subsidiary on any date such Subsidiary would otherwise be required to become a Guarantor pursuant to the requirements of Section 9.11 (for so long as such Subsidiary remains a non-wholly-owned Subsidiary), (c) any Domestic Foreign Holdco, (d) any Domestic Subsidiary that is a direct or indirect Subsidiary of a Foreign Subsidiary that is a CFC, (e) any Foreign Subsidiary, (f) each Subsidiary that is prohibited by any applicable Contractual Requirement (to the extent such Contractual Requirement exists on the Closing Date or on the date of acquisition of such Subsidiary (and was not incurred in contemplation of such acquisition)) or Requirement of Law from guaranteeing the Obligations at the time such Subsidiary becomes a Restricted Subsidiary (and for so long as such restriction or any replacement or renewal thereof is in effect), (g) each Subsidiary with respect to which, as reasonably determined by Holdings, the consequence of providing a Guarantee of the Obligations would adversely affect the ability of Holdings and its Subsidiaries to satisfy applicable Requirements of Law, (h) any other Subsidiary with respect to which, (x) in the reasonable judgment of the Administrative Agent and Holdings, as agreed in writing, the cost or other consequences of providing a Guarantee of the Obligations shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (y) providing such a Guarantee would result in material adverse tax consequences to Holdings, the Borrower or one of its Subsidiaries (as reasonably determined by the Borrower in good faith), (i) each Unrestricted Subsidiary and (j) each other Subsidiary acquired pursuant to a Permitted Acquisition and financed with assumed secured Indebtedness, and each Restricted Subsidiary acquired in such Permitted Acquisition that guarantees such Indebtedness, in each case to the extent that, and for so long as, the documentation relating to such Indebtedness to which such Subsidiary is a party prohibits such Subsidiary from guaranteeing the Obligations and such prohibition was not created in contemplation of such Permitted Acquisition.
“Excluded Swap Obligation” shall mean, with respect to any Credit Party, any Swap Obligation if, and to the extent that, all or a portion of the Obligations of such Credit Party of, or the grant by such Credit Party of a security interest to secure, such Swap Obligation (or any Obligations 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). If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Obligation or security interest is or becomes illegal.
“Excluded Taxes” shall mean, with respect to the Administrative Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of any Credit Party hereunder or under any other Credit Document, (i) Taxes imposed on or measured by its overall net income or branch profits (in each case, however denominated), and franchise (and similar) Taxes imposed on it (in lieu of net income Taxes), in each case by a jurisdiction (including any political subdivision thereof) as a result of such recipient being organized in, having its principal office in, or in the case of any Lender, having its applicable lending office in, such jurisdiction, or as a result of any other present or former connection with such jurisdiction (other than any such connection 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 Credit Document, or sold or assigned an interest in any Loan or Credit Document), (ii) in the case of a Lender, any United States federal withholding Tax imposed on any payment by or on account of any obligation of any Credit Party hereunder or under any other Credit Document that is required to be imposed on amounts payable to a Lender pursuant to laws in force at the time such Lender acquires an interest in any Credit Document, other than in the case of a Lender that is an assignee pursuant to a request by the Borrower or Holdings under Section 13.7 (or designates a new lending office), except, in each case, to the extent that such Lender (or its assignor, if any) was entitled, immediately prior to the designation of a new lending office (or assignment), to receive additional amounts from a Credit Party with respect to such Tax pursuant to Section 5.4, (iii) any withholding taxes attributable to a Lender’s failure to comply with Section 5.4(e) or (iv) any Tax imposed under FATCA.
“Existing Class” shall mean any Existing Term Loan Class and any Existing Revolving Credit Class.
“Existing Credit Agreement Indebtedness” shall mean the principal, interest, fees and other amounts, other than contingent obligations not due and payable, outstanding under that certain Credit Agreement, dated as of April 24, 2015, by and among the Borrower, Holdings, the lenders from time to time party thereto, the guarantors from time to time party thereto and Xxxxx Fargo Bank, National Association, as administrative agent.
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“Existing Letters of Credit” shall mean each letter of credit existing on the Closing Date and identified on Schedule 1.1(a).
“Existing Revolving Credit Class” shall have the meaning provided in Section 2.14(g)(ii).
“Existing Revolving Credit Commitment” shall have the meaning provided in Section 2.14(g)(ii).
“Existing Revolving Credit Loans” shall have the meaning provided in Section 2.14(g)(ii).
“Existing Term Loan Class” shall have the meaning provided in Section 2.14(g)(i).
“Extended Repayment Date” shall have the meaning provided in Section 2.5(c).
“Extended Revolving Credit Commitments” shall have the meaning provided in Section 2.14(g)(ii).
“Extended Revolving Credit Loans” shall have the meaning provided in Section 2.14(g)(ii).
“Extended Term Loan Repayment Amount” shall have the meaning provided in Section 2.5(c).
“Extended Term Loans” shall have the meaning provided in Section 2.14(g)(i).
“Extending Lender” shall have the meaning provided in Section 2.14(g)(iii).
“Extension Amendment” shall have the meaning provided in Section 2.14(g)(iv).
“Extension Date” shall have the meaning provided in Section 2.14(g)(v).
“Extension Election” shall have the meaning provided in Section 2.14(g)(iii).
“Extension Request” shall mean a Term Loan Extension Request.
“Extension Series” shall mean all Extended Term Loans and Extended Revolving Credit Commitments that are established pursuant to the same Extension Amendment (or any subsequent Extension Amendment to the extent such Extension Amendment expressly provides that the Extended Term Loans or Extended Revolving Credit Commitments, as applicable, provided for therein are intended to be a part of any previously established Extension Series) and that provide for the same interest margins, extension fees and amortization schedule.
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“Fair Market Value” shall mean with respect to any asset or group of assets on any date of determination, the value of the consideration obtainable in a sale of such asset at such date of determination assuming a sale by a willing seller to a willing purchaser dealing at arm’s length and arranged in an orderly manner over a reasonable period of time having regard to the nature and characteristics of such asset, as determined in good faith by the Borrower.
“Fair Value” shall mean the amount at which the assets (both tangible and intangible), in their entirety, of the Borrower and its Restricted Subsidiaries, taken as a whole, would change hands between a willing buyer and a willing seller, within a commercially reasonable period of time, each having reasonable knowledge of the relevant facts, with neither being under any compulsion to act.
“Fairfield Facility” shall mean that certain property located at 00 Xxxxx Xxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000.
“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, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code.
“FCA” shall have the meaning provided in Section 1.10.
“Federal Funds Effective Rate” means, for any day, the rate per annum equal to the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day, provided that if such rate is not so published for any day which is a Business Day, the Federal Funds Effective Rate for such day shall be the average of the quotation for such day on such transactions received by the Administrative Agent from three federal funds brokers of recognized standing selected by the Administrative Agent. Notwithstanding the foregoing, if the Federal Funds Effective Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
“Fees” shall mean all amounts payable pursuant to, or referred to in, Section 4.1.
“FEMA” shall mean the Federal Emergency Management Agency, a component of the U.S. Department of Homeland Security that administers the National Flood Insurance Program.
“Financial Covenants” shall mean the covenants set forth in Section 10.7.
“First Lien Intercreditor Agreement” shall mean an Intercreditor Agreement substantially in the form of Exhibit I-1 (with such changes to such form as may be reasonably acceptable to the Administrative Agent and the Borrower) among the Administrative Agent, the Collateral Agent and the representatives for purposes thereof for holders of one or more classes of Indebtedness that are secured by the Collateral on an equal priority basis (but without regard to the control of remedies) with liens on the Collateral securing the Obligations.
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“First Lien Obligations” shall mean the Obligations and the Permitted Other Indebtedness Obligations that are secured by the Collateral on an equal priority basis (but without regard to the control of remedies) with liens on the Collateral securing the Obligations.
“Fixed Charges” shall mean, with respect to any Person for any period, the sum of:
(i) Consolidated Interest Expense of such Person and its Restricted Subsidiaries on a consolidated basis for such period,
(ii) all cash dividend payments (excluding items eliminated in consolidation) on any series of preferred stock (including any Designated Preferred Stock) or any Refunding Capital Stock of such Person made during such period, and
(iii) all cash dividend payments (excluding items eliminated in consolidation) on any series of Disqualified Stock made during such period.
“Flood Insurance Laws” shall mean, collectively, (i) the National Flood Insurance Act of 1968 as now or hereafter in effect or any successor statute thereto, (ii) the Flood Disaster Protection Act of 1973 as now or hereafter in effect or any successor statute thereto, (iii) the National Flood Insurance Reform Act of 1994 as now or hereafter in effect or any successor statute thereto, (iv) the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute thereto and (v) the Xxxxxxx-Xxxxxx Flood Insurance Reform Act of 2012 as now or hereafter in effect or any successor statute thereto.
“Floor” means a rate of interest equal to 0.00%.
“Foreign Benefit Arrangement” shall mean any employee benefit arrangement mandated by non-U.S. law that is maintained or contributed to by any Credit Party or any of its Subsidiaries.
“Foreign Plan” shall mean each employee benefit plan (within the meaning of Section 3(3) of ERISA, whether or not subject to ERISA) that is not subject to U.S. law and is maintained or contributed to by any Credit Party or any of its Subsidiaries.
“Foreign Plan Event” shall mean, with respect to any Foreign Plan or Foreign Benefit Arrangement, (A) the failure by a Credit Party or any of its Subsidiaries to make or, if applicable, accrue in accordance with normal accounting practices, any employer or employee contributions required by applicable law or by the terms of such Foreign Plan or Foreign Benefit Arrangement; (B) the failure by a Credit Party or any of its Subsidiaries to register or loss of good standing with applicable regulatory authorities of any such Foreign Plan or Foreign Benefit Arrangement required to be registered; or (C) the failure of any Foreign Plan or Foreign Benefit Arrangement to comply with any provisions of applicable law and regulations or with the material terms of such Foreign Plan or Foreign Benefit Arrangement.
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“Foreign Prepayment Event” shall have the meaning provided in Section 5.2(a)(iv).
“Foreign Subsidiary” shall mean each Subsidiary of the Borrower that is not a Domestic Subsidiary.
“Fronting Fee” shall have the meaning provided in Section 4.1(d).
“Fund” shall mean any Person (other than a natural person) that is engaged or advises funds or other investment vehicles that are engaged in making, purchasing, holding or investing in commercial loans and similar extensions of credit in the ordinary course.
“GAAP” shall mean generally accepted accounting principles in the United States of America, as in effect from time to time; provided, however, that if the Borrower notifies the Administrative Agent that the Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the Closing Date in GAAP or in the application thereof on the operation of such provision, regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith.
“Governmental Authority” shall mean any nation, sovereign or government, any state, province, territory or other political subdivision thereof, and any entity or authority exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, including a central bank or stock exchange, any supra-national bodies such as the European Union and any group or body charged with setting financial accounting or regulatory capital rules or standards (including the Financial Accounting Standards Board, the Bank for International Settlements or the Basel Committee on Banking Supervision) or any successor or similar authority to any of the foregoing.
“Guarantee” shall mean (a) the Guarantee, dated as of November 1, 2021, made by Holdings (such Guarantee to be non-recourse and limited to the Capital Stock of the Borrower), the Borrower (except as to its own primary obligations) and each Guarantor in favor of the Collateral Agent for the benefit of the Secured Parties, and (b) any other guarantee of the Obligations made by a Restricted Subsidiary in form and substance reasonably acceptable to the Administrative Agent, in each case as the same may be amended, supplemented or otherwise modified from time to time.
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“guarantee obligations” shall mean, as to any Person, any obligation of such Person guaranteeing or intended to guarantee any Indebtedness of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including any obligation of such Person, whether or not contingent, (a) to purchase any such Indebtedness or any property constituting direct or indirect security therefor, (b) to advance or supply funds (i) for the purchase or payment of any such Indebtedness or (ii) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (c) to purchase property, securities or services primarily for the purpose of assuring the owner of any such Indebtedness of the ability of the primary obligor to make payment of such Indebtedness or (d) otherwise to assure or hold harmless the owner of such Indebtedness against loss in respect thereof; provided, however, that the term “Guarantee Obligations” shall not include endorsements of instruments for deposit or collection in the ordinary course of business or customary and reasonable indemnity obligations in effect on the Closing Date or entered into in connection with any acquisition or disposition of assets permitted under this Agreement (other than such obligations with respect to Indebtedness). The amount of any Guarantee Obligation shall be deemed to be an amount equal to the stated or determinable amount of the Indebtedness in respect of which such Guarantee Obligation is made or, if not 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.
“Guarantors” shall mean (a) the Borrower (except as to its own primary obligations), (b) each Subsidiary that is party to the Guarantee on the Closing Date, (c) each Subsidiary that becomes a party to the Guarantee after the Closing Date pursuant to Section 9.11 or otherwise and (d) Holdings; provided that, in no event shall any Excluded Subsidiary be required to be a Guarantor (unless such Subsidiary is no longer an Excluded Subsidiary).
“Hazardous Materials” shall mean (a) any petroleum or petroleum products, radioactive materials, asbestos and asbestos containing material, polychlorinated biphenyls, and radon gas; (b) any chemicals, materials or substances defined as or included in the definition of “hazardous substances,” “hazardous waste,” “hazardous materials,” “extremely hazardous waste,” “restricted hazardous waste,” “toxic substances,” “toxic pollutants,” “contaminants,” or “pollutants,” or words of similar import, under any Environmental Law; and (c) any other chemical, material or substance, which is prohibited, limited, or regulated by any Environmental Law.
“Hedge Agreements” shall mean (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, (b) any Commodities Hedge Agreement and (c) any Commodities Equity Option Agreement.
“Hedge Bank” shall mean (a) (i) any Person that, at the time it enters into a Hedge Agreement, is a Lender, an Agent or an Affiliate of a Lender or an Agent and (ii) with respect to any Hedge Agreement entered into prior to the Closing Date, any person that is a Lender or an Affiliate of a Lender on the Closing Date or (b) any Person listed on Schedule 1.1(d); provided that, in the case of this clause (b), such Person executes and delivers to the Administrative Agent a letter agreement in form and substance reasonably acceptable to the Administrative Agent pursuant to which such person (i) appoints the Administrative Agent as its agent under the applicable Credit Documents and (ii) agrees to be bound by the provisions of Sections 12, 13, 14 and 26 of the Pledge Agreement and Sections 5.4, 5.5, 5.7, 6.5, 7 and 8.1 of the Security Agreement, in each case, as if it were a Lender.
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“Hedging Obligations” shall mean, with respect to any Person, the obligations of such Person under any Hedge Agreements.
“Historical Financial Statements” shall mean (a) (i) the audited combined balance sheet of the Business (as defined in the Acquisition Agreement) as of each of December 31, 2019, and December 31, 2020, and the related audited combined statements of operations and statements of cash flows for the years ended December 31, 2019, and December 31, 2020, respectively and (ii) the unaudited combined balance sheet of the Business (as defined in the Acquisition Agreement) as of March 31, 2021, and the related unaudited combined statements of operations for the three-month period ended March 31, 2021 and (b) (i) the audited consolidated balance sheet of Holdings and its Subsidiaries and the related audited consolidated statements of income, cash flows and stockholders’ equity of Holdings and its consolidated Subsidiaries for the two most recently completed fiscal years ended March 28, 2020 and April 3, 2021 and (ii) the unaudited interim consolidated balance sheet of Holdings and its Subsidiaries for the fiscal quarter ended July 3, 2021 and the related unaudited consolidated statements of income, cash flows and stockholders’ equity of Holdings and its consolidated Subsidiaries for such fiscal quarter.
“Holdings” shall have the meaning provided in the preamble to this Agreement.
“Houston Facility” shall mean that certain property located at 0000 Xxxx Xxxx Xxxxx, Xxxxxxx, Xxxxx 00000.
“IBA” has the meaning assigned thereto in Section 1.10.
“Identified Contingent Liabilities” shall mean the maximum estimated amount of liabilities reasonably likely to result from pending litigation, asserted claims and assessments, guaranties, uninsured risks and other contingent liabilities of the Borrower and its Restricted Subsidiaries taken as a whole after giving effect to the Transactions (including all fees and expenses related thereto but exclusive of such contingent liabilities to the extent reflected in Stated Liabilities), as identified and explained in terms of their nature and estimated magnitude by responsible officers of the Borrower.
“Increased Amount Date” shall have the meaning provided in Section 2.14(a).
“Incremental Revolving Credit Commitments” shall have the meaning provided in Section 2.14(a).
“Incremental Revolving Credit Loan” shall have the meaning provided in Section 2.14(b).
“Incremental Revolving Loan Lenders” shall have the meaning provided in Section 2.14(b).
“incur” shall have the meaning provided in Section 10.1.
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“Indebtedness” shall mean, with respect to any Person, (i) any indebtedness (including principal and premium) of such Person, whether or not contingent (a) in respect of borrowed money, (b) evidenced by bonds, notes, debentures, or similar instruments or letters of credit or bankers’ acceptances (or, without double counting, reimbursement agreements in respect thereof), (c) representing the balance deferred and unpaid of the purchase price of any property (including Capitalized Lease Obligations) or (d) representing any Hedging Obligations, if and to the extent that any of the foregoing Indebtedness (other than letters of credit and Hedging Obligations) would appear as a net liability upon a balance sheet (excluding the footnotes thereto) of such Person prepared in accordance with GAAP; provided that Indebtedness of any direct or indirect parent company appearing upon the balance sheet of Holdings solely by reason of push down accounting under GAAP shall be excluded, (ii) to the extent not otherwise included, any obligation by such Person to be liable for, or to pay, as obligor, guarantor or otherwise, on the obligations of the type referred to in clause (i) of another Person (whether or not such items would appear upon the balance sheet of such obligor or guarantor), other than by endorsement of negotiable instruments for collection in the ordinary course of business, and (iii) to the extent not otherwise included, the obligations of the type referred to in clause (i) of another Person secured by a Lien on any asset owned by such Person, whether or not such Indebtedness is assumed by such Person; provided, further, that notwithstanding the foregoing, Indebtedness shall be deemed not to include (1) Contingent Obligations incurred in the ordinary course of business, (2) [reserved], (3) prepaid or deferred revenue arising in the ordinary course of business, (4) purchase price holdbacks arising in the ordinary course of business in respect of a portion of the purchase price of an asset to satisfy warrants or other unperformed obligations of the seller of such asset, (5) any balance that constitutes a trade payable or similar obligation to a trade creditor, accrued in the ordinary course of business, (6) any earn-out obligation until such obligation, within 60 days of becoming due and payable, has not been paid and such obligation is reflected as a liability on the balance sheet of such Person in accordance with GAAP, (7) any obligations attributable to the exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto, (8) accrued expenses and royalties, (9) asset retirement obligations and obligations in respect of workers’ compensation (including pensions and retiree medical care) that are not overdue by more than 60 days, (10) leases that would not be classified as Capitalized Lease Obligations or (11) the Mandatory Convertible Offering. The amount of Indebtedness of any Person for purposes of clause (iii) above shall (unless such Indebtedness has been assumed by such Person) be deemed to be equal to the lesser of (x) the aggregate unpaid amount of such Indebtedness and (y) the Fair Market Value of the property encumbered thereby as determined by such Person in good faith.
For all purposes hereof, the Indebtedness of Holdings and the other Restricted Subsidiaries shall exclude all intercompany loans, advances or Indebtedness having a term not exceeding 364 days (inclusive of any roll-over or extensions of terms) and made in the ordinary course of business.
“indemnified liabilities” shall have the meaning provided in Section 13.5.
“Indemnified Taxes” shall mean all Taxes imposed on or with respect to, or measured by, any payment by or on account of any obligation of any Credit Party hereunder or under any other Credit Document, other than Excluded Taxes.
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“Initial RFR Loan” shall mean an RFR Loan that would have borne interest based upon a Daily Simple RFR or a Term RFR on the Closing Date. Loans denominated in Pounds Sterling and Swiss Francs are Initial RFR Loans.
“Initial Term Loan” shall have the meaning provided in Section 2.1(a).
“Initial Term Loan Commitment” shall mean, in the case of each Lender that is a Lender on the Closing Date, the amount set forth opposite such Xxxxxx’s name on Schedule 1.1(c) as such Xxxxxx’s “Initial Term Loan Commitment”. The aggregate amount of the Initial Term Loan Commitments as of the Closing Date is $1,300,000,000.
“Initial Term Loan Lender” shall mean a Lender with an Initial Term Loan Commitment or an outstanding Initial Term Loan.
“Initial Term Loan Maturity Date” shall mean November 2, 2026 or, if such date is not a Business Day, the first Business Day thereafter.
“Initial Term Loan Repayment Amount” shall have the meaning provided in Section 2.5(b).
“Initial Term Loan Repayment Date” shall have the meaning provided in Section 2.5(b).
“Insolvent” shall mean, with respect to any Multiemployer Plan, the condition that such Multiemployer Plan is insolvent within the meaning of Section 4245 of ERISA.
“Intellectual Property” shall mean U.S. and foreign intellectual property, including all (i) (a) patents; (b) copyrights; (c) trademarks, service marks, trade names, service names, trade dress and other source indicators, and the goodwill of any business symbolized thereby; (d) trade secrets, know-how, confidential, proprietary or non-public information; and (e) Internet domain names; and (ii) all registrations, applications, renewals, extensions, continuations, continuations-in-part, divisionals, re-issues, re-examinations, or foreign counterparts related thereto.
“Interest Period” shall mean, with respect to any Loan, the interest period applicable thereto, as determined pursuant to Section 2.9.
“Investment” shall mean, with respect to any Person, all investments by such Person in other Persons (including Affiliates) in the form of loans (including guarantees), advances or capital contributions (excluding accounts receivable, trade credit, advances to customers, commission, travel and similar advances to officers and employees, in each case made in the ordinary course of business), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities issued by any other Person and investments that are required by GAAP to be classified on the balance sheet (excluding the footnotes) of Holdings in the same manner as the other investments included in this definition to the extent such transactions involve the transfer of cash or other property; provided that Investments shall not include, in the case of Holdings and its Restricted Subsidiaries, intercompany loans, advances, or Indebtedness having a term not exceeding 364 days (inclusive of any roll-over or extensions of terms) and made in the ordinary course of business.
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For purposes of the definition of “Unrestricted Subsidiary” and Section 10.5,
(1) “Investments” shall include the portion (proportionate to Holdings’ equity interest in such Subsidiary) of the Fair Market Value of the net assets of a Subsidiary of Holdings at the time that such Subsidiary is designated an Unrestricted Subsidiary; provided that upon a redesignation of such Subsidiary as a Restricted Subsidiary, Holdings shall be deemed to continue to have a permanent “Investment” in an Unrestricted Subsidiary in an amount (if positive) equal to (x) Holdings’ “Investment” in such Subsidiary at the time of such redesignation less (y) the portion (proportionate to Holdings’ equity interest in such Subsidiary) of the Fair Market Value of the net assets of such Subsidiary at the time of such redesignation; and
(2) any property transferred to or from an Unrestricted Subsidiary shall be valued at its Fair Market Value at the time of such transfer.
The amount of any Investment outstanding at any time shall be the original cost of such Investment, reduced by any dividend, distribution, interest payment, return of capital, repayment or other amount received in cash by Holdings or a Restricted Subsidiary in respect of such Investment.
“Investment Grade Rating” shall mean a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P, or an equivalent rating by any other rating agency.
“Investment Grade Securities” shall mean:
(1) securities issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality thereof (other than Cash Equivalents),
(2) debt securities or debt instruments with an Investment Grade Rating, but excluding any debt securities or instruments constituting loans or advances among Holdings and its Subsidiaries,
(3) investments in any fund that invest at least 90% in investments of the type described in clauses (1) and (2) which fund may also hold immaterial amounts of cash pending investment or distribution, and
(4) corresponding instruments in countries other than the United States customarily utilized for high-quality investments.
“ISP” shall mean, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance).
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“Issuer Documents” shall mean with respect to any Letter of Credit, the Letter of Credit Request, and any other document, agreement and instrument entered into by the Letter of Credit Issuer and Holdings (or any Restricted Subsidiary) or in favor of the Letter of Credit Issuer and relating to such Letter of Credit.
“Joinder Agreement” shall mean an agreement substantially in the form of Exhibit A.
“Joint Lead Arrangers and Bookrunners” shall have the meaning as set forth on the cover page to this Agreement.
“Judgment Currency” shall have the meaning provided in Section 13.19.
“Junior Debt” shall mean any Indebtedness (other than any permitted intercompany Indebtedness owning between or among Holdings or any Restricted Subsidiary) that is Subordinated Indebtedness.
“Junior Lien Intercreditor Agreement” shall mean an intercreditor agreement substantially in the form of Exhibit I-2 (with such changes to such form as may be reasonably acceptable to the Administrative Agent and the Borrower) among the Administrative Agent, the Collateral Agent and the representatives for purposes thereof for holders of one or more classes of Indebtedness that are secured by the Collateral on junior basis to the liens on the Collateral securing the Obligations.
“Latest Maturity Date” means, 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 Other Term Loan, any Other Term Commitment, any Other Revolving Loan or any Other Revolving Commitment, in each case as extended in accordance with this Agreement from time to time.
“L/C Borrowing” shall mean an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Borrowing. All L/C Borrowings shall be denominated in Dollars.
“L/C Facility Maturity Date” shall mean the date that is three Business Days prior to the Revolving Credit Maturity Date; provided that the L/C Facility Maturity Date may be extended beyond such date with the consent of the Letter of Credit Issuer.
“L/C Obligations” shall mean, as at any date of determination, the aggregate amount available to be drawn under all outstanding Letters of Credit plus the aggregate of all Unpaid Drawings, including all L/C Borrowings. 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 (ISP98), such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn. 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.
“L/C Participant” shall have the meaning provided in Section 3.3(a).
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“L/C Participation” shall have the meaning provided in Section 3.3(a).
“LCT Election” shall have the meaning provided in Section 1.7.
“LCT Test Date” shall have the meaning provided in Section 1.7.
“Lender” shall have the meaning provided in the preamble to this Agreement.
“Lender Default” shall mean (i) the refusal (which may be given verbally or in writing and has not been retracted) or failure of any Lender to make available its portion of any incurrence of Loans or Reimbursement Obligations, which refusal or failure is not cured within one business day after the date of such refusal or failure, unless such Lender notifies the Administrative Agent, the applicable Letter of Credit Issuer and the Borrower in writing that such failure is the result of such Xxxxxx’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, (ii) the failure of any Lender to pay over to the Administrative Agent, any Swingline Lender, any Letter of Credit Issuer or any other Lender any other amount required to be paid by it hereunder within one business day of the date when due, unless the subject of a good faith dispute, (iii) a Lender has notified the Borrower or the Administrative Agent that it does not intend to comply with its funding obligations under the this Agreement or has stated publicly that it will generally not comply with its funding obligations under loan agreements, credit agreements and other similar agreements, (iv) a Lender has failed, within three Business Days after request by the Administrative Agent, to confirm that it will comply with its funding obligations under this Agreement, (v) a Lender has admitted in writing that it is insolvent or such Lender becomes subject to a Lender-Related Distress Event and (vi) a Lender has become the subject of a Bail-In Action.
“Lender Presentation” shall mean the Lender Presentation of the Borrower dated August 16, 2021.
“Lender-Related Distress Event” shall mean, with respect to any Lender (each, a “Distressed Person”), a voluntary or involuntary case with respect to such Distressed Person under any debt relief law, or a custodian, conservator, receiver or similar official is appointed for such Distressed Person or any substantial part of such Distressed Person’s assets, or such Distressed Person, or such Distressed Person makes a general assignment for the benefit of creditors or is otherwise adjudicated as, or determined by any governmental authority having regulatory authority over such Distressed Person to be, insolvent or bankrupt; provided that a Lender-Related Distress Event shall not be deemed to have occurred solely by virtue of the ownership or acquisition of any equity interests in any Lender or any person that directly or indirectly controls such Lender by a governmental authority or an instrumentality thereof.
“Lending Office” means, with respect to any Lender, the office of such Lender maintaining such Lender’s Credit Event, which office may, to the extent the applicable Lender notifies the Administrative Agent in writing, include an office of any Affiliate of such Lender or any domestic or foreign branch of such Lender or Affiliate.
“Letter of Credit” shall mean each letter of credit issued pursuant to Section 3.1 and each Existing Letter of Credit.
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“Letter of Credit Commitment” shall mean $50,000,000, as the same may be reduced from time to time pursuant to Section 3.1.
“Letter of Credit Exposure” shall mean, with respect to any Lender, at any time, the sum of (a) the Dollar Equivalent amount of the principal amount of any Unpaid Drawings in respect of which such Lender has made (or is required to have made) payments to the Letter of Credit Issuer pursuant to Section 3.4(a) at such time and (b) such Xxxxxx’s Revolving Credit Commitment Percentage of the Letters of Credit Outstanding at such time (excluding the portion thereof consisting of Unpaid Drawings in respect of which the Lenders have made (or are required to have made) payments to the Letter of Credit Issuer pursuant to Section 3.4(a)).
“Letter of Credit Fee” shall have the meaning provided in Section 4.1(b).
“Letter of Credit Issuer” shall mean Xxxxx Fargo Bank, National Association, solely with respect to the Existing Letters of Credit listed on Schedule 1.1(a) through, and including, their respective final expiry dates and for so long as such Existing Letters of Credit are issued and outstanding, and Xxxxx Fargo Bank, National Association, any of their respective Affiliates or any replacement, additional bank or successor pursuant to Section 3.6. A Letter of Credit Issuer may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of the Letter of Credit Issuer, and in each such case the term “Letter of Credit Issuer” shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate. In the event that there is more than one Letter of Credit Issuer at any time, references herein and in the other Credit Documents to the Letter of Credit Issuer shall be deemed to refer to the Letter of Credit Issuer in respect of the applicable Letter of Credit or to all Letter of Credit Issuers, as the context requires.
“Letter of Credit Request” shall have the meaning provided in Section 3.2(a).
“Letters of Credit Outstanding” shall mean, at any time, the sum of, without duplication, (a) the aggregate Stated Amount of all outstanding Letters of Credit and (b) the aggregate Dollar Equivalent amount of the principal amount of all Unpaid Drawings.
“Level I Status” shall mean, on any date, the circumstance that the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than or equal to 4.50 to 1.00 as of such date.
“Level II Status” shall mean, on any date, the circumstance that the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 4.50 to 1.00 and greater than or equal to 3.75 to 1.00 as of such date.
“Level III Status” shall mean, on any date, the circumstance that the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 3.75 to 1.00 and greater than or equal to 3.00 to 1.00 as of such date.
“Level IV Status” shall mean, on any date, the circumstance that the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 3.00 to 1.00 and greater than or equal to 2.25 to 1.00 as of such date.
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“Level V Status” shall mean, on any date, the circumstance that the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 2.25 to 1.00 and greater than or equal to 1.50 to 1.00 as of such date.
“Level VI Status” shall mean, on any date, the circumstance that the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 1.50 to 1.00 as of such date.
“Lien” shall mean, with respect to any asset, any mortgage, lien, pledge, hypothecation, charge, security interest, preference, priority or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest in and any filing of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction; provided that in no event shall an operating lease be deemed to constitute a Lien.
“Limited Condition Transaction” shall mean (a) the consummation of any acquisition, investment, merger or other similar transactions that the Borrower or one or more of its Restricted Subsidiaries is contractually committed to consummate and whose consummation is not conditioned on the availability of, or on obtaining, third party financing, (b) any prepayment, repurchase or redemption of Indebtedness requiring irrevocable notice in advance of such prepayment, repurchase or redemption and/or (c) any Restricted Payment in connection with an acquisition or investment of the type described in clause (a) of this definition requiring irrevocable declaration in advance thereof.
“Loan” shall mean any Revolving Credit Loan, Extended Revolving Credit Loan, Swingline Loan, Term Loan, New Revolving Loan, Extended Term Loan or New Term Loan made by any Lender hereunder.
“London Business Day” shall mean any day on which dealings in deposits in the applicable currency are conducted by and between banks in the applicable London interbank market.
“Mandatory Borrowing” shall have the meaning provided in Section 2.1(d).
“Material Acquisition” shall mean an acquisition (consummated in one transaction or series of transactions) by the Borrower or a Restricted Subsidiary of assets of, or constituting a person that is not an affiliate of the Borrower (whether by purchase of such assets, purchase of person(s) owning such assets or some combination thereof) with a minimum gross purchase price of $50,000,000.
“Material Adverse Effect” shall mean (a) on the Closing Date, a Company Material Adverse Effect or (b) after the Closing Date, a circumstance or condition affecting the business, assets, operations, properties or financial condition of the Borrower and each of its Subsidiaries, taken as a whole, that would, individually or in the aggregate, materially adversely affect (i) the ability of the Borrower and the other Credit Parties, taken as a whole, to perform their payment obligations under this Agreement or any of the other Credit Documents or (ii) the rights and remedies of the Administrative Agent and the Lenders under this Agreement or any of the other Credit Documents, taken as a whole.
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“Material Subsidiary” shall mean, at any date of determination, (i) each wholly owned Restricted Subsidiary of Holdings (a) whose total assets at the last day of the Test Period ending on the last day of the most recent fiscal period for which Section 9.1 Financials have been delivered were equal to or greater than 5.0% of the Consolidated Total Assets of Holdings and the Restricted Subsidiaries at such date or (b) whose revenues during such Test Period were equal to or greater than 5.0% of the consolidated revenues of Holdings and the Restricted Subsidiaries for such period, in each case determined in accordance with GAAP; provided that if, at any time and from time to time after the Closing Date, Restricted Subsidiaries that are not Material Subsidiaries have, in the aggregate, (x) total assets at the last day of such Test Period equal to or greater than 10.0% of the Consolidated Total Assets of Holdings and the Restricted Subsidiaries at such date or (y) revenues during such Test Period equal to or greater than 10.0% of the consolidated revenues of Holdings and the Restricted Subsidiaries for such period, in each case determined in accordance with GAAP, then Holdings shall, on the date on which financial statements for such quarter are delivered pursuant to this Agreement, designate in writing to the Administrative Agent one or more of such Restricted Subsidiaries as “Material Subsidiaries” for each fiscal period until this proviso is no longer applicable.
“Maturity Date” shall mean the Initial Term Loan Maturity Date, the New Term Loan Maturity Date or the Revolving Credit Maturity Date, as applicable.
“Maximum Incremental Facilities Amount” shall mean, at any date of determination, the sum of (a) the greater of $425,000,000 and 100.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) plus (b) the aggregate amount of voluntary prepayments of Loans (including purchases of the Loans by the Borrower and its Subsidiaries at or below par, in which case the amount of voluntary prepayments of Loans shall be deemed not to exceed the actual purchase price of such Loans below par) (and in the case of any Loans that are not Term Loans, a corresponding commitment reduction), in each case, other than from proceeds of long-term Indebtedness (other than revolving Indebtedness) plus (c) an additional amount subject to Holdings’ compliance on a Pro Forma Basis with the Senior Secured Leverage Test (assuming the Indebtedness being incurred or Commitments being established as of such date of determination would be included in the definition of Consolidated Senior Secured Debt to Consolidated EBITDA Ratio, whether or not such Indebtedness would otherwise be so included and assuming any New Revolving Credit Commitments or delayed draw New Loan Commitments incurred at such time are fully drawn) minus (d) the aggregate principal amount of New Loan Commitments incurred pursuant to Section 2.14(a) prior to such date (it being understood that (I) at the election of the Borrower, the Borrower shall be deemed to have used amounts under clause (c) (to the extent compliant therewith) prior to utilization of amounts under clauses (a) or (b), (II) loans may be incurred under clauses (a), (b) and/or (c) above, and proceeds from any such incurrence under clauses (a), (b) and/or (c), may be utilized in a single transaction by first calculating the incurrence under clause (c) above and then calculating the incurrence under clauses (a) or (b) above and (III) amounts shall be incurred, designated and allocated in accordance with Section 1.7).
“Maximum Rate” shall have the meaning provided in Section 5.6(a).
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“Minimum Borrowing Amount” shall mean (a) with respect to a Borrowing of Eurocurrency Rate Loans or Term SOFR Loans, $1,000,000 (or, if less, the entire remaining applicable Commitments at the time of such Borrowing) and (b) with respect to a Borrowing of ABR Loans, $1,000,000 (or, if less, the entire remaining applicable Commitments at the time of such Borrowing). Notwithstanding the foregoing, in the case of a Borrowing denominated in an Alternative Currency, the Minimum Borrowing Amount shall be the Dollar Equivalent of the amounts described in the preceding sentence.
“XXXX Event” shall mean, if there are any Mortgaged Properties at such time, any increase, extension or renewal of any of the Commitments or Loans (including an incremental term loan or any other incremental credit facilities hereunder, but excluding (i) any continuation or conversion of Borrowings, (ii) the making of any Loan or (iii) the issuance or extension of Letters of Credit).
“Moody’s” shall mean Xxxxx’x Investors Service, Inc. or any successor by merger or consolidation to its business.
“Mortgage” shall mean a mortgage, deed of trust, deed to secure debt, trust deed or other security document entered into by the owner of a Mortgaged Property and the Collateral Agent for the benefit of the Secured Parties in respect of that Mortgaged Property to secure the Obligations, in form and substance reasonably acceptable to the Collateral Agent, together with such terms and provisions as may be required by local laws.
“Mortgaged Property” shall mean, initially, each parcel of real estate and the improvements thereto owned in fee by a Credit Party and identified on Schedule 1.1(b), and each other parcel of real property and improvements thereto with respect to which a Mortgage is granted pursuant to Sections 9.11 or 9.14.
“Multiemployer Plan” shall mean a multiemployer plan as defined in Section 4001(a)(3) of ERISA to which any Credit Party or ERISA Affiliate makes or is obligated to make contributions or had an obligation over the five preceding calendar years.
“Net Cash Proceeds” shall mean, with respect to any Prepayment Event and any incurrence of Permitted Other Indebtedness, (a) the gross cash proceeds (including payments from time to time in respect of installment obligations, if applicable, but only as and when received) received by or on behalf of Holdings or any of the Restricted Subsidiaries in respect of such Prepayment Event or incurrence of Permitted Other Indebtedness, as the case may be, less (b) the sum of:
(i) the amount, if any, of all taxes (including in connection with any repatriation of funds) paid or estimated to be payable by Holdings or any of the Restricted Subsidiaries in connection with such Prepayment Event or incurrence of Permitted Other Indebtedness,
(ii) the amount of any reasonable reserve established in accordance with GAAP against any liabilities (other than any taxes deducted pursuant to clause (i) above) (x) associated with the assets that are the subject of such Prepayment Event and (y) retained by Holdings or any of the Restricted Subsidiaries, provided that the amount of any subsequent reduction of such reserve (other than in connection with a payment in respect of any such liability) shall be deemed to be Net Cash Proceeds of such a Prepayment Event occurring on the date of such reduction,
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(iii) the amount of any Indebtedness (other than Permitted Other Indebtedness) secured by a Lien on the assets that are the subject of such Prepayment Event to the extent that the instrument creating or evidencing such Indebtedness requires that such Indebtedness be repaid upon consummation of such Prepayment Event,
(iv) in the case of any Asset Sale Prepayment Event or Casualty Event or Permitted Sale Leaseback, the amount of any proceeds of such Prepayment Event that Holdings or any Restricted Subsidiary has reinvested (or intends to reinvest within the Reinvestment Period or has entered into a binding commitment prior to the last day of the Reinvestment Period to reinvest) in the business of Holdings or any of the Restricted Subsidiaries; provided that any portion of such proceeds that has not been so reinvested within such Reinvestment Period (with respect to such Prepayment Event, the “Deferred Net Cash Proceeds”) shall, unless Holdings or a Restricted Subsidiary has entered into a binding commitment prior to the last day of such Reinvestment Period to reinvest such proceeds no later than 180 days following the last day of such Reinvestment Period, (x) be deemed to be Net Cash Proceeds of an Asset Sale Prepayment Event, Casualty Event or Permitted Sale Leaseback occurring on the last day of such Reinvestment Period or, if later, 180 days after the date Holdings or such Restricted Subsidiary has entered into such binding commitment, as applicable (such last day or 180th day, as applicable, the “Deferred Net Cash Proceeds Payment Date”), and (y) be applied to the repayment of Term Loans in accordance with Section 5.2(a)(i),
(v) in the case of any Asset Sale Prepayment Event, Casualty Event or Permitted Sale Leaseback by a non-wholly-owned Restricted Subsidiary, the pro rata portion of the Net Cash Proceeds thereof (calculated without regard to this clause (v)) attributable to minority interests and not available for distribution to or for the account of Holdings or a wholly-owned Restricted Subsidiary as a result thereof, and
(vi) all fees and out of pocket expenses paid by Holdings or a Restricted Subsidiary in connection with any of the foregoing (for the avoidance of doubt, including, (i) in the case of the issuance of Permitted Other Indebtedness, any fees, underwriting discounts, premiums and other costs and expenses incurred in connection with such issuance and (ii) attorney’s fees, investment banking fees, survey costs, title insurance premiums, and related search and recording charges, transfer taxes, deed or mortgage recording taxes, underwriting discounts and commissions, other customary expenses and brokerage, consultant, accountant and other customary fees), in each case only to the extent not already deducted in arriving at the amount referred to in clause (a) above.
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“Net Income” shall mean, with respect to any Person, the net income (loss) of such Person, determined in accordance with GAAP and before any reduction in respect of preferred stock dividends.
“New Loan Commitments” shall have the meaning provided in Section 2.14(a).
“New Loans” shall have the meaning provided in Section 2.14(c).
“New Revolving Credit Commitments” shall have the meaning provided in Section 2.14(a).
“New Revolving Credit Loan” shall have the meaning provided in Section 2.14(b).
“New Revolving Loan” shall have the meaning provided in Section 2.14(b).
“New Revolving Loan Lender” shall have the meaning provided in Section 2.14(b).
“New Term Loan” shall have the meaning provided in Section 2.14(c).
“New Term Loan Commitments” shall have the meaning provided in Section 2.14(a).
“New Term Loan Lender” shall have the meaning provided in Section 2.14(c).
“New Term Loan Maturity Date” shall mean the date on which a New Term Loan matures.
“New Term Loan Repayment Amount” shall have the meaning provided in Section 2.5(c).
“New Term Loan Repayment Date” shall have the meaning provided in Section 2.5(c).
“Non-Bank Tax Certificate” shall have the meaning provided in Section 5.4(e)(ii)(B)(3).
“Non-Consenting Lender” shall have the meaning provided in Section 13.7(b).
“Non-Defaulting Lender” shall mean and include each Lender other than a Defaulting Lender.
“Non-Extension Notice Date” shall have the meaning provided in Section 3.2(d).
“Non-U.S. Lender” shall mean any Agent or Lender that is not a “United States person” as defined by Section 7701(a)(30) of the Code.
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“Non-U.S. Subsidiary” shall mean each Subsidiary of Holdings that is not organized under the laws of the United States, any state thereof, or the District of Columbia.
“Notice of Borrowing” shall have the meaning provided in Section 2.3(a).
“Notice of Conversion or Continuation” shall have the meaning provided in Section 2.6(a).
“Obligations” shall mean all advances to, and debts, liabilities or other obligations of, any Credit Party arising under any Credit Document or otherwise with respect to any Revolving Credit Commitment, Loan or Letter of Credit or under any Secured Cash Management Agreement, Secured Hedge Agreement (other than with respect to any Credit Party’s obligations that constitute Excluded Swap Obligations solely with respect to such Credit Party), in each case, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Credit Party or any Affiliate thereof of any proceeding under any bankruptcy or insolvency law naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding. Without limiting the generality of the foregoing, the Obligations of the Credit Parties under the Credit Documents (and any of their Subsidiaries to the extent they have obligations under the Credit Documents) include the obligation (including guarantee obligations) to pay principal, interest, charges, expenses, fees, attorney costs, indemnities and other amounts payable by any Credit Party under any Credit Document.
“Original Revolving Credit Commitments” shall mean all Revolving Credit Commitments, Existing Revolving Credit Commitments and Extended Revolving Credit Commitments, other than any New Revolving Credit Commitments (and any Extended Revolving Credit Commitments related thereto).
“Other
Benchmark Rate Election” means, if the then-current Benchmark for Obligations, interest, fees, commissions or other amounts
denominated in, or calculated with respect to, Dollars, is the Adjusted Eurocurrency Rate for Dollars, the occurrence of: (a) a notification
by the Administrative Agent to (or the request by the Borrower to the Administrative Agent to notify) each of the other parties hereto
that at least five currently outstanding Dollar-denominated syndicated credit facilities at such time contain (as a result of amendment
or as originally executed), in lieu of a USD LIBOR-based rate, a term benchmark rate that is not a SOFR-based rate as a benchmark rate
(and such syndicated credit facilities are identified in such notice and are publicly available for review), and (b) the joint election
by the Administrative Agent and the Borrower to trigger a fallback from the Adjusted Eurocurrency Rate for Dollars and the provision by
the Administrative Agent of written notice of such election to the Lenders.
“Other Revolving Commitments” shall mean, with respect to each Additional Refinancing Lender, the commitment, if any, of such Additional Refinancing Lender to make one or more Classes of Other Revolving Loans under any Refinancing Amendment, expressed as an amount representing the maximum principal amount of the Other Revolving Loans to be made by such Lender under such Refinancing Amendment.
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“Other Revolving Loans” shall mean the Revolving Credit Loans made pursuant to any Other Revolving Commitment.
“Other Taxes” shall mean all present or future stamp, registration, court or documentary Taxes or any other excise, property, intangible, filing, mortgage recording or similar Taxes arising from any payment made hereunder or under any other Credit Document or from the execution, delivery, performance, registration or enforcement of, from the receipt or perfection of a security interest under, or otherwise with respect to, this Agreement or any other Credit Document; provided that such term shall not include any Taxes that result from an assignment, grant of a participation pursuant to Section 13.6(c) or transfer or assignment to or designation of a new lending office or other office for receiving payments under any Credit Document (“Assignment Taxes”) to the extent such Assignment Taxes are imposed as a result of a connection between the assignor/participating Lender and/or the assignee/Participant and the taxing jurisdiction (other than a connection arising solely from any Credit Documents or any transactions contemplated thereunder), except to the extent that any such action described in this proviso is requested or required by the Borrower or Holdings.
“Other Term Commitments” shall mean, with respect to each Additional Refinancing Lender, the commitment, if any, of such Additional Refinancing Lender to make one or more Classes of Other Term Loans under any Refinancing Amendment, expressed as an amount representing the maximum principal amount of the Other Term Loans to be made by such Lender under such Refinancing Amendment.
“Other Term Loans” shall mean one or more Classes of Term Loans made pursuant to or that result from a Refinancing Amendment.
“Overnight Rate” shall mean, for any day, (a) with respect to any amount denominated in Dollars, the greater of (i) the Federal Funds Effective Rate and (ii) an overnight rate determined by the Administrative Agent, the Letter of Credit Issuer or the Swingline Lender, as the case may be, in accordance with banking industry rules on interbank compensation, and (b) with respect to any amount denominated in any Alternative Currency, the rate of interest per annum at which overnight deposits in such Alternative Currency, as applicable, in an amount approximately equal to the amount with respect to which such rate is being determined, would be offered for such day by a branch or Affiliate of the Administrative Agent in the applicable offshore interbank market for such Alternative Currency to major banks in such interbank market.
“Participant” shall have the meaning provided in Section 13.6(c)(i).
“Participant Register” shall have the meaning provided in Section 13.6(c)(ii).
“Participating Member State” shall mean any member state of the European Union that adopts or has adopted the Euro as its lawful currency in accordance with the legislation of the European Union relating to economic and monetary union.
“Patriot Act” shall have the meaning provided in Section 13.18.
“Payment Recipient” has the meaning assigned to it in Section 12.13(a).
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“PBGC” shall mean the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.
“Pension Plan” shall mean any employee pension benefit plan (as defined in Section 3(2) of ERISA, but excluding any Multiemployer Plan) in respect of which any Credit Party or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4062 or Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.
“Permitted Acquisition” shall have the meaning provided in clause (c) of the definition of “Permitted Investments.”
“Permitted Asset Swap” shall mean the concurrent purchase and sale or exchange of Related Business Assets or a combination of Related Business Assets and cash or Cash Equivalents between Holdings or a Restricted Subsidiary and another Person; provided that any cash or Cash Equivalents received must be applied in accordance with Section 10.4.
“Permitted Investments” shall mean:
(a) any Investment in Holdings or any Restricted Subsidiary;
(b) any Investment in cash, Cash Equivalents or Investment Grade Securities at the time such Investment is made;
(c) any Investment by Holdings or any Restricted Subsidiary in a Person or assets of a Person that is engaged in a Similar Business (a “Permitted Acquisition”); provided that (a) in the case of any purchase or other acquisition of Equity Interests in a Person, (i) such Person, upon the consummation of such purchase or acquisition, will be a Subsidiary (including as a result of a merger, amalgamation or consolidation between any Subsidiary and such Person), or (ii) such Person is merged or amalgamated into or consolidated with a Subsidiary and such Subsidiary is the surviving entity of such merger, amalgamation or consolidation, (b) with respect to each such purchase or other acquisition, all actions required to be taken with respect to such newly created or acquired Subsidiary (including each subsidiary thereof) or assets in order to satisfy the requirements set forth in Sections 9.11, 9.12 and 9.14 to the extent applicable shall have been taken (or arrangements for the taking of such actions after the consummation of the Permitted Acquisition shall have been made that are reasonably satisfactory to the Administrative Agent) (unless such newly created or acquired Subsidiary is designated as an Unrestricted Subsidiary or is otherwise an Excluded Subsidiary) and (c) except with respect to any Limited Condition Transaction, after giving pro forma effect to any such purchase or other acquisition, no Event of Default shall have occurred and be continuing (at the time of execution of a binding agreement in respect thereof);
(d) any Investment in securities or other assets not constituting cash, Cash Equivalents or Investment Grade Securities and received in connection with an Asset Sale made pursuant to Section 10.4 or any other disposition of assets not constituting an Asset Sale;
(e) any Investment existing or for which contracts have been entered into as of the Closing Date;
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(f) any Investment acquired by Holdings or any Restricted Subsidiary (1) in exchange for any other Investment or accounts receivable held by Holdings or any such Restricted Subsidiary in connection with or as a result of a bankruptcy, workout, reorganization or recapitalization of Holdings of such other Investment or accounts receivable or (2) as a result of a foreclosure by Holdings or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default;
(g) Hedging Obligations permitted under clause (j) of Section 10.1;
(h) any Investment in a Similar Business having an aggregate Fair Market Value, taken together with all other Investments made pursuant to this clause (viii) that are at that time outstanding, not to exceed the greater of (a) $115,000,000 and (b) 25.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such Investment (with the Fair Market Value of each Investment being measured at the time made and without giving effect to subsequent changes in value); provided, however, that if any Investment pursuant to this clause (viii) is made in any Person that is not a Restricted Subsidiary at the date of the making of such Investment and such Person becomes a Restricted Subsidiary after such date, such Investment shall thereafter be deemed to have been made pursuant to clause (i) above and shall cease to have been made pursuant to this clause (viii) for so long as such Person continues to be a Restricted Subsidiary;
(i) Investments the payment for which consists of Equity Interests of Holdings or any direct or indirect parent company of Holdings (exclusive of Disqualified Stock);
(j) guarantees of Indebtedness permitted under Section 10.1;
(k) any transaction to the extent it constitutes an Investment that is permitted and made in accordance with the provisions of Section 9.9;
(l) Investments consisting of purchases and acquisitions of inventory, supplies, material, equipment or other similar assets in the ordinary course of business;
(m) additional Investments having an aggregate Fair Market Value, taken together with all other Investments made pursuant to this clause (m) that are at that time outstanding (without giving effect to the sale of an Unrestricted Subsidiary to the extent the proceeds of such sale do not consist of cash or marketable securities), not to exceed the greater of $215,000,000 and 50.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such Investment (with the Fair Market Value of each Investment being measured at the time made and without giving effect to subsequent changes in value); provided, however, that if any Investment pursuant to this clause (m) is made in any Person that is not a Restricted Subsidiary of Holdings at the date of the making of such Investment and such Person becomes a Restricted Subsidiary after such date, such investment shall thereafter be deemed to have been made pursuant to clause (a) above and shall cease to have been made pursuant to this clause (m) for so long as such Person continues to be a Restricted Subsidiary;
(n) additional Investments; provided that after giving effect to such Investment (i) on a Pro Forma Basis, the Consolidated Total Debt to Consolidated EBITDA Ratio is less than or equal to 4.50 to 1.00 and (ii) no Event of Default pursuant to Section 11.1 or 11.5 hereof exists and is continuing or would result therefrom;
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(o) the Transactions;
(p) [Reserved];
(q) advances to, or guarantees of Indebtedness of, employees not in excess of the greater of $22,000,000 and 5.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such Investment;
(r) loans and advances to officers, directors, managers and employees for business- related travel expenses, moving expenses and other similar expenses, in each case incurred in the ordinary course of business or consistent with past practices or to fund such Person’s purchase of Equity Interests of Holdings or any direct or indirect parent company thereof;
(s) Investments consisting of extensions of trade credit in the ordinary course of business;
(t) Investments in the ordinary course of business consisting of Uniform Commercial Code Article 3 endorsements for collection or deposit and Uniform Commercial Code Article 4 customary trade arrangements with customers consistent with past practices;
(u) non-cash Investments in connection with tax planning and reorganization activities; provided that after giving effect to any such activities, the security interests of the Secured Parties in the Collateral, taken as a whole, would not be materially impaired;
(v) advances of payroll to employees;
(w) contributions to a “rabbi” trust for the benefit of employees, directors, consultants, independent contractors or other service providers or other grantor trust subject to claims of creditors in the case of bankruptcy of the Borrower;
(x) Investments by an Unrestricted Subsidiary entered into prior to the day such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary pursuant to the definition of “Unrestricted Subsidiary”, so long as such Unrestricted Subsidiary will be redesignated as a Restricted Subsidiary;
(y) Investments by Holdings and the Restricted Subsidiaries in joint ventures (or similar arrangements) not in excess of $115,000,000 and 25.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis);
(z) Investments made in connection with the funding of contributions under any non-qualified retirement plan or similar employee compensation plan in an amount not to exceed the amount of compensation expense recognized by the Borrower and the Restricted Subsidiaries in connection with such plans; and
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(aa) xxxxxxx money deposits required in connection with Permitted Acquisitions or similar Investments.
“Permitted Liens” shall mean, with respect to any Person:
(1) pledges or deposits (or letters of credit) by such Person under workmen’s compensation laws, unemployment insurance laws or similar legislation, or in connection with warranty obligations and to secure health, safety and environmental obligations, or good faith deposits in connection with bids, tenders, contracts (other than for the payment of Indebtedness) or leases to which such Person is a party, or deposits to secure public, statutory or regulatory obligations of such Person or deposits of cash or U.S. government bonds to secure surety, stay, customs or appeal bonds to which such Person is a party, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
(2) Liens imposed by law, including carriers’, warehousemen’s, materialmen’s, repairmen’s, landlords’, construction contractors’ and mechanics’ Liens, in each case for sums not yet overdue for a period of more than 60 days or remain payable without penalty, being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards against such Person with respect to which such Person shall then be proceeding with an appeal or other proceedings for review if adequate reserves with respect thereto are maintained on the books of such Person in accordance with GAAP;
(3) Liens for taxes, assessments or other governmental charges not yet overdue for a period of more than 60 days or which are being contested in good faith by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of such Person in accordance with GAAP, or for property taxes on property Holdings or one of its Subsidiaries has determined to abandon if the sole recourse for such tax, assessment, charge, levy or claim is to such property;
(4) Liens in favor of issuers of performance, surety, bid, indemnity, warranty, release, appeal or similar bonds or with respect to other regulatory requirements or letters of credit or bankers’ acceptances issued, and completion guarantees provided for, in each case pursuant to the request of and for the account of such Person in the ordinary course of its business;
(5) minor survey exceptions, minor encumbrances, ground leases, easements or reservations of, or rights of others for, licenses, rights-of-way, servitudes, sewers, electric lines, drains, telegraph and telephone and cable television lines, gas and oil pipelines and other similar purposes, or zoning, building codes or other restrictions (including, without limitation, minor defects or irregularities in title and similar encumbrances) as to the use of real properties or Liens incidental, to the conduct of the business of such Person or to the ownership of its properties which were not incurred in connection with Indebtedness and which do not in the aggregate materially adversely affect the value of said properties or materially impair their use in the operation of the business of such Person;
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(6) Liens securing Indebtedness permitted to be incurred pursuant to clause (a), (d), (l), (n), (r), (v) or (w) of Section 10.1; provided that, (i) in the case of clause (d), such Lien may not extend to any property or equipment (or assets affixed or appurtenant thereto) other than the property or equipment being financed or refinanced under such clause (d); (ii) in the case of clause (r), such Lien may not extend to any assets other than the assets owned by the Restricted Subsidiaries incurring such Indebtedness; (iii) in the case of Liens securing Incurred Acquisition Debt or Permitted Other Indebtedness Obligations that constitute First Lien Obligations pursuant to this clause (6), (x) in the case of the first such issuance of Incurred Acquisition Debt or Permitted Other Indebtedness constituting First Lien Obligations, the Collateral Agent, the Administrative Agent and the representative for the holders of such Incurred Acquisition Debtor or Permitted Other Indebtedness Obligations shall have entered into the First Lien Intercreditor Agreement and (y) in the case of subsequent issuances of Incurred Acquisition Debt or Permitted Other Indebtedness constituting First Lien Obligations, the representative for the holders of such Incurred Acquisition Debt and Permitted Other Indebtedness Obligations shall have become a party to the First Lien Intercreditor Agreement in accordance with the terms thereof; (iv) in the case of Liens securing Incurred Acquisition Debt or Permitted Other Indebtedness Obligations that do not constitute First Lien Obligations pursuant to this clause (6),(x) in the case of the first such issuance of Incurred Acquisition Debt or Permitted Other Indebtedness, the Collateral Agent, the Administrative Agent and the representative for the holders of such Incurred Acquisition Debt or Permitted Other Indebtedness Obligations shall have entered into the Junior Lien Intercreditor Agreement and (y) in the case of subsequent issuances of Incurred Acquisition Debt or Permitted Other Indebtedness, the representative for the holders of such Incurred Acquisition Debt or Permitted Other Indebtedness Obligations shall have become a party to the Junior Lien Intercreditor Agreement in accordance with the terms thereof; and (v) in the case of Liens securing Incurred Acquisition Debt or Permitted Other Indebtedness Obligations, at the time of the granting of such Lien, Holdings shall be in Pro Forma Compliance with the Senior Secured Leverage Test;
(7) Liens existing on Closing Date and, in each case, any modifications, replacements, renewals or extensions thereof;
(8) Liens on property or shares of stock of a Person at the time such Person becomes a Subsidiary; provided such Liens are not created or incurred in connection with, or in contemplation of, such other Person becoming a Subsidiary; provided, however, that such Liens may not extend to any other property owned by Holdings or any Restricted Subsidiary;
(9) Liens on property at the time Holdings or a Restricted Subsidiary acquired the property, including any acquisition by means of a merger or consolidation with or into Holdings or any Restricted Subsidiary; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition, merger or consolidation; provided further that the Liens may not extend to any other property owned by Holdings or any Restricted Subsidiary;
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(10) Liens securing Indebtedness or other obligations of a Restricted Subsidiary owing to Holdings or another Restricted Subsidiary permitted to be incurred in accordance with Section 10.1.
(11) Liens securing Hedging Obligations and Cash Management Services so long as the related Indebtedness is, and is permitted hereunder to be, secured by a Lien on the same property securing such Hedging Obligations and Cash Management Services;
(12) Liens on specific items of inventory or other goods and proceeds of any Person securing such Person’s obligations in respect of bankers’ acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;
(13) leases, subleases, licenses or sublicenses (including of Intellectual Property) granted to others in the ordinary course of business which do not materially interfere with the ordinary conduct of the business of Holdings or any Restricted Subsidiary;
(14) Liens arising from Uniform Commercial Code financing statement filings regarding operating leases or consignments entered into by Holdings or any Restricted Subsidiary in the ordinary course of business;
(15) Liens in favor of Holdings, the Borrower or any Guarantor;
(16) Liens on equipment of Holdings or any Restricted Subsidiary granted in the ordinary course of business to Holdings’ or such Restricted Subsidiary’s client at which such equipment is located;
(17) [Reserved];
(18) Liens to secure any refinancing, refunding, extension, renewal or replacement (or successive refinancing, refunding, extensions, renewals or replacements) as a whole, or in part, of any Indebtedness secured by any Lien referred to in clauses (6), (7), (8), (9), (10) and (15) of this definition of “Permitted Liens”; provided that (x) such new Lien shall be limited to all or part of the same property that secured the original Lien (plus improvements on such property), and (y) the Indebtedness secured by such Lien at such time is not increased to any amount greater than the sum of (A) the outstanding principal amount or, if greater, committed amount of the Indebtedness described under clauses (6), (7), (8), (9), (10) and (15) at the time the original Lien became a Permitted Lien under this Agreement, and (B) an amount necessary to pay any fees and expenses, including premiums and accrued and unpaid interest, related to such refinancing, refunding, extension, renewal or replacement;
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(19) deposits made or other security provided to secure liabilities to insurance carriers under insurance or self-insurance arrangements in the ordinary course of business;
(20) other Liens securing obligations which obligations do not exceed the greater of (x) $215,000,000 and (y) 50.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of the incurrence of such Lien; provided that, at the Borrower’s election, (i) in the case of Liens securing Indebtedness on a pari passu basis with the First Lien Obligations, the Collateral Agent, the Administrative Agent and the representative for the holders of such Indebtedness shall have entered into a First Lien Intercreditor Agreement and (ii) in the case of Liens securing Indebtedness on a junior lien basis to the First Lien Obligations, the Collateral Agent, the Administrative Agent and the representative of the holders of such Indebtedness shall have entered into a Junior Lien Intercreditor Agreement, and the Collateral Agent shall be authorized to execute and deliver on behalf of the Secured Parties the First Lien Intercreditor Agreement and the Junior Lien Intercreditor Agreement contemplated by this clause (20);
(21) Liens securing judgments and attachments for the payment of money not constituting an Event of Default under Section 11.11;
(22) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods in the ordinary course of business;
(23) Liens (i) of a collection bank arising under Section 4-210 of the Uniform Commercial Code or any comparable or successor provision on items in the course of collection, (ii) attaching to commodity trading accounts or other commodity brokerage accounts incurred in the ordinary course of business and (iii) in favor of banking institutions arising as a matter of law encumbering deposits (including the right of set-off) and which are within the general parameters customary in the banking industry;
(24) Liens deemed to exist in connection with Investments in repurchase agreements permitted under Section 10.1; provided that such Liens do not extend to any assets other than those that are the subject of such repurchase agreement;
(25) Liens encumbering reasonable customary initial deposits and margin deposits and similar Liens attaching to commodity trading accounts or other brokerage accounts incurred in the ordinary course of business and not for speculative purposes;
(26) Liens that are contractual rights of set-off (i) relating to the establishment of depository relations with banks not given in connection with the issuance of Indebtedness, (ii) relating to pooled deposit or sweep accounts of Holdings or any of its Restricted Subsidiaries to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of Holdings and its Restricted Subsidiaries or (iii) relating to purchase orders and other agreements entered into with customers of Holdings or any of its Restricted Subsidiaries in the ordinary course of business;
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(27) Liens (a) solely on any xxxx xxxxxxx money deposits made by Holdings or any of its Restricted Subsidiaries in connection with any letter of intent or purchase agreement permitted under this Agreement or (b) consisting of an agreement to dispose of any property pursuant to a disposition permitted hereunder;
(28) the rights reserved or vested in any Person by the terms of any lease, license, franchise, grant or permit held by Holdings or any of its Restricted Subsidiaries or by a statutory provision, to terminate any such lease, license, franchise, grant or permit, or to require annual or periodic payments as a condition to the continuance thereof;
(29) restrictive covenants affecting the use to which real property may be put; provided that the covenants are complied with;
(30) security given to a public utility or any municipality or governmental authority when required by such utility or authority in connection with the operations of that Person in the ordinary course of business;
(31) zoning by-laws and other land use restrictions, including, without limitation, site plan agreements, development agreements and contract zoning agreements;
(32) Liens arising out of conditional sale, title retention, consignment or similar arrangements for sale of goods entered into by Holdings or any Restricted Subsidiary in the ordinary course of business; and
(33) any Lien granted pursuant to a security agreement between Holdings or any Restricted Subsidiary and a licensee of their Intellectual Property to secure the damages, if any, of such licensee resulting from the rejection by Holdings or such Restricted Subsidiary of such licensee in a bankruptcy, reorganization or similar proceeding with respect to Holdings or such Restricted Subsidiary; provided that such Liens, in the aggregate, do not encumber any assets of Holdings or any Restricted Subsidiary other than the assets subject to such Liens on the Closing Date;
(34) Liens on goods purchased in the ordinary course of business the purchase price of which is financed by a documentary letter of credit issued for the account of the Company or any of its subsidiaries;
(35) Liens on the assets and property of Restricted Subsidiaries that are not Credit Parties;
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(36) Liens on cash and Cash Equivalents that are earmarked to be used to satisfy or discharge Indebtedness; provided (x) such cash and/or Cash Equivalents are deposited into an account from which payment is to be made, directly or indirectly, to the Person or Persons holding the Indebtedness that is to be satisfied or discharged, (y) such Liens extend solely to the account in which such cash and/or Cash Equivalents are deposited and are solely in favor of the Person or Persons holding the Indebtedness (or any agent or trustee for such Person or Persons) that is to be satisfied or discharged and (z) the satisfaction or discharge of such Indebtedness is expressly permitted hereunder;
(37) with respect to any Foreign Subsidiary, (i) Liens securing permitted Indebtedness and (ii) other Liens and privileges arising by any Requirement of Law; and
(38) Liens on cash or Permitted Investments securing Hedge Agreements in the ordinary course of business.
For purposes of this definition, the term “Indebtedness” shall be deemed to include interest on such Indebtedness.
“Permitted Other Indebtedness” shall mean subordinated or senior Indebtedness (which Indebtedness may be secured or unsecured; provided that (x) any Permitted Other Indebtedness incurred pursuant to Section 10.1(v) shall be incurred by a Credit Party, have the same lien priority as the First Lien Obligations (without regard to control of remedies) and be otherwise on terms and conditions provided in Section 10.1(v) and (y) any Permitted Other Indebtedness incurred pursuant to Section 10.1(w), if secured, shall only be secured pursuant to and in compliance with clause (6) of the definition of “Permitted Liens” and Pro Forma Compliance with the Senior Secured Leverage Test) (a) the terms of which do not provide for any scheduled repayment, mandatory repayment or redemption or sinking fund obligations prior to, at the time of incurrence, the Latest Maturity Date (other than, in each case, customary offers or obligations to repurchase upon a change of control, asset sale or casualty or condemnation event and customary acceleration rights after an event of default), (b) the covenants, events of default, guarantees, collateral and other terms of which (excluding pricing, interest rate margins, rate floors, discounts, fees, premiums and prepayment or redemption provisions (which shall not permit more than pro rata payment with the Term Loans)) either (i) reflect market terms and conditions (as determined by the Borrower in good faith) or (ii) are not more restrictive to the Borrower and the Restricted Subsidiaries than those herein (taken as a whole) (except for covenants or other provisions applicable only to periods after the Latest Maturity Date at the time of such refinancing) (it being understood that, to the extent that any financial maintenance covenant is added for the benefit of any such Indebtedness, no consent shall be required by the Administrative Agent or any of the Lenders if such financial maintenance covenant is either (i) also added for the benefit of any corresponding Loans remaining outstanding after the issuance or incurrence of such Indebtedness or (ii) only applicable after the Latest Maturity Date at the time of such refinancing), (c) of which no Subsidiary of Holdings (other than the Borrower or a Guarantor) is an obligor and (d) that, if secured, are not secured by any assets other than the Collateral.
“Permitted Other Indebtedness Documents” shall mean any document or instrument (including any guarantee, security agreement or mortgage and which may include any or all of the Credit Documents) issued or executed and delivered with respect to any Permitted Other Indebtedness by any Credit Party.
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“Permitted Other Indebtedness Obligations” shall mean, if any Permitted Other Indebtedness is issued or incurred, all advances to, and debts, liabilities or other obligations of, any Credit Party arising under any Permitted Other Indebtedness Document, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Credit Party or any Affiliate thereof of any proceeding under any bankruptcy or insolvency law naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding. Without limiting the generality of the foregoing, the Permitted Other Indebtedness Obligations of the applicable Credit Parties under the Permitted Other Indebtedness Documents (and any of their Restricted Subsidiaries to the extent they have obligations under the Permitted Other Indebtedness Documents) include the obligation (including guarantee obligations) to pay principal, interest, charges, expenses, fees, attorney costs, indemnities and other amounts payable by any such Credit Party under any Permitted Other Indebtedness Document.
“Permitted Sale Leaseback” shall mean any Sale Leaseback consummated by Holdings or any of the Restricted Subsidiaries after the Closing Date; provided that any such Sale Leaseback not between Holdings and a Restricted Subsidiary is consummated for fair value as determined at the time of consummation in good faith by (i) Holdings or such Restricted Subsidiary or (ii) in the case of any Sale Leaseback (or series of related Sale Leasebacks) the aggregate proceeds of which exceed the greater of (x) $150,000,000 and (y) 30.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of the incurrence of such Sale Leaseback, the board of directors of Holdings or such Restricted Subsidiary (which such determination may take into account any retained interest or other Investment of Holdings or such Restricted Subsidiary in connection with, and any other material economic terms of, such Sale Leaseback).
“Person” shall mean any individual, partnership, joint venture, firm, corporation, limited liability company, association, trust or other enterprise or any Governmental Authority.
“Plan” shall mean any employee benefit plan (as defined in Section 3(3) of ERISA), including any employee welfare benefit plan (as defined in Section 3(1) of ERISA), any employee pension benefit plan (as defined in Section 3(2) of ERISA), and any plan which is both an employee welfare benefit plan and an employee pension benefit plan, and in respect of which any Credit Party or any ERISA Affiliate is (or, if such Plan were terminated, would under Section 4062 or Section 4069 of ERISA be reasonably likely to be deemed to be) an “employer” as defined in Section 3(5) of ERISA, but other than any Multiemployer Plan or Foreign Plan or Foreign Benefit Arrangement.
“Platform” shall have the meaning provided in Section 13.17(a).
“Pledge Agreement” shall mean the Pledge Agreement, dated as of November 1, 2021, entered into by the Credit Parties party thereto and the Collateral Agent for the benefit of the Secured Parties, as the same may be amended, supplemented or otherwise modified from time to time.
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“Post-Transaction Period” shall mean, with respect to any Specified Transaction, the period beginning on the date such Specified Transaction is consummated and ending on the last day of the tenth full consecutive fiscal quarter immediately following the date on which such Specified Transaction is consummated.
“Pounds Sterling” shall mean British Pounds Sterling or any successor currency in the United Kingdom.
“Prepayment Event” shall mean any Asset Sale Prepayment Event, Debt Incurrence Prepayment Event or Casualty Event or any Permitted Sale Leaseback.
“Present Fair Salable Value” shall mean the amount that could be obtained by an independent willing seller from an independent willing buyer if the assets (both tangible and intangible) of the Borrower and its Restricted Subsidiaries taken as a whole are sold on a going concern basis with reasonable promptness in an arm’s-length transaction under present conditions for the sale of comparable business enterprises insofar as such conditions can be reasonably evaluated.
“primary obligor” shall have the meaning provided such term in the definition of “guarantee obligations”. “Prime Rate” shall mean the “prime rate” referred to in the definition of “ABR”.
“Pro Forma Adjustment” shall mean, for any Test Period that includes all or any part of a fiscal quarter included in any Post-Transaction Period, with respect to the Acquired EBITDA of the applicable Acquired Entity or Business or Converted Restricted Subsidiary or the Consolidated EBITDA of Holdings, the pro forma increase or decrease in such Acquired EBITDA or such Consolidated EBITDA, as the case may be, projected by Holdings in good faith as a result of (a) actions taken during such Post-Transaction Period for the purposes of realizing reasonably identifiable and factually supportable cost savings or (b) any additional costs incurred during such Post-Transaction Period, in each case in connection with the combination of the operations of such Acquired Entity or Business or Converted Restricted Subsidiary with the operations of Holdings and the Restricted Subsidiaries; provided that (x) at the election of Holdings, such Pro Forma Adjustment shall not be required to be determined for any Acquired Entity or Business or Converted Restricted Subsidiary to the extent the aggregate consideration paid in connection with such acquisition was less than $5,000,000 and (y) so long as such actions are taken during such Post-Transaction Period or such costs are incurred during such Post-Transaction Period, as applicable, it may be assumed, for purposes of projecting such pro forma increase or decrease to such Acquired EBITDA or such Consolidated EBITDA, as the case may be, that the applicable amount of such cost savings will be realizable during the entirety of such Test Period, or the applicable amount of such additional costs, as applicable, will be incurred during the entirety of such Test Period; provided, further, that the aggregate amount of adjustments pursuant to this definition of “Pro Forma Adjustment” (when combined with Synergies pursuant to clause (h)(2) of the definition of “Consolidated EBITDA”) shall not exceed 25% of Consolidated EBITDA (calculated after giving effect to any such addbacks or adjustments); provided further that any such pro forma increase or decrease to such Acquired EBITDA or such Consolidated EBITDA, as the case may be, shall be without duplication for cost savings or additional costs already included in such Acquired EBITDA or such Consolidated EBITDA, as the case may be, for such Test Period.
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“Pro Forma Basis”, “Pro Forma Compliance” and “Pro Forma Effect” shall mean, with respect to compliance with any test, financial ratio or covenant hereunder required by the terms of this Agreement to be made on a Pro Forma Basis or after giving Pro Forma Effect thereto, that (A) to the extent applicable, the Pro Forma Adjustment shall have been made and (B) all Pro Forma Events and the following transactions in connection therewith that have been made during the applicable period of measurement or subsequent to such period and prior to or simultaneously with the event for which the calculation is made shall be deemed to have occurred as of the first day of the applicable period of measurement in such test, financial ratio or covenant: (a) income statement items (whether positive or negative) attributable to the property or Person subject to such Pro Forma Event, (i) in the case of a sale, transfer or other disposition of all or substantially all Capital Stock in any Subsidiary of Holdings or any division, product line, or facility used for operations of Holdings or any of its Subsidiaries, shall be excluded, and (ii) in the case of a Permitted Acquisition or Investment described in the definition of “Specified Transaction,” shall be included, (b) any retirement of Indebtedness and (c) any incurrence or assumption of Indebtedness by Holdings or any of the Restricted Subsidiaries in connection therewith (it being agreed that if such Indebtedness has a floating or formula rate, such Indebtedness shall have an implied rate of interest for the applicable period for purposes of this definition determined by utilizing the rate that is or would be in effect with respect to such Indebtedness as at the relevant date of determination); provided that, without limiting the application of the Pro Forma Adjustment pursuant to clause (a) above, the foregoing pro forma adjustments may be applied to any such test or covenant solely to the extent that such adjustments are consistent with the definition of Consolidated EBITDA and give effect to cost savings, operating expense reductions and synergies that are (i) (x) directly attributable to such Pro Forma Event, (y) expected to have a continuing impact on Holdings, the Company or any of its Restricted Subsidiaries and (z) reasonably identifiable and factually supportable or (ii) otherwise consistent with the definition of Pro Forma Adjustment.
“Pro Forma Entity” shall have the meaning provided in the definition of the term “Acquired EBITDA”.
“Pro Forma Event” shall mean any asset sales, mergers or other business combinations, acquisitions, Investments, dispositions or divestitures, operating improvements and expense reductions, restructurings, cost savings initiatives and other similar initiatives and Specified Transaction.
“Prohibited Transaction” shall have the meaning assigned to such term in Section 406 of ERISA and Section 4975(c) of the Code.
“PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
“Public Company Costs” shall mean costs relating to compliance with the provisions of the Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as amended, as applicable to companies with equity or debt securities held by the public, the rules of national securities exchange companies with listed equity or debt securities, directors’ or managers’ compensation, fees and expense reimbursement, costs relating to investor relations, shareholder meetings and reports to shareholders or debtholders, directors’ and officers’ insurance and other executive costs, legal and other professional fees, and listing fees.
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“QFC” shall have the meaning provided in Section 13.23.
“QFC Credit Support” shall have the meaning provided in Section 13.23.
“Qualified Proceeds” shall mean assets that are used or useful in, or Capital Stock of any Person engaged in, a Similar Business.
“Qualified Stock” of any Person shall mean Capital Stock of such Person other than Disqualified Stock of such Person.
“Rate Determination Date” means, with respect to any Interest Period, two (2) Eurocurrency Banking Days prior to the commencement of such Interest Period (or such other day as is generally treated as the rate fixing day by market practice in such interbank market, as determined by the Administrative Agent; provided that to the extent that such market practice is not administratively feasible for the Administrative Agent, such other day as otherwise reasonably determined by the Administrative Agent).
“Real Estate” shall have the meaning provided in Section 9.1(f).
“Reference Time”
with respect to any setting of the then-current Benchmark for any Agreed Currency means (a) if such Benchmark is a Daily Simple RFR,
(i) if the RFR for such Benchmark is SOFR, then four (4)
RFR Business Days prior to (A) if the date of such setting is an RFR Business Day, such date or (B) if the date of such setting is not
an RFR Business Day, the RFR Business Day immediately preceding such date, (ii) if the RFR for such Benchmark is XXXXX,
then four (4) RFR Business Days prior to (A) if the date of such setting is an RFR Business Day, such date or (B) if the date of such
setting is not an RFR Business Day, the RFR Business Day immediately preceding such date, and (iii)
if the RFR for such Benchmark is SARON, then five (5) RFR Business Days prior to (A) if the date of such setting is an RFR Business Day,
such date or (B) if the date of such setting is not an RFR Business Day, the RFR Business Day immediately preceding such date, (b) if
such Benchmark is an Adjusted Eurocurrency Rate, (i) if the applicable Adjusted Eurocurrency Rate for
such Benchmark is based upon USD LIBOR, then 11:00 a.m. (London time) on the day that is two (2) Eurocurrency Banking Days preceding
the date of such setting, and (ii) if the applicable Adjusted Eurocurrency Rate for such Benchmark and
is based upon EURIBOR, then 11:00 a.m. (Brussels time) on the day that is two (2) Eurocurrency Banking Days preceding the
date of such setting and (c) otherwise, then the time determined by the Administrative Agent, including in accordance with the Benchmark
Replacement Conforming Changes.
“Refinance” shall mean, in respect of any indebtedness, to refinance, extend, renew, defease, amend, increase, modify, supplement, restructure, refund, replace or repay such indebtedness, or to issue other indebtedness or enter alternative financing arrangements, in exchange or replacement for such indebtedness (in whole or in part), including by adding or replacing lenders, creditors, agents, borrowers and/or guarantors, and including in each case, but not limited to, after the original instrument giving rise to such indebtedness has been terminated and including, in each case, through any credit agreement, indenture or other agreement. “Refinanced” and “Refinancing” have correlative meanings.
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“Refinanced Term Loans” shall have the meaning provided in Section 13.1.
“Refinancing Amendment” shall mean an amendment to this Agreement executed by each of (a) the Borrower, (b) the Administrative Agent, (c) each Additional Refinancing Lender, and (d) each Lender that agrees to provide any portion of Other Term Loans incurred pursuant thereto and/or Other Revolving Commitments established pursuant thereto, in each case in accordance with Section 2.15.
“Refinancing Indebtedness” shall have the meaning provided in Section 10.1(m).
“Refinancing Notes” shall have the meaning provided in Section 10.1(m).
“Refunding Capital Stock” shall have the meaning provided in Section 10.5(c)(2).
“Register” shall have the meaning provided in Section 13.6(b)(iv).
“Regulation T” shall mean Regulation T of the Board as from time to time in effect and any successor to all or a portion thereof establishing margin requirements.
“Regulation U” shall mean Regulation U of the Board as from time to time in effect and any successor to all or a portion thereof establishing margin requirements.
“Regulation X” shall mean Regulation X of the Board as from time to time in effect and any successor to all or a portion thereof establishing margin requirements.
“Reimbursement Date” shall have the meaning provided in Section 3.4(a).
“Reimbursement Obligations” shall mean Borrower’s obligations to reimburse Unpaid Drawings pursuant to Section 3.4(a).
“Reinvestment Period” shall mean 545 days following the date of receipt of Net Cash Proceeds of an Asset Sale Prepayment Event, Casualty Event or Permitted Sale Leaseback.
“Related Business Assets” shall mean assets (other than cash or Cash Equivalents) used or useful in a Similar Business; provided that any assets received by Holdings or the Restricted Subsidiaries in exchange for assets transferred by Holdings or a Restricted Subsidiary shall not be deemed to be Related Business Assets if they consist of securities of a Person, unless upon receipt of the securities of such Person, such Person would become a Restricted Subsidiary.
“Related Parties” shall mean, with respect to any specified Person, such Person’s Affiliates and the directors, officers, employees, agents, trustees and advisors of such Person and any Person that possesses, directly or indirectly, the power to direct or cause the direction of the management or policies of such Person, whether through the ability to exercise voting power, by contract or otherwise.
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“Release” shall mean any release, spill, emission, discharge, disposal, escaping, leaking, pumping, pouring, dumping, emptying, injection, migration or leaching into the environment.
“Relevant Governmental Body” means (a) with respect to a Benchmark Replacement in respect of Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to, Dollars, the FRB or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the FRB or the Federal Reserve Bank of New York, or any successor thereto and (b) with respect to a Benchmark Replacement in respect of Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to, any Alternative Currency, (1) the central bank for the Agreed Currency in which such Obligations, interest, fees, commissions or other amounts are denominated, or calculated with respect to, or any central bank or other supervisor which is responsible for supervising either (A) such Benchmark Replacement or (B) the administrator of such Benchmark Replacement or (2) any working group or committee officially endorsed or convened by (A) the central bank for the Agreed Currency in which such Obligations, interest, fees, commissions or other amounts are denominated, or calculated with respect to, (B) any central bank or other supervisor that is responsible for supervising either (i) such Benchmark Replacement or (ii) the administrator of such Benchmark Replacement, (C) a group of those central banks or other supervisors or (D) the Financial Stability Board or any part thereof.
“Reorganization” shall mean, with respect to any Multiemployer Plan, the condition that such plan is in reorganization within the meaning of Section 4241 of ERISA.
“Repayment Amount” shall mean the Initial Term Loan Repayment Amount, a New Term Loan Repayment Amount with respect to any Series or an Extended Term Loan Repayment Amount with respect to any Extension Series, as applicable.
“Replacement Term Loans” shall have the meaning provided in Section 13.1.
“Reportable Event” shall mean any “reportable event,” as defined in Section 4043(c) of ERISA or the regulations issued thereunder, with respect to a Pension Plan (other than a Pension Plan maintained by an ERISA Affiliate that is considered an ERISA Affiliate only pursuant to subsection (m) or (o) of Section 414 of the Code), other than those events as to which notice is waived pursuant to DOL Reg. § 4043.
“Required Initial Term Loan Lenders” shall mean, at any date, Lenders having or holding a majority of the sum of (a) the Total Initial Term Loan Commitment at such date and (b) the aggregate outstanding principal amount of the Initial Term Loans (excluding Initial Term Loans held by Defaulting Lenders) at such date.
“Required Lenders” shall mean, at any date, (a) Non-Defaulting Lenders having or holding a majority of the Dollar Equivalent of the sum of (i) the Adjusted Total Revolving Credit Commitment at such date, (ii) the Adjusted Total Term Loan Commitment at such date and (iii) the outstanding principal amount of the Term Loans (excluding Term Loans held by Defaulting Lenders) at such date or (b) if the Total Revolving Credit Commitment and the Total Term Loan Commitment have been terminated or for the purposes of acceleration pursuant to Section 11, Non-Defaulting Lenders having or holding a majority of the Dollar Equivalent of the outstanding principal amount of the Loans and Letter of Credit Exposure (excluding the Loans and Letter of Credit Exposure of Defaulting Lenders) in the aggregate at such date.
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“Required Revolving Credit Lenders” shall mean, at any date, Non-Defaulting Lenders holding a majority of the Adjusted Total Revolving Credit Commitment at such date (or, if the Total Revolving Credit Commitment has been terminated at such time, a majority of the Revolving Credit Exposure (excluding Revolving Credit Exposure of Defaulting Lenders) at such time).
“Required Term Loan Lenders” shall mean, at any date, Lenders having or holding a majority of the sum of (a) the Total Term Loan Commitment at such date and (b) the aggregate outstanding principal amount of the Term Loans (excluding Term Loans held by Defaulting Lenders) at such date.
“Requirement of Law” shall mean, as to any Person, the certificate of incorporation and by-laws or other organizational or governing documents of such Person, and any law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or assets or to which such Person or any of its property or assets is subject.
“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Restricted Investment” shall mean an Investment other than a Permitted Investment.
“Restricted Payment” shall have the meaning provided in Section 10.5(a).
“Restricted Subsidiary” shall mean any Subsidiary of Holdings other than an Unrestricted Subsidiary.
“Retired Capital Stock” shall have the meaning provided in Section 10.5(c)(2).
“Revaluation Date” shall mean (a) with respect to any Loan, each of the following: (i) each date of a borrowing of an RFR Loan or a Eurocurrency Rate Loan denominated in an Alternative Currency, but only as to the amounts so borrowed on such date, (ii) each date of a continuation of an RFR Loan or a Eurocurrency Rate Loan, as applicable, denominated in an Alternative Currency pursuant the terms of this Agreement, but only as to the amounts so continued on such date and (iii) such additional dates as the Administrative Agent shall determine, the Required Revolving Credit Lenders shall require (in respect of all Revolving Credit Loans) or the Required Lenders shall require; and (b) with respect to any Letter of Credit denominated in an Alternative Currency, each of the following: (i) each date of issuance, amendment or extension of such Letter of Credit, but only as to the Letter of Credit so issued, amended or extended on such date, (ii) each date of any payment by the applicable Letter of Credit Issuer under any Letter of Credit denominated in an Alternative Currency, but only as to the Letter of Credit that is paid on such date, (iii) in the case of all Existing Letters of Credit denominated in Alternative Currencies, the Closing Date, but only as to such Existing Letters of Credit and (iv) such additional dates as the Administrative Agent or the applicable Letter of Credit Issuer (with notice thereof to the Administrative Agent) shall determine or the Required Lenders shall require.
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“Revolving Credit Commitment” shall mean, (a) with respect to each Person that is a Lender on the date hereof, its obligation to make Revolving Credit Loans to the Borrower pursuant to Section 2.1(b), in an aggregate principal amount at any one time outstanding not to exceed the amount set forth, and opposite such Lender’s name on Schedule 1.1(c) and (b) in the case of any Person that becomes a Lender after the date hereof, the amount specified as such Xxxxxx’s Revolving Credit Commitment in the Assignment and Acceptance pursuant to which such Lender assumed a portion of the Total Revolving Credit Commitment, in each case of the same may be changed from time to time pursuant to terms hereof. The aggregate Revolving Credit Commitments of all Revolving Credit Lenders shall be $500,000,000 on the Closing Date (the “Initial Revolving Credit Commitments”), as such amount may be adjusted from time to time in accordance with the terms of this Agreement.
“Revolving Credit Commitment Percentage” shall mean at any time, for each Lender, the percentage obtained by dividing (a) such Lender’s Revolving Credit Commitment at such time by (b) the amount of the Total Revolving Credit Commitment at such time, provided that at any time when the Total Revolving Credit Commitment shall have been terminated, each Lender’s Revolving Credit Commitment Percentage shall be the percentage obtained by dividing (a) such Lender’s Revolving Credit Exposure at such time by (b) the Revolving Credit Exposure of all Lenders at such time.
“Revolving Credit Exposure” shall mean, with respect to any Lender at any time, the sum of (a) the aggregate Dollar Equivalent amount of the principal amount of Revolving Credit Loans of such Lender then outstanding, (b) such Xxxxxx’s Letter of Credit Exposure at such time and (c) such Xxxxxx’s Revolving Credit Commitment Percentage of the aggregate principal amount of all outstanding Swingline Loans at such time.
“Revolving Credit Facility” shall mean, at any time, the aggregate amount of the Revolving Credit Lenders’ Revolving Credit Commitments at such time.
“Revolving Credit Lender” shall mean, at any time, any Lender that has a Revolving Credit Commitment or Extended Revolving Credit Commitment at such time.
“Revolving Credit Loan” shall have the meaning provided in Section 2.1(b)(i).
“Revolving Credit Maturity Date” shall mean November 2, 2026, or, if such date is not a Business Day, the first Business Day thereafter.
“Revolving Credit Termination Date” shall mean the date on which the Revolving Credit Commitments shall have terminated, no Revolving Credit Loans or Swingline Loans shall be outstanding and the Letters of Credit Outstanding shall have been reduced to zero or Cash Collateralized.
“RFR”
means, for any Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to, (a) Dollars, on
and after the USD LIBOR Transition Date,Term SOFR, (b) Pounds Xxxxxxxx, XXXXX
and (c) Swiss Francs, SARON.
“RFR Administrator”
means the SOFR Administrator, the XXXXX Administrator or the SARON Administrator, as
applicable.
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“RFR Business
Day” means, for any Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to,
(a) Dollars, on and after the USD LIBOR Transition Date, any day except for (i) a Saturday,
(ii) a Sunday or (iii) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments
of its members be closed for the entire day for purposes of trading in United States government securities, (b) Pounds Sterling,
any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on which banks are closed for general business in London, and (c) Swiss
Francs, any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on which banks are closed for the settlement of payments
and foreign exchange transactions in Zurich; provided, that for purposes of notice requirements in Sections 2.3(a), 2.3(b),
2.6(a), and 5.1, in each case, such day is also a Business Day.
“RFR Determination Day” has the meaning assigned thereto in the definition of “Daily Simple RFR.”
“RFR Loan” means a Daily Simple RFR Loan or a Term RFR Loan, as the context may require.
“RFR Rate Day” has the meaning assigned thereto in the definition of “Daily Simple RFR”.
“S&P” shall mean Standard & Poor’s Ratings Services or any successor by merger or consolidation to its business.
“Sale Leaseback” shall mean any arrangement with any Person providing for the leasing by Holdings or any Restricted Subsidiary of any real or tangible personal property, which property has been or is to be sold or transferred by Holdings or such Restricted Subsidiary to such Person in contemplation of such leasing.
“Sanctioned Country” means, at any time, a country or territory which is currently the subject or target of comprehensive country-wide or territory-wide Sanctions (including, as of the Closing Date, Cuba, Iran, North Korea, Syria and Crimea).
“Sanctioned Person” shall mean an individual or entity that is, or any entity owned or controlled by, any individual or entity that is (a) designated on any Sanctions list, (b) located, organized or resident in any Sanctioned Country or (c) otherwise the subject of Sanctions.
“Sanctions” means economic or financial sanctions administered or enforced from time to time by (a) the U.S. government, including those administered by the U.S. Department of the Treasury, Office of Foreign Assets Control or the U.S. Department of State or (b) the United Nations Security Council, the European Union, any European Union member state or Her Majesty’s Treasury of the United Kingdom or other relevant sanctions authority.
“SARON” means a rate equal to the Swiss Average Rate Overnight as administered by the SARON Administrator.
“SARON Administrator” means the SIX Swiss Exchange AG (or any successor administrator of the Swiss Average Rate Overnight).
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“SARON Administrator’s Website” means SIX Swiss Exchange AG’s website, currently at xxxxx://xxx.xxx-xxxxx.xxx, or any successor source for the Swiss Average Rate Overnight identified as such by the SARON Administrator from time to time.
“Screen Rate”
means, for any Eurocurrency Rate Loan denominated in Dollars, the USD LIBOR Rate, for
any Eurocurrency Rate Loan denominated in Euros, the EURIBOR Rate and for any Eurocurrency Rate Loan denominated in Canadian Dollars,
CDOR.
“SEC” shall mean the Securities and Exchange Commission or any successor thereto.
“Section 2.14 Additional Amendment” shall have the meaning provided in Section 2.14(g)(iv).
“Section 9.1 Financials” shall mean the financial statements delivered, or required to be delivered, pursuant to Section 9.1(a) or (b) together with the accompanying officer’s certificate delivered, or required to be delivered, pursuant to Section 9.1(d).
“Secured Cash Management Agreement” shall mean any Cash Management Agreement that is entered into by and between Holdings or any of its Restricted Subsidiaries and any Cash Management Bank.
“Secured Cash Management Obligations” shall mean Obligations under Secured Cash Management Agreements.
“Secured Hedge Agreement” shall mean any Hedge Agreement that is entered into by and between Holdings, the Borrower or any Restricted Subsidiary that is a Credit Party and any Hedge Bank.
“Secured Hedge Obligations” shall mean Obligations under Secured Hedge Agreements.
“Secured Parties” shall mean the Administrative Agent, the Collateral Agent, the Letter of Credit Issuer, each Lender, each Hedge Bank that is party to any Secured Hedge Agreement, each Cash Management Bank that is party to a Secured Cash Management Agreement and each sub-agent pursuant to Section 12 appointed by the Administrative Agent with respect to matters relating to the Credit Facilities or the Collateral Agent with respect to matters relating to any Security Document.
“Security Agreement” shall mean the Security Agreement, dated as of November 1, 2021, entered into by Holdings, the Borrower, the other grantors party thereto and the Collateral Agent for the benefit of the Secured Parties, as the same may be amended, supplemented or otherwise modified from time to time.
“Security Documents” shall mean, collectively, (a) the Guarantee, (b) the Pledge Agreement, (c) the Security Agreement, (d) the Mortgages, (e) if executed, the First Lien Intercreditor Agreement and the Junior Lien Intercreditor Agreement and (f) each other security agreement or other instrument or document executed and delivered pursuant to Sections 9.11, 9.12 or 9.14 or pursuant to any other such Security Documents to secure the Obligations.
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“Senior Notes” shall have the meaning provided in the preamble to this Agreement.
“Senior Secured Leverage Test” shall mean, as of any date of determination, with respect to the last day of the most recently ended Test Period, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio shall be no greater than 3.75 to 1.00, calculated on a Pro Forma Basis.
“Series” shall have the meaning provided in Section 2.14(a).
“Similar Business” shall mean any business conducted or proposed to be conducted by Holdings and the Restricted Subsidiaries on the Closing Date or any business that is the same, similar or generally related, incidental or ancillary thereto.
“SOFR” means a rate equal to the secured overnight financing rate as administered by the Term SOFR Administrator.
“SOFR
Administrator” means the Federal Reserve Bank of New York (or a successor
administrator of the secured overnight financing rate).
“SOFR
Administrator’s Website” means the website of the Federal Reserve Bank of New York, currently at xxxx://xxx.xxxxxxxxxx.xxx,
or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time.
“Sold Entity or Business” shall have the meaning provided in the definition of the term “Consolidated EBITDA”.
“Solvent” shall mean, after giving effect to the consummation of the Transactions, that (i) the Fair Value of the assets of the Borrower and its Restricted Subsidiaries taken as a whole exceed their Stated Liabilities and Identified Contingent Liabilities, (ii) the Present Fair Salable Value of the assets of the Borrower and its Restricted Subsidiaries taken as a whole exceed their Stated Liabilities and Identified Contingent Liabilities; (iii) the Borrower and its Restricted Subsidiaries taken as a whole do not have Unreasonably Small Capital; and (iv) the Borrower and its Restricted Subsidiaries taken as a whole will be able to pay their Stated Liabilities and Identified Contingent Liabilities as they mature.
“XXXXX” means a rate equal to the Sterling Overnight Index Average as administered by the XXXXX Administrator.
“XXXXX Administrator” means the Bank of England (or any successor administrator of the Sterling Overnight Index Average).
“XXXXX Administrator’s Website” means the Bank of England’s website, currently at xxxx://xxx.xxxxxxxxxxxxx.xx.xx, or any successor source for the Sterling Overnight Index Average identified as such by the XXXXX Administrator from time to time.
“Special Flood Hazard Area” shall mean an area that FEMA’s current flood maps indicate has at least a one percent (1%) chance of a flood equal to or exceeding the base flood elevation (a 100-year flood) in any given year.
“Specified Existing Revolving Credit Commitment” shall have the meaning provided in Section 2.14(g)(ii).
“Specified Representations” shall mean the representations and warranties with respect to the Borrower and each Guarantor set forth in Sections 8.1(a), 8.2 (as related to the borrowing under, guaranteeing under, granting of security interests in the Collateral to, and performance of, the Credit Documents), 8.3(c) (as related to the borrowing under, guaranteeing under, granting of security interests in the Collateral to, and performance of, the Credit Documents), 8.5, 8.7, 8.17, 8.18, 8.19, 8.20 or 8.21 of this Agreement.
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“Specified Transaction” shall mean, with respect to any period, any Investment (including a Permitted Acquisition), any Asset Sale, incurrence or repayment of Indebtedness, Restricted Payment, Subsidiary designation, New Term Loan, New Revolving Credit Commitment or any other event or action that by the terms of this Agreement requires “Pro Forma Compliance” with a test or covenant hereunder or requires such test or covenant to be calculated on a “Pro Forma Basis”.
“Spot Rate” for a currency shall mean the rate determined by the Administrative Agent to be the rate quoted by the Administrative Agent as the spot rate for the purchase by the Administrative Agent of such currency with another currency through its principal foreign exchange trading office at approximately 11:00 a.m. on the date two Business Days prior to the date as of which the foreign exchange computation is made; provided that the Administrative Agent may obtain such spot rate from another financial institution designated by the Administrative Agent if it does not have as of the date of determination a spot buying rate for any such currency.
“Spread
Adjusted SOFR” means with respect to any RFR Business Day, a rate per annum equal to the sum of (a) the secured overnight financing
rate for such RFR Business Day plus (b) 0.26161% (26.161 basis points).
“Spread
Adjusted Term SOFR” means, for any Available Tenor and Interest Period, a rate per annum equal to the sum of (a) the forward-looking
term rate for a period comparable to such Available Tenor based on the SOFR that is published by an authorized benchmark administrator
and is displayed on a screen or other information service, each as identified or selected by the Administrative Agent in its reasonable
discretion at approximately a time and as of a date prior to the commencement of such Interest Period determined by the Administrative
Agent in its reasonable discretion in a manner substantially consistent with market practice and (b) (i) 0.11448% (11.448 basis points)
for an Available Tenor of one-month’s duration, (ii) 0.26161% (26.161 basis points) for an Available Tenor of three-months’
duration, and (iii) 0.42826% (42.826 basis points) for an Available Tenor of six-months’ duration.
“Stated Amount” of any Letter of Credit shall mean the Dollar Equivalent of the maximum amount from time to time available to be drawn thereunder, determined without regard to whether any conditions to drawing could then be met; provided, however, that with respect to any Letter of Credit that by its terms or the terms of any Issuer Document provides for one or more automatic increases in the stated amount thereof, the Stated Amount shall be deemed to be the Dollar Equivalent of the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.
“Stated Liabilities” shall mean the recorded liabilities (including contingent liabilities that would be recorded in accordance with GAAP) of the Borrower and its Restricted Subsidiaries taken as a whole, as of the date hereof after giving effect to the consummation of the Transactions (including the execution and delivery of this Agreement, the making of the Loans and the use of proceeds of such Loans on the date hereof), determined in accordance with GAAP consistently applied.
“Status” shall mean the existence of Level I Status, Level II Status, Level III Status, Level IV Status, Level V Status, or Level VI Status, as the case may be, on such date. Changes in Status resulting from changes in the Consolidated Total Debt to Consolidated EBITDA Ratio shall become effective as of the first Business Day following each date that (a) Section 9.1 Financials for the first full fiscal quarter ended after the Closing Date are delivered to the Administrative Agent under Section 9.1 and (b) an officer’s certificate is delivered by Holdings to the Administrative Agent setting forth, with respect to such Section 9.1 Financials, the then-applicable Status, and shall remain in effect until the next change to be effected pursuant to this definition, provided that each determination of the Consolidated Total Debt to Consolidated EBITDA Ratio pursuant to this definition shall be made as of the end of the Test Period ending at the end of the fiscal period covered by the relevant Section 9.1 Financials.
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“Stock Equivalents” shall mean all securities convertible into or exchangeable for Capital Stock and all warrants, options or other rights to purchase or subscribe for any Capital Stock, whether or not presently convertible, exchangeable or exercisable.
“Subject Lien” shall have the meaning provided in Section 10.2(a).
“Subordinated Indebtedness” shall mean Indebtedness of the Borrower or any Guarantor that is by its express terms subordinated in right of payment to the obligations of the Borrower or such Guarantor, as applicable, under this Agreement or the Guarantee, as applicable.
“Subsidiary” of any Person shall mean and include (a) any corporation more than 50% of whose Capital Stock of any class or classes having by the terms thereof ordinary voting power to elect a majority of the directors of such corporation (irrespective of whether or not at the time Capital Stock of any class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency) is at the time owned by such Person directly or indirectly through Subsidiaries, or (b) any limited liability company, partnership, association, joint venture or other entity of which such Person directly or indirectly through Subsidiaries has more than a 50% equity interest at the time. Unless otherwise expressly provided, all references herein to a “Subsidiary” shall mean a Subsidiary of Holdings.
“Successor Borrower” shall have the meaning provided in Section 10.3(a).
“Supported QFC” shall have the meaning provided in Section 13.23.
“Swap Obligation” shall mean, with respect to any Credit Party, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of section 1(a)(47) of the Commodity Exchange Act.
“Swingline Commitment” shall mean $50,000,000.
“Swingline Exposure” shall mean at any time the aggregate principal amount at such time of all outstanding Swingline Loans. The Swingline Exposure of any Revolving Credit Lender at any time shall equal its Revolving Credit Commitment Percentage of the aggregate Swingline Exposure at such time.
“Swingline Lender” shall mean Xxxxx Fargo Bank, National Association, in its capacity as lender of Swingline Loans hereunder or any replacement or successor thereto.
“Swingline Loans” shall have the meaning provided in Section 2.1(c).
“Swingline Maturity Date” shall mean, with respect to any Swingline Loan, the date that is five Business Days prior to the Revolving Credit Maturity Date.
“Swiss Francs” shall mean the lawful currency of Switzerland.
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“TARGET2” means the Trans-European Automated Real-time Gross Settlement Express Transfer payment system which utilizes a single shared platform and which was launched on November 19, 2007.
“TARGET Day” means any day on which TARGET2 is open for the settlement of payments in Euros.
“Taxes” shall mean any and all present or future taxes, duties, levies, imposts, assessments, deductions, withholdings (including backup withholding), fees or other similar charges imposed by any Governmental Authority whether computed on a separate, consolidated, unitary, combined or other basis and any interest, fines, penalties or additions to tax with respect to the foregoing.
“Term Loan Commitment” shall mean, with respect to each Lender, such Lender’s Initial Term Loan Commitment, and, if applicable, New Term Loan Commitment with respect to any Series.
“Term Loan Extension Request” shall have the meaning provided in Section 2.14 (g)(i).
“Term Loan Lender” shall mean, at any time, any Lender that has a Term Loan Commitment or an outstanding Term Loan.
“Term Loans” shall mean the Initial Term Loans, any New Term Loans and any Extended Term Loans, collectively.
“Term RFR”
means, with respect to any Agreed Currency for any Interest Period, a rate per annum equal to (a) for
any Obligations, interest, fees, commissions or other amounts denominated
in, or calculated with respect to, Dollars, the greater of (i) Spread Adjusted Term SOFR and (ii) the Floor and (b) for any
Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to, Pounds Sterling or Swiss Francs,
the greater of (i) the forward-looking term rate for a period comparable to such Interest Period based on the RFR for such Agreed
Currency that is published by an authorized benchmark administrator and is displayed on a screen or other information service, each as
identified or selected by the Administrative Agent in its reasonable discretion at approximately a time and as of a date prior to the
commencement of such Interest Period determined by the Administrative Agent in its reasonable discretion in a manner substantially consistent
with market practice and (ii) the Floor.
“Term RFR Loan” means a Loan that bears interest at a rate based on Term RFR other than pursuant to clause (c) of the definition of “ABR”.
“Term RFR Notice” means a notification by the Administrative Agent to the Lenders and the Borrower of the occurrence of a Term RFR Transition Event.
“Term RFR Transition Date” means, in the case of a Term RFR Transition Event, the date that is thirty (30) calendar days after the Administrative Agent has provided the related Term RFR Notice to the Lenders and the Borrower pursuant to Section 2.17(c)(i)(C).
“Term RFR Transition Event” means, with respect to any Agreed Currency for any Interest Period, the determination by the Administrative Agent that (a) the applicable Term RFR for such Agreed Currency has been recommended for use by the Relevant Governmental Body and (b) the administration of such Term RFR is administratively feasible for the Administrative Agent.
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“Term SOFR” means,
(a) for any calculation with respect to a Term SOFR Loan, the Term SOFR Reference Rate for a tenor comparable to the applicable Interest Period on the day (such day, the “Periodic Term SOFR Determination Day”) that is two (2) RFR Business Days prior to the first day of such Interest Period, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (Eastern time) on any Periodic Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding RFR Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding RFR Business Day is not more than three (3) RFR Business Days prior to such Periodic Term SOFR Determination Day, and
(b) for any calculation with respect to an ABR Loan on any day, the Term SOFR Reference Rate for a tenor of one month on the day (such day, the “Base Rate Term SOFR Determination Day”) that is two (2) RFR Business Days prior to such day, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (Eastern time) on any Base Rate Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding RFR Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding RFR Business Day is not more than three (3) RFR Business Days prior to such Base Rate SOFR Determination Day
“Term SOFR Adjustment” means a percentage equal to 0.10% per annum with respet to any Available Tenor or any Interest Period.
“Term SOFR Administrator” means CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the Administrative Agent in its reasonable discretion).
“Term SOFR Reference Rate” means the forward-looking term rate based on SOFR.
“Term SOFR Loan” means a Loan that bears interest at a rate based on Term SOFR other than pursuant to clause (c) of the definition of “ABR”.
“Test Period” shall mean, for any determination under this Agreement, the four consecutive fiscal quarters of Holdings then last ended and for which Section 9.1 Financials shall have been required to be delivered to the Administrative Agent (or, before the first delivery of Section 9.1 Financials, the most recent period of four fiscal quarters at the end of which financial statements are available).
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“Title Policy” shall have the meaning provided in Section 9.14(d)(ii).
“Total Credit Exposure” shall mean, at any date, the sum, without duplication, of (a) the Total Revolving Credit Commitment at such date (or, if the Total Revolving Credit Commitment shall have terminated on such date, the aggregate Revolving Credit Exposure of all Lenders at such date), (b) the Total Term Loan Commitment at such date and (c) without duplication of clause (b), the Dollar Equivalent of the aggregate outstanding principal amount of all Term Loans at such date.
“Total Initial Term Loan Commitment” shall mean the sum of the Initial Term Loan Commitments of all Lenders.
“Total Revolving Credit Commitment” shall mean the sum of the Revolving Credit Commitments of all the Lenders.
“Total Term Loan Commitment” shall mean the sum of the Initial Term Loan Commitments, and the New Term Loan Commitments, if applicable, of all the Lenders.
“Transaction Expenses” shall mean any fees or expenses incurred or paid by Holdings, the Borrower or any of their Affiliates in connection with the Transactions, this Agreement and the other Credit Documents, the transactions contemplated hereby and thereby.
“Transactions” shall mean, collectively, the Acquisition, the Closing Date Refinancing, the consummation of the Mandatory Convertible Offering, the consummation of the Common Stock Offering, the issuance of the Senior Notes and the incurrence of the Initial Term Loans, the consummation of any other transactions in connection with the foregoing (including in connection with the Acquisition Agreement and the payment of the fees and expenses incurred in connection with any of the foregoing (including the Transaction Expenses)).
“Transferee” shall have the meaning provided in Section 13.6(e).
“Transitioned RFR Loan”
means a Loan that is an RFR Loan that would not have borne interest based upon a Daily Simple RFR or a Term RFR on the Closing Date. To
the extent that Loans denominated in Dollars bear interest based on a Daily Simple RFR or Term RFR after the Closing Date, such Loans
would be Transitioned RFR Loans.
“Type” shall mean (a) as to any Term Loan, its nature as an ABR Loan, a Eurocurrency Term Loan, Term SOFR Loan or a Term RFR Loan and (b) as to any Revolving Credit Loan, its nature as an ABR Loan, a Eurocurrency Revolving Credit Loan, Term SOFR Loan or a Daily RFR Simple Loan.
“UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended form time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
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“UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment .
“Unpaid Drawing” shall have the meaning provided in Section 3.4(a).
“Unreasonably Small Capital” shall mean for the period from the date hereof through the Maturity Date, the capital of the Borrower and its Restricted Subsidiaries on a consolidated basis and taken as a whole after consummation of the Transactions (including the execution and delivery of this Agreement, the making of the Loans and the use of proceeds of such Loans on the date hereof) is unreasonably small in relation to their business as contemplated on the Closing Date such that it calls into question whether it will continue to be a going concern for such period.
“Unrestricted Subsidiary” shall mean (1) any Subsidiary of Holdings which at the time of determination is an Unrestricted Subsidiary (as designated by the board of directors of Holdings, as provided below) and (2) any Subsidiary of an Unrestricted Subsidiary. For the avoidance of doubt, Holdings may not designate the Borrower as an Unrestricted Subsidiary.
The board of directors of Holdings may designate any Subsidiary of Holdings (including any existing Subsidiary and any newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries owns any Equity Interests or Indebtedness of, or owns or holds any Lien on, any property of, Holdings or any Subsidiary of Holdings (other than any Subsidiary of the Subsidiary to be so designated); provided that
(a) such designation complies with Section 10.5,
(b) no Event of Default under Section 11.1 or 11.5 shall have occurred or be continuing or would result therefrom; and
(c) each of (1) the Subsidiary to be so designated and (2) its Subsidiaries has not at the time of designation, and does not thereafter, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable with respect to any Indebtedness pursuant to which the lender has recourse to any of the assets of Holdings or any Restricted Subsidiary.
Any such designation by the board of directors of Holdings shall be notified by Holdings to the Administrative Agent by promptly delivering to the Administrative Agent a copy of the board resolution giving effect to such designation and a certificate of an Authorized Officer certifying that such designation complied with the foregoing provisions.
The board of directors of Holdings may designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that, immediately after giving effect to such designation no Event of Default under Section 11.1 or 11.5 shall have occurred and be continuing.
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“X.X.” xxx “Xxxxxx Xxxxxx” shall mean the United States of America.
“USD
LIBOR Transition Date” means, the earlier of (a) the date that all Available Tenors of USD LIBOR have either (i) permanently
or indefinitely ceased to be provided by IBA; provided that, at the time of such statement or
publication, there is no successor administrator that will continue to provide any Available Tenor of USD LIBOR or (ii) been announced
by the FCA pursuant to public statement or publication of information to be no longer representative and (b) the Early Opt-in Effective
Date, so long as, in the case of (a) or (b), a Benchmark Replacement has not as of such date replaced the Adjusted Eurocurrency Rate for
Dollars pursuant to Section 2.17(c)(i) as the result of an Other Benchmark Rate Election.
“Voting Stock” shall mean, with respect to any Person as of any date, the Capital Stock of such Person that is at the time entitled to vote in the election of the board of directors of such Person.
“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 Title IV of ERISA.
“Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
Section 1.2 Other Interpretive Provisions. With reference to this Agreement and each other Credit Document, unless otherwise specified herein or in such other Credit Document:
(a) The meanings of defined terms are equally applicable to the singular and plural forms of the defined terms.
(b) The words “herein,” “hereto,” “hereof” and “hereunder” and words of similar import when used in any Credit Document shall refer to such Credit Document as a whole and not to any particular provision thereof.
(c) Article, Section, Exhibit and Schedule references are to the Credit Document in which such reference appears.
(d) The term “including” is by way of example and not limitation.
(e) The term “documents” includes any and all instruments, documents, agreements, certificates, notices, reports, financial statements and other writings, however evidenced, whether in physical or electronic form.
(f) In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including”; the words “to” and “until” each mean “to but excluding”; and the word “through” means “to and including”.
(g) Section headings herein and in the other Credit Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Credit Document.
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Section 1.3 Accounting Terms.
(a) All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP, applied in a consistent manner.
(b) Notwithstanding anything to the contrary herein, for purposes of determining compliance with any test or covenant contained in this Agreement with respect to any period during which any Specified Transaction occurs, the Consolidated Total Debt to Consolidated EBITDA Ratio, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio and the Senior Secured Leverage Test shall each be calculated with respect to such period and such Specified Transaction on a Pro Forma Basis.
(c) Where reference is made to “the Company and its Restricted Subsidiaries on a consolidated basis” or similar language, such consolidation shall not include any Subsidiaries of the Company other than Restricted Subsidiaries.
Section 1.4 Rounding. Any financial ratios required to be maintained by Holdings pursuant to this Agreement (or required to be satisfied in order for a specific action to be permitted under this Agreement) shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number.
Section 1.5 References to Agreements, Laws, Etc. Unless otherwise expressly provided herein, (a) references to organizational documents, agreements (including the Credit Documents) and other Contractual Requirements shall be deemed to include all subsequent amendments, restatements, amendment and restatements, extensions, supplements and other modifications thereto, but only to the extent that such amendments, restatements, amendment and restatements, extensions, supplements and other modifications are permitted by any Credit Document; and (b) references to any Requirement of Law shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such Requirement of Law.
Section 1.6 Exchange Rates. Notwithstanding the foregoing, for purposes of any determination under Section 9, Section 10 or Section 11 or any determination under any other provision of this Agreement expressly requiring the use of a current exchange rate, all amounts incurred, outstanding or proposed to be incurred or outstanding in currencies other than dollars shall be translated into dollars at currency exchange rates in effect on the date of such determination; provided, however, that for purposes of determining compliance with Section 10 with respect to the amount of any Indebtedness, Restricted Investment, Lien, Asset Sale or Restricted Payment in a currency other than dollars, no Default or Event of Default shall be deemed to have occurred solely as a result of changes in rates of exchange occurring after the time such Indebtedness, Lien or Restricted Investment is incurred or Asset Sale or Restricted Payment made; provided that, for the avoidance of doubt, the foregoing provisions of this Section 1.6 shall otherwise apply to such Sections, including with respect to determining whether any Indebtedness, Lien or Investment may be incurred or disposition or Restricted Payment made at any time under such Sections. For purposes of any determination of Consolidated Total Debt, amounts in currencies other than dollars shall be translated into dollars at the currency exchange rates used in preparing the most recently delivered Section 9.1 Financials.
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Section 1.7 Pro Forma and Other Calculations.
(a) Notwithstanding anything to the contrary herein, (i) if any incurrence-based financial ratios or tests (including, without limitation, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio and the Consolidated Total Debt to Consolidated EBITDA Ratio tests) (“Financial Incurrence Tests”) would be satisfied in any subsequent fiscal quarter following the utilization of either (x) fixed baskets, exceptions or thresholds (including any related builder or grower component) that do not require compliance with a financial ratio or test (“Fixed Amounts”) or (y) baskets, exceptions and thresholds that require compliance with a financial ratio or test (including, without limitation, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio and the Consolidated Total Debt to Consolidated EBITDA Ratio tests) (any such amounts, “Incurrence Based Amounts”), then the reclassification of actions or transactions (or portions thereof), including the reclassification of utilization of any Fixed Amounts as incurred under any available corresponding Incurrence Based Amounts within the same covenant, shall be deemed to have automatically occurred even if not elected by the Borrower (unless the Borrower otherwise notifies the Administrative Agent) and (ii) in calculating any Incurrence Based Amounts, any (x) amounts concurrently incurred under the Revolving Credit Facility (or any other revolving facility), (y) Indebtedness concurrently incurred to fund original issue discount and/or upfront fees and (z) Indebtedness concurrently incurred in reliance on a Fixed Amount (including clause (a) of the definition of Maximum Incremental Facilities Amount), in each case of the foregoing clauses (x), (y) and (z), shall not be given effect in calculating the applicable Incurrence Based Amount (but giving Pro Forma Effect to all applicable and related transactions (including the use of proceeds of all Indebtedness to be incurred and any repayments, repurchases and redemptions of Indebtedness) and all other Pro Forma Adjustments).
(b) Whenever Pro Forma Effect is to be given to a transaction, the pro forma calculations shall be made in good faith by a responsible financial or accounting officer of the Borrower (and may include, for the avoidance of doubt and without duplication, cost savings, operating expense reductions, operating enhancements and synergies resulting from such Pro Forma Event which is being given Pro Forma Effect that have been or are expected to be realized; provided that such costs savings, operating expense reductions, operating enhancements and synergies are made in compliance with the definition of Pro Forma Adjustment). If any Indebtedness bears a floating rate of interest and is being given Pro Forma Effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date of determination had been the applicable rate for the entire period (taking into account for such entire period, any Hedging Obligation applicable to such Indebtedness with a remaining term of 12 months or longer, and in the case of any Hedging Obligation applicable to such Indebtedness with a remaining term of less than 12 months, taking into account such Hedging Obligation to the extent of its remaining term). Interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP. For purposes of making the computation referred to above, interest on any Indebtedness under a revolving credit facility computed on a Pro Forma Basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period (or, if lower, the greater of (i) maximum commitments under such revolving credit facilities as of the date of determination and (ii) the aggregate principal amount of loans outstanding under such a revolving credit facilities on such date). Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower may designate.
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(c) Notwithstanding anything to the contrary herein, for purposes of determining compliance with any test or covenant contained in this Agreement with respect to any period during which any Pro Forma Event occurs, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio shall be calculated with respect to such period and such Pro Forma Event on a Pro Forma Basis.
(d) In connection with any action being taken solely in connection with a Limited Condition Transaction, for purposes of:
(i) determining compliance with any provision of this Agreement which requires the calculation of any incurrence based financial ratio or test, including the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio or the Consolidated Total Debt to Consolidated EBITDA Ratio;
(ii) determining the accuracy of representations and warranties in Section 8 and/or whether a Default or Event of Default shall have occurred and be continuing under Section 11; or
(iii) testing availability under baskets set forth in this Agreement (including baskets measured as a percentage of Consolidated EBITDA or Consolidated Total Assets);
in each case, at the option of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), the date of determination of whether any such action is permitted hereunder, shall be deemed to be the date the definitive agreements for such Limited Condition Transaction are entered into (or, in respect of any transaction described in clause (b) or (c) of the definition of a Limited Condition Transaction, delivery of irrevocable notice or similar event) (the “LCT Test Date”), and if, after giving Pro Forma Effect to the Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) as if they had occurred at the beginning of the most recent Test Period ending prior to the LCT Test Date, the Borrower could have taken such action on the relevant LCT Test Date in compliance with such ratio or basket, such ratio or basket shall be deemed to have been complied with. For the avoidance of doubt, if the Borrower has made an LCT Election and any of the ratios or baskets for which compliance was determined or tested as of the LCT Test Date are exceeded as a result of fluctuations in any such ratio or basket, including due to fluctuations in Consolidated EBITDA of the Borrower or the Person subject to such Limited Condition Transaction, at or prior to the consummation of the relevant transaction or action, such baskets or ratios will not be deemed to have been exceeded as a result of such fluctuations. If the Borrower has made an LCT Election for any Limited Condition Transaction, then in connection with any subsequent calculation of any ratio or basket availability with respect to the incurrence of Indebtedness or Liens, or the making of Restricted Payments, mergers, the conveyance, lease or other transfer of all or substantially all of the assets of the Borrower, the prepayment, redemption, purchase, defeasance or other satisfaction of Indebtedness, or the designation of an Unrestricted Subsidiary on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated or (ii) the date that the definitive agreement for such Limited Condition Transaction is terminated or expires (or, if applicable, the irrevocable notice or similar event is terminated or expires) without consummation of such Limited Condition Transaction, any such ratio or basket shall be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated until such time as the applicable Limited Condition Transaction has actually closed or the definitive agreement with respect thereto has been terminated.
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(e) Notwithstanding anything to the contrary in this Section 1.7 or in any classification under GAAP of any Person, business, assets or operations in respect of which a definitive agreement for the disposition thereof has been entered into as discontinued operations, no Pro Forma Effect shall be given to any discontinued operations (and the EBITDA attributable to any such Person, business, assets or operations shall not be excluded for any purposes hereunder) until such disposition shall have been consummated.
(f) Any determination of Consolidated Total Assets shall be made by reference to the last day of the Test Period most recently ended on or prior to the relevant date of determination.
(g) Except as otherwise specifically provided herein, all computations of the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio, the Consolidated Total Debt to Consolidated EBITDA Ratio and other financial ratios and financial calculations (and all definitions (including accounting terms) used in determining any of the foregoing) shall be calculated, in each case, with respect to Holdings and the Restricted Subsidiaries on a consolidated basis.
Section 1.8 Divisions. For all purposes under the Credit Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws): (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized on the first date of its existence by the holders of its Equity Interests at such time.
Section 1.9 Additional Alternative Currencies (a) The Borrower may from time to time request that (i) Revolving Credit Loans be made in a currency other than those specifically listed in the definition of “Alternative Currency” and/or (ii) Letters of Credit be issued in a currency other than those specifically listed in the definition of “Alternative Currency”; provided that such requested currency is (A) a lawful currency (other than Dollars) that is readily available and freely transferable and convertible into Dollars, (B) dealt with in the London or other applicable offshore interbank deposit market and (C) for which no central bank or other governmental authorization in the country of issue of such currency is required to give authorization for the use of such currency by any Lender for making Loans or any Letter of Credit Issuer for issuing Letters of Credit, as applicable, unless such authorization has been obtained and remains in full force and effect. In the case of any such request with respect to the making of Revolving Credit Loans, such request shall be subject to the approval of the Administrative Agent and the Revolving Credit Lenders; and in the case of any such request with respect to the issuance of Letters of Credit, such request shall be subject to the approval of the Administrative Agent, the Revolving Credit Lenders and the applicable Letter of Credit Issuer or Letter of Credit Issuers.
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(b) Any such request shall be made to the Administrative Agent not later than 11:00 a.m. New York City time, (i) with respect to a request for an additional Alternative Currency, twenty (20) Business Days prior to the date of the desired Credit Event (or such other time or date as may be agreed by the Administrative Agent in its sole discretion) or (ii) with respect to a request for an additional Alternative Currency for issuance of Letters of Credit, five (5) Business Days prior to the date of the desired Letter of Credit (or such other time or date as may be agreed by the applicable Letter of Credit Issuer, in its sole discretion with notice to the Administrative Agent). In the case of any such request pertaining to Revolving Credit Loans, the Administrative Agent shall promptly notify each Revolving Credit Lender thereof; and in the case of any such request pertaining to Letters of Credit, the Administrative Agent shall promptly notify the Letter of Credit Issuer thereof. Each Revolving Credit Lender (in the case of any such request pertaining to Revolving Credit Loans) shall notify the Administrative Agent, not later than 11:00 a.m. New York City time, ten (10) Business Days after receipt of such request whether it consents, in its sole discretion, to the making of Revolving Credit Loans in such requested currency. The applicable Letter of Credit Issuer (in the case of a request pertaining to Letters of Credit) shall notify the Administrative Agent, not later than 11:00 a.m. New York City time, three Business Days after receipt of such request whether it consents, in its sole discretion, to the issuance of Letters of Credit in such requested currency.
(c) Any failure by a Revolving Credit Lender or the applicable Letter of Credit Issuer, as the case may be, to respond to such request within the time period specified in the preceding sentence shall be deemed to be a refusal by such Lender or the applicable Letter of Credit Issuer, as the case may be, to permit Revolving Credit Loans to be made or Letters of Credit to be issued in such requested currency. If the Administrative Agent and all the Revolving Credit Lenders consent to making Revolving Credit Loans in such requested currency, the Administrative Agent shall so notify the Borrower and such currency shall thereupon be deemed for all purposes to be an Alternative Currency hereunder for purposes of any borrowings of Revolving Credit Loans; and if the Administrative Agent, all the Revolving Credit Lenders and the applicable Letter of Credit Issuer consent to the issuance of Letters of Credit in such requested currency, the Administrative Agent shall so notify the Borrower and such currency shall thereupon be deemed for all purposes to be an Alternative Currency hereunder for purposes of any Letter of Credit issuances by such Letter of Credit Issuer. If the Administrative Agent shall fail to obtain consent to any request for an additional currency under this Section 1.19, the Administrative Agent shall promptly so notify the Borrower.
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Section 1.10 Rates The interest rate on Loans denominated in Dollars or an Alternative Currency may be determined by reference to a benchmark rate that is, or may in the future become, the subject of regulatory reform or cessation. Regulators have signaled the need to use alternative reference rates for some of these benchmark rates and, as a result, such benchmark rates may cease to comply with applicable laws and regulations, may be permanently discontinued or the basis on which they are calculated may change. The London interbank offered rate, which may be one of the benchmark rates with reference to which the interest rate on Loans may be determined, is intended to represent the rate at which contributing banks may obtain short-term borrowings from each other in the London interbank market. On March 5, 2021, the ICE Benchmark Administration (“IBA”), the administrator of the London interbank offered rate, and the Financial Conduct Authority (the “FCA”), the regulatory supervisor of IBA, announced in public statements (the “Announcements”) that the final publication or representativeness date for the London interbank offered rate for: (a) Pounds Sterling, Swiss Francs and Euros will be December 31, 2021, (b) Dollars for 1-week and 2-month tenor settings will be December 31, 2021 and (c) Dollars for overnight, 1-month, 3-month, 6-month and 12-month tenor settings will be June 30, 2023. No successor administrator for IBA was identified in such Announcements. As a result, it is possible that commencing immediately after such dates, the London interbank offered rate for such currencies and tenors may no longer be available or may no longer be deemed a representative reference rate upon which to determine the interest rate on applicable Loans. There is no assurance that the dates set forth in the Announcements will not change or that IBA or the FCA will not take further action that could impact the availability, composition or characteristics of any London interbank offered rate. Public and private sector industry initiatives have been and continue, as of the date hereof, to be underway to implement new or alternative reference rates to be used in place of London interbank offered rates. In the event that the London interbank offered rate or any other then-current Benchmark is no longer available or in certain other circumstances set forth in Section 2.17(c), such Section 2.17(c) provides a mechanism for determining an alternative rate of interest. The Administrative Agent will notify the Borrower, pursuant to Section 2.17(c), of any change to the reference rate upon which the interest rate on Loans is based. However, the Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, (i) the continuation of, administration of, submission of, calculation of or any other matter related to the London interbank offered rate, the rates in the definition of “Eurocurrency Rate”, “Adjusted Term SOFR” or any Benchmark, any component definition thereof or rates referenced in the definition thereof or with respect to any alternative, successor or replacement rate thereto (including any then-current Benchmark or any Benchmark Replacement), including whether the composition or characteristics of any such alternative, successor or replacement rate (including any Benchmark Replacement), as it may or may not be adjusted pursuant to Section 2.17(c), will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, such Benchmark or any other Benchmark prior to its discontinuance or unavailability, or (ii) the effect, implementation or composition of any Benchmark Replacement Conforming Changes. The Administrative Agent and its Affiliates or other related entities may engage in transactions that affect the calculation of a Benchmark, any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant adjustments thereto and such transactions may be adverse to the Borrower. The Administrative Agent may select information sources or services in its reasonable discretion to ascertain any Benchmark, any component definition thereof or rates referenced in the definition thereof, in each case pursuant to the terms of this Agreement and shall have no liability to the Borrower, any Lender or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.
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Section 2. Amount and Terms of Credit
Section 2.1 Commitments.
(a) Subject to and upon the terms and conditions herein set forth, each Lender having an Initial Term Loan Commitment severally agrees to make a loan or loans (each, an “Initial Term Loan”) to the Borrower in Dollars on the Closing Date, which Initial Term Loans shall not exceed for any such Lender the Initial Term Loan Commitment of such Lender and in the aggregate shall not exceed $1,300,000,000. Such Term Loans (i) may at the option of the Borrower be incurred and maintained as, and/or converted into, ABR Loans, Eurocurrency Rate Loans, Term SOFR Loans, Daily Simple RFR Loans or Term RFR Loans; provided that all Term Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Term Loans of the same Type, (ii) may be repaid or prepaid in accordance with the provisions hereof, but once repaid or prepaid, may not be re-borrowed, (iii) shall not exceed for any such Lender the Initial Term Loan Commitment of such Lender and (iv) shall not exceed in the aggregate the Total Initial Term Loan Commitments. On the Initial Term Loan Maturity Date, all then unpaid Initial Term Loans shall be repaid in full in Dollars.
(b)
(i)
Subject to and upon the terms and conditions herein set forth, each Revolving Credit Lender severally agrees to make Revolving
Credit Loans to the Borrower in Dollars or in an Alternative Currency from its lending office (each such loan, a “Revolving Credit
Loan”) in an aggregate principal amount not to exceed at any time outstanding the amount of such Xxxxxx’s Revolving Credit
Commitment; provided that the Revolving Credit Loans (A) shall be made at any time and from time to time on and after the Closing
Date and prior to the Revolving Credit Maturity Date, (B) may, at the option of the Borrower be incurred and maintained as, and/or converted
into, ABR Loans, Eurocurrency Rate Loans, Term SOFR Loans, Daily Simple RFR Loans or Term RFR
Loans that are Revolving Credit Loans; provided, further, that all Revolving Credit Loans made by each of the Lenders pursuant
to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type,
(C) may be repaid and re-borrowed in accordance with the provisions hereof, (D) shall not, for any Lender at any time, after giving effect
thereto and to the application of the proceeds thereof, result in such Lender’s Revolving Credit Exposure in respect of any Class
at such time exceeding such Xxxxxx’s Revolving Credit Commitment in respect of such Class at such time, and (E) shall not, after
giving effect thereto and to the application of the proceeds thereof, result at any time in the aggregate amount of the Lenders’
Revolving Credit Exposures at such time exceeding the Total Revolving Credit Commitment then in effect or the aggregate amount of the
Lenders’ Revolving Credit Exposures of any Class at such time exceeding the aggregate Revolving Credit Commitment with respect to
such Class. Revolving Credit Loans denominated in Dollars may be ABR Loans, Eurocurrency Rate Loans,
Daily Simple RFR Loans or Term RFR Loans or Term SOFR Loans, and Revolving Credit
Loans denominated in any Alternative Currency shall be Eurocurrency Rate Loans or Term RFR Loans, as further provided herein.
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(ii) Each Lender may, at its option, make any Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that (A) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan and (B) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply). On the Revolving Credit Maturity Date, all Revolving Credit Loans shall be repaid in full.
(c) Subject to and upon the terms and conditions herein set forth, the Swingline Lender, in its individual capacity, agrees, at any time and from time to time on and after the Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each a “Swingline Loan” and, collectively the “Swingline Loans”) to the Borrower in Dollars, which Swingline Loans (i) shall be ABR Loans or Daily Simple RFR Loans, (ii) shall have the benefit of the provisions of Section 2.1(d), (iii) shall not exceed at any time outstanding the Swingline Commitment, (iv) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in the aggregate amount of the Lenders’ Revolving Credit Exposures at such time exceeding the Revolving Credit Commitment then in effect and (v) may be repaid and re-borrowed in accordance with the provisions hereof. On the Swingline Maturity Date, all Swingline Loans shall be repaid in full. The Swingline Lender shall not make any Swingline Loan after receiving a written notice from Holdings, or the Borrower, Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event of Default exists and is continuing until such time as the Swingline Lender shall have received written notice of (i) rescission of all such notices from the party or parties originally delivering such notice or (ii) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1.
(d)
On any Business Day, the Swingline Lender may, in its sole discretion, give notice to each Revolving Credit Lender that all then-outstanding
Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans denominated in Dollars, in which case Revolving Credit Loans
denominated in Dollars constituting ABR Loans or Daily SimpleTerm
RSOFR Loans (each such Borrowing, a “Mandatory
Borrowing”) shall be made on the immediately succeeding Business Day by each Revolving Credit Lender pro rata based on each
Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay
the Swingline Lender for such outstanding Swingline Loans. Each Revolving Credit Lender hereby irrevocably agrees to make such Revolving
Credit Loans upon one Business Day’s notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the
preceding sentence and on the date specified to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory
Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified
in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of
such Mandatory Borrowing or (v) any reduction in the Total Revolving Credit Commitment after any such Swingline Loans were made. In the
event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise
required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of Holdings), each Revolving
Credit Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation
of the outstanding Swingline Loans as shall be necessary to cause the Lenders to share in such Swingline Loans ratably based upon their
respective Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall
be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to
the purchased participation, shall be payable to such Lender purchasing same from and after such date of purchase.
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Section 2.2 Minimum Amount of Each Borrowing; Maximum Number of Borrowings. The aggregate principal amount of each Borrowing of Term Loans or Revolving Credit Loans shall be in a minimum amount of at least the Minimum Borrowing Amount for such Type of Loans and in a multiple of $100,000 (or the Dollar Equivalent thereof) in excess thereof and Swingline Loans shall be in a minimum amount of $500,000 and in a multiple of $100,000 in excess thereof (except that Mandatory Borrowings shall be made in the amounts required by Section 2.1(d) and Revolving Credit Loans to reimburse the Letter of Credit Issuer with respect to any Unpaid Drawing shall be made in the amounts required by Section 3.3 or Section 3.4, as applicable). More than one Borrowing may be incurred on any date; provided that at no time shall there be outstanding more than five Borrowings of Eurocurrency Rate Loans or Term SOFR Loans that are Term Loans or Term RFR Loans and fifteen Borrowings of Eurocurrency Rate Loans, Term SOFR Loans or RFR Loans that are Revolving Credit Loans under this Agreement.
Section 2.3 Notice of Borrowing.
(a)
To request a Term Loan Borrowing (whether such Borrowing is to be an Initial Term Loan Borrowing, a New Term Loan Borrowing or
an Extended Term Loan Borrowing), the Borrower shall give the Administrative Agent at the Administrative Agent’s Office written
notice of such request (A) in the case of a EurocurrencyTerm
SOFR Borrowing in Dollars, not later than 12:00 p.m. (New York City time)
at least three Eurocurrency Banking(3) RFR Business
Days before the date of the proposed Borrowing (or one Business Day in the case of a Borrowing on the Closing Date), (B) in
the case of an RFR Borrowing denominated in Dollars, not later than 12:00 noon, (New York City time), five (5) RFR Business Days before
the date of the proposed Borrowing,[reserved], (C) in the case of a Eurocurrency
Borrowing in an Alternative Currency, not later than 12:00 noon (New York City time), 5 (five
(5) Eurocurrency Banking Days before the date of the proposed Borrowing, (D) in the case of an
RFR Borrowing in an Alternative Currency not later than 12:00 noon (New York City time), five (5) RFR Business Days before the date of
the proposed Borrowing, (E) in the case of an ABR Borrowing, prior to 12:00 p.m. (New York City time) at least one Business Day before
the date of the proposed Borrowing. Such notice (a “Notice of Borrowing”) shall specify (A) the aggregate principal
amount of the Term Loans to be made, (B) the date of the Borrowing (which shall be the Closing Date) and (C) whether the Term Loans shall
consist of ABR Loans, and/or Eurocurrency Rate Loans and/or Term SOFR Loans and/or Daily Simple
RFR Loans and/or Term RFR Loans and, if the Term Loans are to include Eurocurrency Rate Loans, Term SOFR
Loans or Term RFR Loans, the Interest Period to be initially applicable thereto; and be substantially in the form of Exhibit
M attached hereto, or such other written form approved by the Adminitrative Agent. If the Borrower fails to specify a type of Loan denominated
in Dollars in a Notice of Borrowing, then the applicable Loans shall be made as ABR Loans. If the Borrower fails to specify the Currency
of a Loan in a Notice of Borrowing, then the applicable Loans shall be made in Dollars. If the Borrower fails to specify an Interest Period,
it will be deemed to have specified an Interest Period of one month.
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(b)
Whenever the Borrower desires to incur Revolving Credit Loans (other than Mandatory Borrowings or borrowings to repay Unpaid Drawings),
it shall give the Administrative Agent at the Administrative Agent’s Office written notice of such request (A) in the case of a
EurocurrencyTerm SOFR Borrowing in
Dollars, not later than 12:00 p.m. (New York City time) at least three Eurocurrency Banking
Days before the date of the proposed Borrowing, (B) in the case of an RFR Borrowing denominated in Dollars, not later than 12:00 noon,
(New York City time), five (5(3) RFR Business Days before the date of the proposed
Borrowing, (B) [reserved], (C) in the case of a Eurocurrency Borrowing in an Alternative Currency,
not later than 12:00 noon (New York City time), 5 (five (5)
Eurocurrency Banking Days before the date of the proposed Borrowing, (D) in the case of an RFR Borrowing in an Alternative Currency not
later than 12:00 noon (New York City time), five (d5)
RFR Business Days before the date of the proposed Borrowing, (E) in the case of an ABR Borrowing, prior to 12:00 p.m. (New York City time)
at least one Business Day before the date of the proposed Borrowing. Each such Notice of Borrowing, except as otherwise expressly provided
in Section 2.10, shall specify (i) the aggregate principal amount of the Revolving Credit Loans to be made pursuant to such Borrowing,
(ii) the date of Borrowing (which shall be a Business Day) and (iii) whether the respective Borrowing shall consist of ABR Loans, Eurocurrency
Rate Loans, Term SOFR Loans or RFR Loans that are Revolving Credit Loans and, if Eurocurrency
Rate Loans, Term SOFR Loans or Term RFR Loans that are Revolving Credit Loans, the Interest Period
to be initially applicable thereto; and be substantially in the form of Exhibit M attached hereto, or such other written form approved
by the Adminitrative Agent. If the Borrower fails to specify a type of Loan denominated in Dollars in a Notice of Borrowing, then the
applicable Loans shall be made as ABR Loans. If the Borrower fails to specify the Currency of a Loan in a Notice of Borrowing, then the
applicable Loans shall be made in Dollars. If the Borrower fails to specify an Interest Period, it will be deemed to have specified an
Interest Period of one month. The Administrative Agent shall promptly give each Revolving Credit Lender written notice of each proposed
Borrowing of Revolving Credit Loans, of such Xxxxxx’s Revolving Credit Commitment Percentage thereof and of the other matters covered
by the related Notice of Borrowing.
(c) Whenever the Borrower desires to incur Swingline Loans hereunder, it shall give the applicable Swingline Lender for Swingline Loans denominated in Dollars written notice with a copy to the Administrative Agent of each Borrowing of Swingline Loans prior to in the case of Swingline Loans denominated in Dollars, 1:30 p.m. (New York City time) on the date of such Borrowing. Each such notice shall specify (i) the aggregate principal amount of the Swingline Loans to be made pursuant to such Borrowing and (ii) the date of Borrowing (which shall be a Business Day).
(d) Mandatory Borrowings shall be made upon the notice specified in Section 2.1(d), with the Borrower irrevocably agreeing, by its incurrence of any Swingline Loan, to the making of Mandatory Borrowings as set forth in such Section.
(e) Borrowings to reimburse Unpaid Drawings shall be made upon the notice specified in Section 3.4(a).
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(f) Without in any way limiting the obligation of the Borrower to confirm in writing any notice it shall give hereunder by telephone (which such obligation is absolute), the Administrative Agent may act prior to receipt of written confirmation without liability upon the basis of such telephonic notice believed by the Administrative Agent in good faith to be from an Authorized Officer of Holdings or the Borrower.
Section 2.4 Disbursements of Funds.
(a) No later than 2:00 p.m. (New York City time) on the date specified in each Notice of Borrowing (including Mandatory Borrowings), each Lender shall make available its pro rata portion, if any, of each Borrowing requested to be made on such date in the manner provided below; provided that on the Closing Date, such funds may be made available at such earlier time as may be agreed among the Lenders, Holdings and the Administrative Agent for the purpose of consummating the Transactions; provided, further that all Swingline Loans shall be made available to the Borrower in the full amount thereof by the Swingline Lender no later than 4:00 p.m. (New York City time).
(b) Each Lender shall make available all amounts it is to fund to the Borrower under any Borrowing for its applicable Commitments, and in immediately available funds, to the Administrative Agent at the Administrative Agent’s Office and the Administrative Agent will (except in the case of Mandatory Borrowings and Borrowings to repay Unpaid Drawings) make available to the Borrower, by depositing to an account designated by Holdings or the Borrower to the Administrative Agent the aggregate of the amounts so made available in the applicable currency. Unless the Administrative Agent shall have been notified by any Lender prior to the date of any such Borrowing that such Lender does not intend to make available to the Administrative Agent its portion of the Borrowing or Borrowings to be made on such date, the Administrative Agent may assume that such Xxxxxx has made such amount available to the Administrative Agent on such date of Borrowing, and the Administrative Agent, in reliance upon such assumption, may (in its sole discretion and without any obligation to do so) make available to the Borrower a corresponding amount. If such corresponding amount is not in fact made available to the Administrative Agent by such Lender and the Administrative Agent has made available such amount to the Borrower, the Administrative Agent shall be entitled to recover such corresponding amount from such Lender. 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 in the applicable currency or, upon notice from the Administrative Agent thereof, any other payments received in error by Holdings, the Borrower or its Subsidiaries from the Administrative Agent (such notice to include the amount, wire transfer information and explanation of the error) to the extent Holdings, the Borrower or its Subsidiaries continues to have such funds at the time of such notice unless Holdings, the Borrower or such Subsidiary reasonably determines in good faith (which determination shall be conclusive absent manifest error) that it was entitled to have received such payment under this Agreement and such payment was not received by it in error. If the Administrative Agent receives any payment in error from Holdings, the Borrower or its Subsidiaries, upon notice from the Borrower (such notice to include the amount, wire transfer information and explanation of the error), the Administrative Agent shall immediately pay such amount to the Borrower to the extent the Administrative Agent continues to have such funds at the time of such notice unless the Administrative Agent reasonably determines in good faith (which determination shall be conclusive absent manifest error) that it was entitled to have received such payment and such payment was not received by it in error. In respect of any such erroneous payments by the other, Holdings, the Borrower and its Subsidiaries and the Administrative Agent, mutually hereby waive any defense based on “discharge for value” or any similar doctrine. The Administrative Agent shall also be entitled to recover from such Lender or the Borrower interest on such corresponding amount in respect of each day from the date such corresponding amount was made available by the Administrative Agent to the Borrower to the date such corresponding amount is recovered by the Administrative Agent, at a rate per annum equal to (i) if paid by such Lender, the Overnight Rate or (ii) if paid by the Borrower, the then-applicable rate of interest or fees, calculated in accordance with Section 2.8, for the respective Loans.
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(c) Nothing in this Section 2.4 shall be deemed to relieve any Lender from its obligation to, fulfill its commitments hereunder or to prejudice any rights that the Borrower may have against any Lender as a result of any default by such Lender hereunder (it being understood, however, that no Lender shall be responsible for the failure of any other Lender to fulfill its commitments hereunder).
Section 2.5 Repayment of Loans; Evidence of Debt.
(a) The Borrower shall repay to the Administrative Agent, for the benefit of the applicable Lenders, on the Initial Term Loan Maturity Date, the then-outstanding Initial Term Loans made to the Borrower. The Borrower shall repay to the Administrative Agent for the benefit of the Revolving Credit Lenders, on the Revolving Credit Maturity Date, the then outstanding Revolving Credit Loans made to the Borrower in currency in which such Revolving Credit Loans are denominated. The Borrower shall repay to the Swingline Lender, on the Swingline Maturity Date, the then outstanding Swingline Loans made to the Borrower in Dollars.
(b) The Borrower shall repay to the Administrative Agent, in Dollars, for the benefit of the applicable, Initial Term Loan Lenders, on each date set forth below (or, if not a Business Day, the immediately preceding Business Day) (each, an “Initial Term Loan Repayment Date”), a principal amount in respect of each of the Initial Term Loans made to the Borrower equal to (x) the outstanding principal amount Initial Term Loans made to the Borrower on the Closing Date multiplied by (y) the percentage set forth below opposite such Initial Term Loan Repayment Date (each, an “Initial Term Loan Repayment Amount”):
|
Date |
Initial Term Loan Repayment Amount |
| March 31, 2022 | 1.25% |
| June 30, 2022 | 1.25% |
| September 30, 2022 | 1.25% |
| December 31, 2022 | 1.25% |
| March 31, 2023 | 1.25% |
| June 30, 2023 | 1.25% |
| September 30, 2023 | 1.25% |
| December 31, 2023 | 1.25% |
| March 31, 2024 | 1.875% |
| June 30, 2024 | 1.875% |
| September 30, 2024 | 1.875% |
| December 31, 2024 | 1.875% |
| March 31, 2025 | 2.50% |
| June 30, 2025 | 2.50% |
| September 30, 2025 | 2.50% |
| December 31, 2025 | 2.50% |
| March 31, 2026 | 3.125% |
| June 30, 2026 | 3.125% |
| September 30, 2026 | 3.125% |
| Initial Term Loan Maturity Date | Remaining outstanding amounts |
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(c) In the event that any New Term Loans are made, such New Term Loans shall, subject to Section 2.14(d), be repaid by the Borrower in the amounts (each, a “New Term Loan Repayment Amount”) and on the dates (each a “New Term Loan Repayment Date”) set forth in the applicable Joinder Agreement. In the event that any Extended Term Loans are established, such Extended Term Loans shall, subject to Section 2.14(f), be repaid by the Borrower in the amounts (each such amount with respect to any Extended Repayment Date, an “Extended Term Loan Repayment Amount”) and on the dates (each, an “Extended Repayment Date”) set forth in the applicable Extension Amendment.
(d) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to the appropriate lending office of such Lender resulting from each Loan made by such lending office of such Lender from time to time, including the amounts of principal and interest payable and paid to such lending office of such Lender from time to time under this Agreement.
(e) The Administrative Agent shall maintain the Register pursuant to Section 13.6(b), and a subaccount for each Lender, in which Register and subaccounts (taken together) shall be recorded (i) the amount of each Loan made hereunder, whether such Loan is an Initial Term Loan, New Term Loan, Revolving Credit Loan or Swingline Loan, as applicable, the Type of each Loan made, the currency in which made, the name of the Borrower and the Interest Period, if any, applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder from the Borrower and each Xxxxxx’s share thereof.
(f) The entries made in the Register and accounts and subaccounts maintained pursuant to clauses (d) and (e) of this Section 2.5 shall, to the extent permitted by applicable law, be prima facie evidence of the existence and amounts of the obligations of the Borrower therein recorded; provided, however, that the failure of any Lender, the Administrative Agent or the Swingline Lender to maintain such account, such Register or subaccount, as applicable, or any error therein, shall not in any manner affect the obligation of the Borrower to repay (with applicable interest) the Loans made to the Borrower by such Lender in accordance with the terms of this Agreement.
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Section 2.6 Conversions and Continuations.
(a)
Subject to the penultimate sentence of this clause (a), (x) the Borrower shall have the option on any Business Day to convert
all or a portion equal to at least $5,000,000 (or the Dollar Equivalent thereof) of the outstanding principal amount of Term Loans of
one Type or Revolving Credit Loans of one Type into a Borrowing or Borrowings of another Type and (y) the Borrower shall have the option
on any Business Day, (1) in the case of Eurocurrency RateTerm
SOFR Loans or Term RFR Loans denominated in Dollars, (i) convert Eurocurrency
Rate Loans or Term RSOFR Loans
into ABR Loans or (ii) continue any such eurocurrency Rate Loans as Eurocurrency Rate Loans or Term
RSOFR Loans as Term RSOFR
Loans for an additional Interest Period, (2) in the case of Daily Simple RFR Loans denominated in Dollars,
(i) convert all or any part of any such outstanding Daily Simple RFR Loans into ABR Loans or (ii) continue any such Daily Simple RFR Loans
as Daily Simple RFR Loans,[reserved], (3) in the case of a Eurocurrency Rate Loan
or Term RFR Loans denominated in any Alternative Currency, continue any such Eurocurrency Rate Loans as Eurocurrency Rate Loans or Term
RFR Loans as Term RFR Loans and (4) in the case of a Daily Simple RFR Loan denominated in any Alternative Currency, upon the occurrence
of the interest payment date pursuant to Section 2.8(d) thereof, continue any such Daily Simple RFR Loans as Daily Simple RFR Loans, provided
that (i) no partial conversion of Eurocurrency Rate Loans, Term SOFR Loans or Term RFR Loans shall
reduce the outstanding principal amount of Eurocurrency Rate Loans, Term SOFR Loans or Term RFR
Loans, as applicable, made pursuant to a single Borrowing to less than the Minimum Borrowing Amount, (ii) ABR Loans or Daily Simple RFR
Loans may not be converted into Eurocurrency Rate Loans, Term SOFR Loans or Term RFR Loans if
a Default or Event of Default is in existence on the date of the conversion and the Administrative Agent has or the Required Lenders have
determined in its or their sole discretion not to permit such conversion, (iii) Eurocurrency Rate Loans,
Term SOFR Loans or Term RFR Loans may not be continued as Eurocurrency Rate Loans, Term SOFR Loans
or Term RFR Loans for an additional Interest Period if a Default or Event of Default is in existence on the date of the proposed continuation
and the Administrative Agent has or the Required Lenders have determined in its or their sole discretion not to permit such continuation
and (iv) Borrowings resulting from conversions pursuant to this Section 2.6 shall be limited in number as provided in Section
2.2. Each such conversion or continuation shall be effected by the Borrower by giving the Administrative Agent at the Administrative
Agent’s Office prior to 1:00 p.m. (New York City time) at least (i) three Eurocurrency Banking Days’ notice, in the case of
a continuation of or conversion to Eurocurrency Rate Loans (other than in the case of a notice delivered on the Closing Date pursuant
to clause (d), which shall be deemed to be effective on the Closing Date), (ii) three RFR Business
Days’ notice, in the case of a continuation or a conversion to Term SOFR Loans, (iii) five RFR Business Days’ notice,
in the case of a continuation of or a conversion to Term RFR Loans, (iiiiv)
five RFR Business Days’ notice, in the case of a continuation of or a conversion to Daily Simple RFR Loans or (ivv)
one Business Day’s notice in the case of a conversion into ABR Loans prior written notice (each, a “Notice of Conversion
or Continuation”) specifying the Loans to be so converted or continued, the Type of Loans to be converted or continued into
and, if such Loans are to be converted into or continued as Eurocurrency Rate Loans, Term SOFR Loans
or Term RFR Loans, the Interest Period to be initially applicable thereto. The Administrative Agent shall give each applicable Lender
notice as promptly as practicable of any such proposed conversion or continuation affecting any of its Loans.
(b)
If any Default or Event of Default is in existence at the time of any proposed continuation of any Eurocurrency
Rate Loans or Term RFR Loans denominated in DollarsTerm SOFR Loans and the Administrative
Agent has or the Required Lenders have determined in its or their sole discretion not to permit such continuation, such Eurocurrency
Rate Loans or Term RSOFR Loans
shall be automatically converted on the last day of the current Interest Period into ABR Loans or Daily
Simple RFR Loans. If upon the expiration of any Interest Period in respect of Eurocurrency Rate Loans or Term RFR Loans
(other than Borrowings of Eurocurrency Rate Loans or Term RFR Loans denominated in Euro or any other Alternative Currencies), the Borrower
has failed to elect a new Interest Period to be applicable thereto as provided in clause (a), the Borrower shall be deemed to have
elected to convert such Borrowing of Eurocurrency Rate Loans or Term RFR Loans into a Borrowing of ABR Loans or Daily Simple RFR Loans,
effective as of the expiration date of such current Interest Period. Notwithstanding the foregoing, with respect to the Borrowings of
Eurocurrency Rate Loans or Term RFR Loans denominated in Euro or Alternative Currencies, in connection with the occurrence of any of the
events described in the preceding two sentences, at the expiration of the then current Interest Period each such Borrowing shall be automatically
continued as a Borrowing of Eurocurrency Rate Loans or Term RFR Loans with an Interest Period of one month.
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(c) No Loan may be converted into or continued as a Loan denominated in a different currency.
Section 2.7 Pro Rata Borrowings. Each Borrowing of Initial Term Loans under this Agreement shall be made by the Lenders pro rata on the basis of their then-applicable Initial Term Loan Commitments. Each Borrowing of Revolving Credit Loans under this Agreement shall be made by the Revolving Credit Lenders pro rata on the basis of their then-applicable Revolving Credit Commitment Percentages. Each Borrowing of New Term Loans under this Agreement shall be made by the Lenders pro rata on the basis of their then-applicable New Term Loan Commitments. Each Borrowing of New Revolving Loans under this Agreement shall be made by the Revolving Credit Lenders pro rata on the basis of their then-applicable New Revolving Credit Commitments. It is understood that (a) no Lender shall be responsible for any default by any other Lender in its obligation to make Loans hereunder and that each Lender severally but not jointly shall be obligated to make the Loans provided to be made by it hereunder, regardless of the failure of any other Lender to fulfill its commitments hereunder and (b) other than as expressly provided herein with respect to a Defaulting Lender, failure by a Lender to perform any of its obligations under any of the Credit Documents shall not release any Person from performance of its obligation under any Credit Document.
Section 2.8 Interest.
(a) The unpaid principal amount of each Revolving Credit Loan and Term Loan denominated in Dollars, shall bear interest from the date of the Borrowing thereof until maturity (whether by acceleration or otherwise) at a rate per annum that shall at all times be the Applicable Margin for ABR Loans plus the ABR, in each case, in effect from time to time.
(b) The unpaid principal amount of each Revolving Credit Loan and Term Loan denominated in any Agreed Currency, shall bear interest from the date of the Borrowing thereof until maturity thereof (whether by acceleration or otherwise) at a rate per annum that shall at all times be the Benchmark for Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to, such Agreed Currency plus the Applicable Margin.
(c) If all or a portion of (i) the principal amount of any Loan or (ii) any interest payable thereon or any other amount payable hereunder shall not be paid when due (whether at the stated maturity, by acceleration or otherwise), (A) such overdue Eurocurrency Rate Loans and Term RFR Loans shall bear interest at a rate per annum that is (the “Default Rate”) two percent (2%) in excess of the rate (including the Applicable Margin) then applicable to Eurocurrency Rate Loans, Term SOFR Loans or Term RFR Loans, as applicable, until the end of the applicable Interest Period and shall automatically be converted to a ABR Loan denominated in Dollars (in an amount equal to the Dollar Equivalent of the applicable Alternative Currency, if applicable) at the end of the applicable Interest Period therefor and shall, as of such conversion, bear interest at a rate per annum of two percent (2%) in excess of the rate (including the Applicable Margin) then applicable to ABR Loans, (B) the Borrower shall no longer have the option to request Eurocurrency Rate Loans, Term SOFR Loans, RFR Loans, Swingline Loans or Letters of Credit, (C) all Daily Simple RFR Loans shall automatically be converted to a ABR Loan denominated in Dollars (in an amount equal to the Dollar Equivalent of the applicable Alternative Currency, if applicable) immediately and shall, as of such conversion, with respect to such overdue amount, bear interest at a rate per annum of two percent (2%) in excess of the rate (including the Applicable Margin) then applicable to ABR Loans, (D) all overdue ABR Loans and other Obligations arising hereunder or under any other Credit Document shall bear interest at a rate per annum equal to two percent (2%) in excess of the rate (including the Applicable Margin) then applicable to ABR Loans or such other Obligations arising hereunder or under any other Credit Document and (E) all accrued and unpaid interest shall be due and payable on demand of the Administrative Agent.
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(d) Interest on each Loan shall accrue from and including the date of any Borrowing to but excluding the date of any repayment thereof and shall be payable in the same currency in which the Loan is denominated; provided that any Loan that is repaid on the same date on which it is made shall bear interest for one day. Except as provided below, interest shall be payable (i) in respect of each ABR Loan or a Daily Simple RFR Loan, quarterly in arrears on the last Business Day of each March, June, September and December, (ii) in respect of each Eurocurrency Rate Loan, Term SOFR Loan or Term RFR Loan, on the last day of each Interest Period applicable thereto and, in the case of an Interest Period in excess of three months, on each date occurring at three-month intervals after the first day of such Interest Period and (iii) in respect of each Loan, (A) on any prepayment in respect of Eurocurrency Rate Loans, Term SOFR Loans or Term RFR Loans, (B) at maturity (whether by acceleration or otherwise) and (C) after such maturity, on demand.
(e) All computations of interest hereunder shall be made in accordance with Section 5.5.
(f) The Administrative Agent, upon determining the interest rate for any Borrowing of Eurocurrency Rate Loans or Term SOFR Loans, shall promptly notify the Borrower and the relevant Lenders thereof. Each such determination shall, absent clearly demonstrable error, be final and conclusive and binding on all parties hereto.
Section 2.9 Interest Periods. At the time Holdings or the Borrower gives a Notice of Borrowing or Notice of Conversion or Continuation in respect of the making of, or conversion into or continuation as, a Borrowing of Eurocurrency Rate Loans, Term SOFR Loans or Term RFR Loan in accordance with Section 2.6(a), Holdings or the Borrower shall give the Administrative Agent written notice of the Interest Period applicable to such Borrowing, which Interest Period shall, at the option of Holdings or the Borrower be a one, three or six month period (or if available to all the Lenders making such Eurocurrency Rate Loans, Term SOFR Loans or Term RFR Loans as determined by such Lenders in good faith based on prevailing market conditions, a twelve month or shorter period). The Interest Period of any Borrowings in Pounds Sterling or Swiss Francs shall be a three month period.
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Notwithstanding anything to the contrary contained above:
(a) the initial Interest Period for any Borrowing of Eurocurrency Rate Loans, Term SOFR Loans or Term RFR Loans shall commence on the date of such Borrowing (including the date of any conversion from a Borrowing of ABR Loans) 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 relating to a Borrowing of Eurocurrency Rate Loans, Term SOFR Loans or Term RFR Loans begins on the last Business Day of a calendar month or begins on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period, such Interest Period shall end on the last Business Day of the calendar month at the end of such Interest Period;
(c) if any Interest Period would otherwise expire on a day that is not a Business Day, such Interest Period shall expire on the next succeeding Business Day; provided that if any Interest Period in respect of a Eurocurrency Rate Loan, Term SOFR Loans or Term RFR Loan would otherwise expire on a day that is not a Business Day but is a day of the month after which no further Business Day occurs in such month, such Interest Period shall expire on the immediately preceding Business Day; and
(d) the Borrower shall not be entitled to elect any Interest Period in respect of any Eurocurrency Rate Loan, Term SOFR Loans or Term RFR Loan if such Interest Period would extend beyond the Maturity Date of such Loan.
Section 2.10 Increased Costs, Illegality, Etc.
(a) In the event that (x) in the case of clause(i) below, the Administrative Agent and (y) in the case of clauses (ii) and (iii) below, the Required Term Loan Lenders (with respect to Term Loans) or the Required Revolving Credit Lenders (with respect to Revolving Credit Commitments) shall have reasonably determined (which determination shall, absent clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the Eurocurrency Rate, Term SOFR or Term RFR for any Interest Period that (x) deposits in the principal amounts and currencies of the Loans comprising such Eurocurrency Borrowing, Term SOFR Borrowing or Term RFR Borrowing are not generally available in the relevant market or (y) by reason of any changes arising on or after the Closing Date affecting the interbank LIBOR market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of Eurocurrency Rate or Term RFR; or
(ii) at any time, that such Lenders shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Eurocurrency Rate Loans, Term SOFR Loans or Term RFR Loans (including any increased costs or reductions attributable to Taxes, other than any increase or reduction attributable to Taxes described in clauses (i) or (ii) of paragraph (d) of this Section 2.10) because of (x) any Change in Law and/or (y) other circumstances affecting the interbank LIBOR market or the position of such Lender in such market; or
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(iii) at any time, that the making or continuance of any Eurocurrency Rate Loan or Term RFR Loan has become unlawful by compliance by such Lenders in good faith with any law, governmental rule, regulation, guideline or order (or would conflict with any such governmental rule, regulation, guideline or order not having the force of law even though the failure to comply therewith would not be unlawful), or has become impracticable as a result of a contingency occurring after the Closing Date that materially and adversely affects the interbank LIBOR market;
then, and in any such event, such Required Term Loan Lenders or Required Revolving Credit Lenders, as applicable (or the Administrative Agent, in the case of clause (i) above) shall within a reasonable time thereafter give notice (if by telephone, confirmed in writing) to Holdings and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders). Thereafter (x) in the case of clause (i) above, Eurocurrency Rate Loans, Term SOFR Loans or Term RFR Loans shall no longer be available until such time as the Administrative Agent notifies Holdings and the Borrower and the Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist (which notice the Administrative Agent agrees to give at such time when such circumstances no longer exist), and any Notice of Borrowing or Notice of Conversion given by Holdings or the Borrower with respect to Eurocurrency Rate Loans, Term SOFR Loans or Term RFR Loans that have not yet been incurred shall be deemed rescinded by Holdings or the Borrower, (y) in the case of clause (ii) above, the Borrower shall pay to such Lenders, promptly after receipt of written demand therefor such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Required Term Loan Lenders or Required Revolving Credit Lenders, as applicable, in their reasonable discretion shall determine) as shall be required to compensate such Lenders for such actual increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lenders, showing in reasonable detail the basis for the calculation thereof, submitted to the Borrower by such Lenders shall, absent clearly demonstrable error, be final and conclusive and binding upon all parties hereto) and (z) in the case of subclause (iii) above, the Borrower shall take one of the actions specified in subclause (x) or (y), as applicable, of Section 2.10(b) promptly and, in any event, within the time period required by law.
(b) At any time that any Eurocurrency Rate Loan, Term SOFR Loan or Term RFR Loan is affected by the circumstances described in Section 2.10(a)(ii) or (iii), the Borrower may (and in the case of a Eurocurrency Rate Loan or Term RFR Loan affected pursuant to Section 2.10(a)(iii) shall) either (x) if the affected Eurocurrency Rate Loan, Term SOFR Loan or Term RFR Loan is then being made pursuant to a Borrowing, cancel such Borrowing by giving the Administrative Agent written notice thereof on the same date that the Borrower was notified by Lenders pursuant to Section 2.10(a)(ii) or (iii) or (y) if the affected Eurocurrency Rate Loan, Term SOFR Loan or Term RFR Loan is then outstanding, upon at least three Business Days’ notice to the Administrative Agent, require the affected Lender to convert each such Eurocurrency Rate Loan, Term SOFR Loan or Term RFR Loan into an ABR Loan or Daily Simple RFR Loan, provided that if more than one Lender is affected at any time, then all affected Lenders must be treated in the same manner pursuant to this Section 2.10(b).
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(c) If, after the Closing Date, any Change in Law relating to capital adequacy or liquidity of any Lender or compliance by any Lender or its parent with any Change in Law relating to capital adequacy or liquidity occurring after the Closing Date, has or would have the effect of reducing the actual rate of return on such Lender’s or its parent’s or its Affiliate’s capital or assets as a consequence of such Lender’s commitments or obligations hereunder to a level below that which such Lender or its parent or its Affiliate could have achieved but for such Change in Law (taking into consideration such Lender’s or its parent’s policies with respect to capital adequacy or liquidity), then from time to time, promptly after demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender such actual additional amount or amounts as will compensate such Lender or its parent for such actual reduction, it being understood and agreed, however, that a Lender shall not be entitled to such compensation as a result of such Lender’s compliance with, or pursuant to any request or directive to comply with, any law, rule or regulation as in effect on the Closing Date or to the extent such Lender is not imposing such charges on or requesting such compensation from borrowers similarly situated to the Borrower hereunder. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 2.10(c), will give prompt written notice thereof to the Borrower, which notice shall set forth in reasonable detail the basis of the calculation of such additional amounts, although the failure to give any such notice shall not, subject to Section 2.13, release or diminish the Borrower’s obligations to pay additional amounts pursuant to this Section 2.10(c) upon receipt of such notice.
(d) It is understood that this Section 2.10 shall not apply to (i) Indemnified Taxes or Other Taxes or (ii) Excluded Taxes.
Section 2.11 Compensation. If (a) any payment of principal of any Eurocurrency Rate Loan, Term SOFR Loan or Term RFR Loan is made by the Borrower to or for the account of a Lender other than on the last day of the Interest Period for such Eurocurrency Rate Loan, Term SOFR Loan or Term RFR Loan as a result of a payment or conversion pursuant to Section 2.5, 2.6, 2.10, 5.1, 5.2 or 13.7, as a result of acceleration of the maturity of the Loans pursuant to Section 11 or for any other reason, (b) any Borrowing of Eurocurrency Rate Loans, Term SOFR Loans or Term RFR Loans is not made as a result of a withdrawn Notice of Borrowing or a failure to satisfy borrowing conditions, (c) any ABR Loan is not converted into a Eurocurrency Rate Loan, Term SOFR Loan or Term RFR Loan as a result of a withdrawn Notice of Conversion or Continuation, (d) any Eurocurrency Rate Loan, Term SOFR Loan or Term RFR Loan is not continued as a Eurocurrency Rate Loan, Term SOFR Loan or Term RFR Loan, as the case may be, as a result of a withdrawn Notice of Conversion or Continuation or (e) any prepayment of principal of any Eurocurrency Rate Loan, Term SOFR Loan or Term RFR Loan is not made as a result of a withdrawn notice of prepayment pursuant to Section 5.1 or 5.2, the Borrower shall, after receipt of a written request by such Lender (which request shall set forth in reasonable detail the basis for requesting such amount), pay to the Administrative Agent for the account of such Lender any amounts required to compensate such Lender for any additional losses, costs or expenses that such Lender may reasonably incur as a result of such payment, failure to convert, failure to continue or failure to prepay, including any loss, cost or expense (excluding loss of anticipated profits) actually incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any Lender to fund or maintain such Eurocurrency Rate Loan, Term SOFR Loan or Term RFR Loan.
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Section 2.12 Change of Lending Office. Each Lender agrees that, upon the occurrence of any event giving rise to the operation of Section 2.10(a)(ii), 2.10(a)(iii), 2.10(b) or 3.5 with respect to such Lender, or if it requires a Credit Party to pay any Indemnified Taxes or Other Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 5.4, it will, if requested by the Borrower use reasonable efforts (subject to overall policy considerations of such Lender) to designate another lending office for any Loans affected by such event, provided that such designation would eliminate or reduce amounts payable pursuant to Sections 2.10, 3.5 or 5.4, as the case may be, in the future and such designation is made on such terms that such Lender and its lending office suffer no economic, legal or regulatory disadvantage, with the object of avoiding the consequence of the event giving rise to the operation of any such Section. Nothing in this Section 2.12 shall affect or postpone any of the obligations of the Borrower or the right of any Lender provided in Section 2.10, 3.5 or 5.4.
Section 2.13 Notice of Certain Costs. Notwithstanding anything in this Agreement to the contrary, to the extent any notice required by Section 2.10, 2.11, or 3.5 is given by any Lender more than 120 days after such Lender has knowledge (or should have had knowledge) of the occurrence of the event giving rise to the additional cost, reduction in amounts, loss, tax or other additional amounts described in such Sections, such Lender shall not be entitled to compensation under Section 2.10, 2.11, or 3.5, as the case may be, for any such amounts incurred or accruing prior to the 121st day prior to the giving of such notice to the Borrower.
Section 2.14 Incremental Facilities.
(a) The Borrower may by written notice to Administrative Agent elect to request the establishment of one or more (x) additional tranches of term loans(the commitments thereto, the “New Term Loan Commitments”), (y) increases in Revolving Credit Commitments of any Class (the “New Revolving Credit Commitments”) and/or (z) additional tranches of Revolving Credit Commitments (the “Additional Revolving Credit Commitments” and, together with the New Revolving Loan Commitments, the “Incremental Revolving Credit Commitments”; and, together with the New Revolving Credit Commitments and the New Term Loan Commitments, the “New Loan Commitments”), by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $25,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Loan Commitments shall be effective. The Borrower may approach any Lender or any Person (other than a natural person) to provide all or a portion of the New Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the New Loan Commitments may elect or decline, in its sole discretion, to provide a New Loan Commitment. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided, further, that (i) no Event of Default (except in connection with a Limited Condition Transaction, in which case only no Event of Default under Section 11.1 or Section 11.5 shall exist at the time a definitive purchase agreement is entered into for such Limited Condition Transaction) shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, as applicable, (ii) [reserved], (iii) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(e) and (iv) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable. Any New Term Loans made on an Increased Amount Date shall be designated, a separate series (a “Series”) of New Term Loans for all purposes of this Agreement. Each New Loan shall be secured by the same Collateral securing all of the other Obligations hereunder.
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(b) On any Increased Amount Date on which Incremental Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) with respect to New Revolving Credit Commitments, each of the Lenders with Revolving Credit Commitments of such Class shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments of such Class, at the principal amount thereof and in the applicable currency(ies), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments and (b) with respect to Incremental Revolving Credit Commitments, (i) each Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and, each Loan made under a New Revolving Credit Commitment (a “New Revolving Credit Loan”) and each Loan made under an Additional Revolving Credit Commitment (an “Additional Revolving Credit Loan” and, together with New Revolving Credit Loans, the “Incremental Revolving Credit Loan”) shall be deemed, for all purposes, Revolving Credit Loans and (ii) each New Revolving Loan Lender and each Lender with an Additional Revolving Credit Commitment (each an “Additional Revolving Loan Lender” and, together with the New Revolving Loan Lenders, the “Incremental Revolving Loan Lenders”) shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto; provided, that the Administrative Agent, the Swingline Lender and the Letter of Credit Issuer shall have consented (not to be unreasonably withheld or delayed) to such Xxxxxx’s or Incremental Revolving Loan Lender’s providing such Incremental Revolving Credit Commitment to the extent such consent, if any, would be required under Section 13.6(b) for an assignment of Revolving Credit Loans or Revolving Credit Commitments, as applicable, to such Lender or Incremental Revolving Loan Lender.
(c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan” and together with the Incremental Revolving Credit Loans, the “New Loans”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto.
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(d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be on terms and documentation set forth in the Joinder Agreement as determined by the Borrower; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the Initial Term Loan Maturity Date; (ii) the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the Initial Term Loans, (iii) the pricing, interest rate margins, discounts, premiums, rate floors, fees, call protection (if any) and amortization schedule applicable to any New Term Loans shall be determined by the Borrower and the applicable New Term Loan Lenders; and (iv) to the extent such terms and documentation are not substantially consistent with the Initial Term Loans (except to the extent permitted by clause (i), (ii) or (iii) above), they shall be (i) on market terms and conditions (as determined by the Borrower in good faith) or (ii) reasonably satisfactory to the Administrative Agent (except for covenants or other provisions applicable only applicable after the Latest Maturity Date or any existing New Term Loan existing at the time such New Term Loan is incurred) (it being understood that, to the extent that any financial maintenance covenant is added for the benefit of any New Term Loan, no consent shall be required from the Administrative Agent or any of the Term Loan Lenders to the extent that such financial maintenance covenant is (1) also added for the benefit of any existing Loans or (2) only applicable after the Latest Maturity Date).
(e) Incremental Revolving Credit Commitments and Incremental Revolving Credit Loans shall be identical to the Initial Revolving Credit Commitments and the related Revolving Credit Loans, other than the Maturity Date and as set forth in this Section 2.14(e); provided that notwithstanding anything to the contrary in this Section 2.14 or otherwise:
(i) any such Incremental Revolving Credit Commitments or Incremental Revolving Credit Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans,
(ii) any such Incremental Revolving Credit Commitments or Incremental Revolving Credit Loans shall not mature earlier than the Initial Revolving Credit Commitments and related Revolving Credit Loans at the time of incurrence of such Incremental Revolving Credit Commitments,
(iii) the borrowing and repayment (except for (1) payments of interest and fees at different rates on Incremental Revolving Credit Commitments (and related outstandings), (2) repayments required upon the maturity date of the Incremental Revolving Credit Commitments, and (3) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (v) below)) of Loans with respect to Incremental Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Credit Commitments on such Increased Amount Date,
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(iv) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Revolving Credit Commitments of the same Series in accordance with their percentage of such Revolving Credit Commitments on the applicable Increased Amount Date (and without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued in respect of such Series),
(v) the permanent repayment of Revolving Credit Loans with respect to, and termination of, Incremental Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Credit Commitments on such Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such Class on a better than a pro rata basis as compared to any other Class with a later maturity date than such Class,
(vi) assignments and participations of Incremental Revolving Credit Commitments and Incremental Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and Revolving Credit Loans on the applicable Increased Amount Date,
(vii) any Incremental Revolving Credit Commitments may constitute a separate Class or Classes, as the case may be, of Commitments from the Classes constituting the applicable Revolving Credit Commitments prior to such Increased Amount Date, and
(viii) the pricing, fees, maturity and other immaterial terms of the Additional Revolving Credit Loans may be different and shall be determined by the Borrower and the Lenders thereunder so long as the final maturity date and the weighted average maturity of any Additional Revolving Credit Loans and Additional Revolving Credit Commitments, as applicable, shall not be earlier than, or shorter than, as the case may be, the maturity date or the weighted average life, as applicable, of the Initial Revolving Credit Commitments and related Revolving Credit Loans.
(f) Each Joinder Agreement may, without the consent of any other Lenders, effect technical and corresponding amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provision of this Section 2.14.
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(g)
(i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(g). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class which such request shall be offered equally to all such Lenders) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(g) below), (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment and (z) a financial maintenance covenant may be added for the benefit of any Extended Term Loans to the extent that such financial maintenance covenant is (1) also added for the benefit of any existing Loans or (2) only applicable after the Latest Maturity Date; provided that, notwithstanding anything to the contrary in this Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full except in accordance with the last sentence of Section 5.1. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted.
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(ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments of any Class, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(g). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments which such request shall be offered equally to all such Lenders) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”), except (w) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (x) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A), (y) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Commitment Fee Rate for the Specified Existing Revolving Credit Commitment and (z) a financial maintenance covenant may be added for the benefit of any Extended Revolving Credit Loans to the extent that such financial maintenance covenant is (1) also added for the benefit of any existing Loans or (2) only applicable after the Latest Maturity Date, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(g) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Original Revolving Credit Commitments shall be made on a pro rata basis with all other Original Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6. No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date).
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(iii) Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Original Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the L/C Facility Maturity Date may be extended and the related obligations to make Swingline Loans and issue Letters of Credit may be continued so long as the Swingline Lender and/or the applicable Letter of Credit Issuer, as applicable, have consented to such extensions in their sole discretion (it being understood that no consent of any other Lender shall be required in connection with any such extension).
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(iv) Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall be established pursuant to an amendment (an “Extension Amendment”) to this Agreement (which, except to the extent expressly contemplated by the penultimate sentence of this Section 2.14(g)(iv) and notwithstanding anything to the contrary set forth in Section 13.1, shall not require the consent of any Lender other than the Extending Lenders with respect to the Extended Term Loans or Extended Revolving Credit Commitments, as applicable, established thereby) executed by the Credit Parties, the Administrative Agent and the Extending Lenders. No Extension Amendment shall provide for any tranche of Extended Term Loans or Extended Revolving Credit Commitments in an aggregate principal amount that is less than $50,000,000. In addition to any terms and changes required or permitted by Section 2.14(g)(i), each Extension Amendment (x) shall amend the scheduled amortization payments pursuant to Section 2.5 or the applicable Joinder Agreement with respect to the Existing Term Loan Class from which the Extended Term Loans were converted to reduce each scheduled Repayment Amount for the Existing Term Loan Class in the same proportion as the amount of Term Loans of the Existing Term Loan Class is to be converted pursuant to such Extension Amendment (it being understood that the amount of any Repayment Amount payable with respect to any individual Term Loan of such Existing Term Loan Class that is not an Extended Term Loan shall not be reduced as a result thereof) and (y) may, but shall not be required to, impose additional requirements (not inconsistent with the provisions of this Agreement in effect at such time) with respect to the final maturity and weighted average life to maturity of New Term Loans incurred following the date of such Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14(g) and without limiting the generality or applicability of Section 13.1 to any Section 2.14 Additional Amendments, any Extension Amendment may provide for additional terms and/or additional amendments other than those referred to or contemplated above (any such additional amendment, a “Section 2.14 Additional Amendment”) to this Agreement and the other Credit Documents; provided that such Section 2.14 Additional Amendments are within the requirements of Section 2.14(g)(i) and do not become effective prior to the time that such Section 2.14 Additional Amendments have been consented to (including, without limitation, pursuant to (1) consents applicable to holders of New Term Loans and New Revolving Credit Commitments provided for in any Joinder Agreement and (2) consents applicable to holders of any Extended Term Loans or Extended Revolving Credit Commitments provided for in any Extension Amendment) by such of the Lenders, Credit Parties and other parties (if any) as may be required in order for such Section 2.14 Additional Amendments to become effective in accordance with Section 13.1.
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(v) Notwithstanding anything to the contrary contained in this Agreement, (A) on any date on which any Existing Class is converted to extend the related scheduled maturity date(s) in accordance with clauses (i) and/or (ii) above (an “Extension Date”), (I) in the case of the existing Term Loans of each Extending Lender, the aggregate principal amount of such existing Term Loans shall be deemed reduced by an amount equal to the aggregate principal amount of Extended Term Loans so converted by such Lender on such date, and the Extended Term Loans shall be established as a separate Class of Term Loans (together with any other Extended Term Loans so established on such date), and (II) in the case of the Specified Existing Revolving Credit Commitments of each Extending Lender, the aggregate principal amount of such Specified Existing Revolving Credit Commitments shall be deemed reduced by an amount equal to the aggregate principal amount of Extended Revolving Credit Commitments so converted by such Lender on such date, and such Extended Revolving Credit Commitments shall be established as a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date) and (B) if, on any Extension Date, any Loans of any Extending Lender are outstanding under the applicable Specified Existing Revolving Credit Commitments, such Loans (and any related participations) shall be deemed to be allocated as Extended Revolving Credit Loans (and related participations) and Existing Revolving Credit Loans (and related participations) in the same proportion as such Extending Lender’s Specified Existing Revolving Credit Commitments to Extended Revolving Credit Commitments.
Section 2.15 Refinancing Amendments. At any time after the Closing Date, the Borrower may obtain from any existing Lender or any other bank, financial institution or other institutional lender or investor and, in the case of Revolving Credit Commitments, reasonably satisfactory to the Administrative Agent, the Swingline Lender and the Letter of Credit Issuers (any such existing Lender or other Person being called an “Additional Refinancing Lender”), Other Term Loans, Other Revolving Loans, Other Revolving Commitments and/or Other Term Commitments in respect of (a) all or any portion of any Class of Term Loans then outstanding under this Agreement or (b) all or any portion of the Revolving Credit Commitments (including the corresponding portion of the Revolving Credit Loans) under this Agreement, in each case pursuant to a Refinancing Amendment; provided that (i) such Other Term Loans, Other Revolving Loans, Other Revolving Commitments and/or Other Term Commitments may be secured only by assets consisting of Collateral and (ii) the covenants, events of default and guarantees of any Other Term Loans, Other Revolving Loans, Other Revolving Commitments and/or Other Term Commitments are either (i) on market terms and conditions (as determined by the Borrower in good faith) or (ii) not materially more favorable (when taken as a whole) to the Additional Refinancing Lenders than those applicable to the Indebtedness being Refinanced. The effectiveness of any Refinancing Amendment shall be subject to such express conditions as are mutually agreed with the Administrative Agent and the participating Additional Refinancing Lenders. Each Class of Other Term Loans, Other Revolving Loans, Other Revolving Commitments and/or Other Term Commitments (other than in connection with an extension of the maturity of Term Loans, Revolving Credit Loans or Revolving Credit Commitments) incurred under this Section 2.15 shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $10,000,000; provided that such amount may be less than $10,000,000 if such amount represents all the remaining availability under the aggregate principal amount of the applicable Indebtedness being Refinanced. Upon the effectiveness of any Refinancing Amendment in respect of any Other Revolving Commitments, the Revolving Credit Commitments being replaced shall be considered permanently reduced and terminated. Subject to the consent of the Letter of Credit Issuers, any Refinancing Amendment may provide for the issuance of Letters of Credit for the account of the Borrower pursuant to any Other Revolving Commitments established thereby on terms substantially equivalent to the terms applicable to Letters of Credit under this Agreement before giving effect to such Refinancing Amendment. Subject to the consent of the Swingline Lender, any Refinancing Amendment may provide for the making of Swingline Loans pursuant to any Other Revolving Commitments established thereby on terms substantially equivalent to the terms applicable to Swingline Loans under this Agreement before giving effect to such Refinancing Amendment. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Refinancing Amendment, this Agreement shall be deemed amended to the extent (but only to the extent) necessary or reasonably advisable to reflect the existence and terms of the Other Term Loans, Other Revolving Loans, Other Revolving Commitments and/or Other Term Commitments incurred pursuant thereto (including any amendments necessary to treat the Loans and Commitments subject thereto as Other Term Loans, Other Revolving Loans, Other Revolving Commitments and/or Other Term Commitments). Any Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary, or reasonably advisable or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. This Section 2.15 shall supersede any provisions in this Agreement the contrary.
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Notwithstanding anything to the contrary in this Section 2.15 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on Other Revolving Commitments (and related outstandings), (B) repayments required upon the maturity date of the Other Revolving Commitments and (C) repayments made in connection with a permanent repayment and termination of commitments) of Loans with respect to Other Revolving Commitments after the date of obtaining any Other Revolving Commitments shall be made on a pro rata basis with, or a less favorable basis than, all other Revolving Commitments, (2) the permanent repayment of Other Revolving Loans with respect to, and termination of, Other Revolving Commitments after the date of obtaining any Other Revolving Commitments shall be made on a pro rata basis with, or a less favorable basis than, all other Revolving Commitments, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such Class on a non- rata basis as compared to any other Class with a later maturity date than such Class and (3) assignments and participations of Other Revolving Commitments and Other Revolving Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and Revolving Loans.
Section 2.16 Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) the Commitment Fee shall cease to accrue on the Commitment of such Lender so long as it is a Defaulting Lender;
(b) if any Swingline Exposure or Letter of Credit Exposure exists at the time a Lender becomes a Defaulting Lender then:
(i) all or any part of such Swingline Exposure and Letter of Credit Exposure shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Revolving Credit Commitment Percentages but only to the extent the sum of all Non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and Letter of Credit Exposure does not exceed the total of all non- Defaulting Lenders’ Revolving Credit Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (x) first, prepay such Defaulting Lender’s Swingline Exposure and (y) second, cash collateralize such Defaulting Lender’s Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 3.8 for so long as such Letter of Credit Exposure is outstanding;
(iii) if any portion of such Defaulting Lender’s Letter of Credit Exposure is cash collateralized pursuant to clause (ii) above, the Borrower shall not be required to pay the Letter of Credit Fee with respect to such portion of such Defaulting Lender’s Letter of Credit Exposure so long as it is cash collateralized;
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(iv) if any portion of such Defaulting Lender’s Letter of Credit Exposure is reallocated to the Non-Defaulting Lenders pursuant to clause (i) above, then the Letter of Credit Fee with respect to such portion shall be allocated among the Non-Defaulting Lenders in accordance with their Revolving Credit Commitment Percentages; or
(v) if any portion of such Defaulting Lender’s Letter of Credit Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.16(b), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Lender hereunder, the Letter of Credit Fee payable with respect to such Defaulting Lender’s Letter of Credit Exposure shall be payable to the Letter of Credit Issuer until such Letter of Credit Exposure is cash collateralized and/or reallocated;
(c) so long as any Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and the Letter of Credit Issuer shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the Non-Defaulting Lenders and/or cash collateralized in accordance with Section 2.16(b), and participations in any such newly issued or increased Letter of Credit or newly made Swingline Loan shall be allocated among Non-Defaulting Lenders in accordance with their respective Revolving Credit Commitment Percentages (and Defaulting Lenders shall not participate therein); and
(d) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 13.8(a) but excluding Section 13.7) may, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated non- interest bearing account and, subject to any applicable Requirements of Law, be applied at such time or times as may be determined by the Administrative Agent (i) first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to the Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, to the funding of any Loan or the funding or cash collateralization of any participation in any Swingline Loan or Letter of Credit in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (iv) fourth, if so determined by the Administrative Agent and Holdings, held in such account as cash collateral for future funding obligations of the Defaulting Lender under this Agreement, (v) fifth, pro rata, to the payment of any amounts owing to the Borrower or the Lenders as a result of any judgment of a court of competent jurisdiction obtained by the Borrower or any Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement and (vi) sixth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or Reimbursement Obligations which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or Reimbursement Obligations owed to, any Defaulting Lender.
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In the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer or the Swingline Lender, as the case may be, each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and Letter of Credit Exposure of the Lenders shall be readjusted to reflect the inclusion of such Xxxxxx’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Revolving Credit Commitment Percentage. The rights and remedies against a Defaulting Lender under this Section 2.16 are in addition to other rights and remedies that the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender and the Non-Defaulting Lenders may have against such Defaulting Lender. The arrangements permitted or required by this Section 2.16 shall be permitted under this Agreement, notwithstanding any limitation on Liens or the pro rata sharing provisions or otherwise.
Section 2.17 Alternate Rate of Interest.
(a) Circumstances Affecting Eurocurrency Rate, Daily Simple RFR, Term SOFR and Term RFR Availability.
(i)
Subject to clause (c) below, in connection with any RFR Loan or, on and after the USD LIBOR Transition
Date, any ABR Loan, a request therefor, a conversion to or a continuation thereof or otherwise, if for any reason (A) the
Administrative Agent shall determine (which determination shall be conclusive and binding absent manifest error) that (w)
if Adjusted Term SOFR is utilized in any calculations hereunder or under any other Credit Document with respect to any Obligations, interest,
fees, commissions or other amounts, “Adjusted Term SOFR” cannot be determined pursuant to the definition thereof, (x)
if Daily Simple RFR is utilized in any calculations hereunder or under any other Credit Document with respect to any Obligations, interest,
fees, commissions or other amounts, “Daily Simple RFR” cannot be determined pursuant to the definition thereof or (y) if
Term RFR is utilized in any calculations hereunder or under any other Credit Document with respect to any Obligations, interest, fees,
commissions or other amounts, “Term RFR” cannot be determined pursuant to the definition thereof on or prior to the first
day of any Interest Period or (B) the Administrative Agent shall determine (which determination shall be conclusive and binding
absent manifest error) that a fundamental change has occurred in the foreign exchange markets with respect to an applicable Alternative
Currency (including changes in national or international financial, political or economic conditions or currency exchange rates or exchange
controls), then the Administrative Agent shall promptly give notice thereof to the Borrower. Upon notice thereof by the Administrative
Agent to the Borrower, (A) any obligation of the Lenders to make RFR Loans in each such Agreed Currency, and any right of the Borrower
to convert any Loan in each such Agreed Currency (if applicable) or continue any Loan as an RFR Loan is each such Agreed Currency, shall
be suspended (to the extent of the affected RFR Loans or, in the case of Term RFR Loans, the affected Interest Periods) until the Administrative
Agent revokes such notice and (B) if such determination affects the calculation of ABR, the Administrative Agent shall during the
period of such suspension compute ABR without reference to clause (c) of the definition of “ABR” until the Administrative
Agent revokes such notice. Upon receipt of such notice, (A) the Borrower may revoke any pending request for a borrowing of, conversion
to or continuation of RFR Loans in each such affected Agreed Currency (to the extent of the affected RFR Loans or, in the case of aTerm
SOFR Loans or Term RFR Loans, the affected Interest Periods) or, failing that, (I) in the case of any request for a borrowing
of an affected Term RSOFR
Loan in Dollars, the Borrower will be deemed to have converted any such request into
a request for a borrowing of or conversion to ABR Loans in the amount specified therein and (II) in the case of any request for
a borrowing of an affected RFR Loan in an Alternative Currency, then such request shall be ineffective and (B)(I) any outstanding
affected Term RSOFR
Loans denominated in Dollars will be deemed to have been converted into ABR Loans immediately
or, in the case of Term RFR Loans, at the end of the applicable Interest Period and (II) any outstanding affected RFR Loans denominated
in an Alternative Currency, at the Borrower’s election, shall either (1) be converted into ABR Loans denominated in Dollars (in
an amount equal to the Dollar Equivalent of such Alternative Currency) immediately or, in the case of Term RFR Loans, at the end of the
applicable Interest Period or (2) be prepaid in full, together with accrued interest thereon, immediately or, in the case of Term RFR
Loans, at the end of the applicable Interest Period; provided that if no election is made by the Borrower by the date that is
three (3) Business Days after receipt by the Borrower of such notice or, in the case of Term RFR Loans, the last day of the current Interest
Period for the applicable RFR Loan, if earlier, the Borrower shall be deemed to have elected clause (1) above. Upon any such prepayment
or conversion, the Borrower shall also pay any additional amounts required pursuant to Section 2.11.
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(ii)
Subject to clause (c) below, if, for any reason (x) on or prior to the first day
of any Interest Period with respect to a Eurocurrency Rate Loan or (y) prior to the USD LIBOR Transition
Date, on any day with respect to a ABR Loan, in connection with a request therefor, a conversion to or a continuation
thereof or otherwise, (A) the Administrative Agent shall determine (which determination shall be conclusive and binding absent manifest
error) that deposits are not being offered to banks in the London or other applicable offshore interbank market for the applicable Agreed
Currency, amount and Interest Period of such Loan (or, with respect to any ABR Loan, for a one month term), (B) the Administrative Agent
shall determine (which determination shall be conclusive and binding absent manifest error) that a fundamental change has occurred in
the foreign exchange or interbank markets with respect to the applicable Alternative Currency (including changes in national or international
financial, political or economic conditions or currency exchange rates or exchange controls), (C) the Administrative Agent shall determine
(which determination shall be conclusive and binding absent manifest error) that reasonable and adequate means do not exist for the ascertaining
the Adjusted Eurocurrency Rate or Adjusted Term SOFR for such Agreed Currency and Interest Period,
including because the Screen Rate for the applicable Agreed Currency is not available or published on a current basis, or (D) the Required
Lenders shall determine (which determination shall be conclusive and binding absent manifest error) that the Adjusted Eurocurrency Rate
or Adjusted Term SOFR does not adequately and fairly reflect the cost to such Lenders of making
or maintaining such Loans during such Interest Period and shall have provided notice of such determination to the Administrative Agent,
then the Administrative Agent shall promptly give notice thereof to the Borrower. Thereafter, until the Administrative Agent notifies
the Borrower that such circumstances no longer exist, (x) any obligation of the Lenders to make Eurocurrency Rate Loans in each such
Agreed Currency, and any right of the Borrower to convert any Loan in each such Agreed Currency (if applicable) or continue any Loan
as a Eurocurrency Rate Loan is each such Agreed Currency (in each case, to the extent of the affected Eurocurrency Rate Loans or Interest
Periods), shall be suspended and (I) any outstanding affected Eurocurrency RateTerm
SOFR Loans denominated in Dollars will be deemed to have been converted into
ABR Loans at the end of the applicable Interest Period and (II) any outstanding affected Eurocurrency Rate Loans denominated in
an Alternative Currency, at the Borrower’s election, shall either (1) be converted into ABR Loans denominated in Dollars (in
an amount equal to the Dollar Equivalent of such Alternative Currency) at the end of the applicable Interest Period or (2) be prepaid
in full, together with accrued interest thereon, at the end of the applicable Interest Period; provided that if no election is
made by the Borrower by the date that is three (3) Business Days after receipt by the Borrower of such notice or, in the case of Eurocurrency
Rate Loans, the last day of the current Interest Period for the applicable Eurocurrency Rate Loan, if earlier, the Borrower shall be
deemed to have elected clause (1) above, and (y) if such determination pursuant to Section 2.17(a)(ii) affects the calculation
of ABR, the Administrative Agent shall during the period of such suspension compute ABR without reference to clause (c) of the definition
of “ABR”. Upon any such prepayment or conversion, the Borrower shall also pay any additional amounts required pursuant to
Section 2.11.
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(b)
Laws Affecting Adjusted Eurocurrency Rate, Term SOFR, Daily Simple RFR and Term RFR Availability.
If, after the date hereof, the introduction of, or any change in, any Applicable Law or any change in the interpretation or administration
thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or
compliance by any of the Lenders (or any of their respective Lending Offices) with any request or directive (whether or not having the
force of law) of any such Governmental Authority, central bank or comparable agency, shall make it unlawful or impossible for any of
the Lenders (or any of their respective Lending Offices) to honor its obligations hereunder to make or maintain any Daily Simple RFR
Loan, Term RFR Loan, Term SOFR Loan or Eurocurrency RFR Loan, or to determine or charge interest
based upon any applicable RFR, Daily Simple RFR, Term RFR, Eurocurrency Rate or,
Adjusted Eurocurrency Rate, Term SOFR Reference Rate, Term SOFR or Adjusted Term SOFR,
such Lender shall promptly give notice thereof to the Administrative Agent and the Administrative Agent shall promptly give notice to
the Borrower and the other Lenders. Thereafter, until the Administrative Agent notifies the Borrower that such circumstances no longer
exist, (i) any obligation of the Lenders to make RFR Loans or Eurocurrency Rate Loans, as applicable, in the affected Agreed Currency
or Agreed Currencies, and any right of the Borrower to convert any Loan denominated in Dollars to xxx
Term RSOFR Loan or
a Eurocurrency Rate Loan or continue any Loan as an RFR Loan or a Eurocurrency Rate Loan, as applicable, in the affected
Agreed Currency or Agreed Currencies shall be suspended and (ii) if necessary to avoid such illegality, the Administrative Agent shall
compute the ABR without reference to clause (c) of the definition of “ABR”, in each case until each such affected Lender
notifies the Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt
of such notice, (A) the Borrower shall, if necessary to avoid such illegality, upon demand from any Lender (with a copy to the Administrative
Agent), prepay or, if applicable, (I) convert all Term RSOFR
Loans or Eurocurrency Rate Loans denominated in Dollars to ABR Loans or (II) convert
all RFR Loans or Eurocurrency Rate Loans denominated in an affected Alternative Currency to ABR Loans denominated in Dollars (in an amount
equal to the Dollar Equivalent of such Alternative Currency) (in each case, if necessary to avoid such illegality, the Administrative
Agent shall compute the ABR without reference to clause (c) of the definition of “ABR”), (1) with respect to Daily Simple
RFR Loans, on the interest payment date pursuant to Section 2.8(d) therefor, if all affected Lenders may lawfully continue to
maintain such Daily Simple RFR Loans to such day, or immediately, if any Lender may not lawfully continue to maintain such Daily Simple
RFR Loans to such day or (2) with respect to Eurocurrency Rate Loans, Term SOFR Loans or Term
RFR Loans, on the last day of the Interest Period therefor, if all affected Lenders may lawfully continue to maintain such Eurocurrency
Rate Loans, Term SOFR Loans or Term RFR Loans, as applicable, to such day, or immediately, if
any Lender may not lawfully continue to maintain such Eurocurrency Rate Loans, Term SOFR Loans
or Term RFR Loans, as applicable, to such day and (B) if necessary to avoid such illegality, the Administrative Agent shall during the
period of such suspension compute the ABR without reference to clause (c) of the definition of “ABR”, in each case until
the Administrative Agent is advised in writing by each affected Lender that it is no longer illegal for such Lender to determine or charge
interest rates based upon Daily Simple RFR, Term RFR, the Eurocurrency Rate or,
Adjusted Eurocurrency Rate, Term SOFR Reference Rate, Term SOFR or Adjusted Term SOFR, as
applicable. Upon any such prepayment or conversion, the Borrower shall also pay any additional amounts required pursuant to Section
2.11.
(c) Benchmark Replacement Setting.
(i) Benchmark Replacement.
(A)
Notwithstanding anything to the contrary herein or in any other Credit Document, if the USD LIBOR Transition Date has occurred prior
to the Reference Time in respect of any setting of the Adjusted Eurocurrency Rate for Dollars, then (x) if a Benchmark Replacement
is determined in accordance with clause (b)(1) or (b)(2) of the definition of “Benchmark Replacement” for the USD LIBOR
Transition Date, such Benchmark Replacement will replace the then-current Benchmark with respect to Obligations, interest, fees,
commissions or other amounts denominated in, or calculated with respect to, Dollars for all purposes hereunder and under any Credit
Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or
consent of any other party to, this Agreement or any other Credit Document and (y) if a Benchmark Replacement is determined in
accordance with clause (b)(3) of the definition of “Benchmark Replacement” for the USD LIBOR Transition Date, such
Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Credit Document in respect of any
Benchmark setting at or after 5:00 p.m. on the fifth (5th) Business Day after the date notice of such Benchmark
Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement
or any other Credit Document so long as the Administrative Agent has not received, by such time, written notice of objection to such
Benchmark Replacement from Lenders comprising the Required Lenders of each Class.
(A) [reserved].
(B)
Notwithstanding anything to the contrary herein or in any other Credit Document, upon the occurrence of a Benchmark Transition Event
or an Other Benchmark Rate Election, as applicable, with respect to any Benchmark, the
Administrative Agent and the Borrower may amend this Agreement to replace such Benchmark with a Benchmark Replacement. Any such amendment
with respect to a Benchmark Transition Event or an Other Benchmark Rate Election, as applicable,
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 affected Lenders and the Borrower so long as the Administrative Agent has not received, by such time, written notice
of objection to such amendment from Lenders comprising the Required Lenders of the applicable Class. No replacement of a Benchmark with
a Benchmark Replacement pursuant to this Section 2.17(c)(i)(B) will occur prior to the applicable Benchmark Transition Start Date.
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(C) Notwithstanding anything to the contrary herein or in any other Credit Document and subject to the proviso below in this paragraph, if a Term RFR Transition Date has occurred prior to the Reference Time in respect of any setting of the then-current Benchmark consisting of a Daily Simple RFR (including a Daily Simple RFR implemented as a Benchmark Replacement pursuant to Section 2.17(c)(i)(A) or Section 5.8(c)(i)(B)) for the applicable Agreed Currency, then the applicable Benchmark Replacement will replace such Benchmark for all purposes hereunder or under any Credit Document in respect of such Benchmark for the applicable Agreed Currency setting and subsequent Benchmark settings, without any amendment to, or further action or consent of any other party to, this Agreement or any other Credit Document; provided that this clause (C) shall not be effective unless the Administrative Agent has delivered to the Lenders and the Borrower a Term RFR Notice with respect to the applicable Term RFR Transition Event. For the avoidance of doubt, the Administrative Agent shall not be required to deliver a Term RFR Notice after a Term RFR Transition Event and may elect or not elect to do so in its sole discretion.
(ii) Benchmark Replacement Conforming Changes. In connection with the implementation of a Benchmark Replacement, the Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Credit 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 or any other Credit Document.
(iii) Notices; Standards for Decisions and Determinations. The Administrative Agent will promptly notify the Borrower and the Lenders of (A) the implementation of any Benchmark Replacement and (B) the effectiveness of any Benchmark Replacement Conforming Changes. The Administrative Agent will promptly notify the Borrower of the removal or reinstatement of any tenor of a Benchmark pursuant to Section 2.17(c)(iv). Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 2.17(c), including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, 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 to this Agreement or any other Credit Document, except, in each case, as expressly required pursuant to this Section 2.17(c).
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(iv)
Unavailability of Tenor of Benchmark. Notwithstanding anything to the contrary herein or in any other Credit Document, at any
time (including in connection with the implementation of a Benchmark Replacement), (A) if any then-current Benchmark is a term rate
(including any Term RFR or, Adjusted Eurocurrency
Rate or Adjusted Term SOFR) and either (I) any tenor for such Benchmark is not displayed on a
screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable
discretion or (II) the regulatory supervisor for the administrator of such Xxxxxxxxx has provided a public statement or publication of
information announcing that any tenor for such Benchmark is or will be no longer representative, then the Administrative Agent may modify
the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such
time to remove such unavailable or non-representative tenor and (B) if a tenor that was removed pursuant to clause (A) above either
(I) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (II) is not,
or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement),
then the Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for
all Benchmark settings at or after such time to reinstate such previously removed tenor.
(v)
Benchmark Unavailability Period. Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability
Period with respect to a given Benchmark, the Borrower may revoke any pending request for a borrowing of, conversion to or continuation
of RFR Loans or Eurocurrency Rate Loans, in each case, to be made, converted or continued during any Benchmark Unavailability Period
denominated in the applicable Agreed Currency and, failing that, (A)(I) in the case of any request for any affected Term
RSOFR Loans
or a Eurocurrency Rate Loans, in each case, denominated in Dollars, if applicable,Loans,
the Borrower will be deemed to have converted any such request into a request for a borrowing of or conversion to ABR Loans
in the amount specified therein and (II) in the case of any request for any affected RFR Loan or Eurocurrency Rate Loan, in each case,
in an Alternative Currency, if applicable, then such request shall be ineffective and (B)(I) any outstanding affected Term
RSOFR Loans or
Eurocurrency Rate Loans, in each case, denominated in Dollars, if applicable, will be deemed to have been converted into
ABR Loans immediately or, in the case of Term RFR Loans or Eurocurrency Rate Loans,
at the end of the applicable Interest Period and (II) any outstanding affected RFR Loans or Eurocurrency Rate Loans, in each case, denominated
in an Alternative Currency, at the Borrower’s election, shall either (1) be converted into ABR Loans denominated in Dollars (in
an amount equal to the Dollar Equivalent of such Alternative Currency) immediately or, in the case of Term RFR Loans or Eurocurrency
Rate Loans, at the end of the applicable Interest Period or (2) be prepaid in full immediately or, in the case of Term RFR Loans or Eurocurrency
Rate Loans, at the end of the applicable Interest Period; provided that, with respect to any Daily Simple RFR Loan, if no election
is made by the Borrower by the date that is three (3) Business Days after receipt by the Borrower of such notice, the Borrower shall
be deemed to have elected clause (1) above; provided, further that, with respect to any Eurocurrency Rate Loan or Term RFR Loan,
if no election is made by the Borrower by the earlier of (x) the date that is three (3) Business Days after receipt by the Borrower of
such notice and (y) the last day of the current Interest Period for the applicable Eurocurrency Rate Loan or Term RFR Loan, the Borrower
shall be deemed to have elected clause (1) above. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest
on the amount so prepaid or converted, together with any additional amounts required pursuant to Section 2.11. During a Benchmark
Unavailability Period with respect to any Benchmark or at any time that a tenor for any then-current Benchmark is not an Available Tenor,
the component of ABR based upon the then-current Benchmark that is the subject of such Benchmark Unavailability Period or such tenor
for such Benchmark, as applicable, will not be used in any determination of ABR.
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Section 3. Letters of Credit
Section 3.1 Letters of Credit.
(a) Subject to and upon the terms and conditions herein set forth, at any time and from time to time after the Closing Date and prior to the L/C Facility Maturity Date, the Letter of Credit Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Closing Date through the L/C Facility Maturity Date upon the request of, and for the direct or indirect benefit of, Holdings, the Borrower and the Restricted Subsidiaries, a letter of credit or letters of credit (the “Letters of Credit” and each, a “Letter of Credit”) in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion; provided that the Borrower shall be a co-applicant and shall be jointly and severally liable with respect to, each Letter of Credit issued for the account of Holdings or a Restricted Subsidiary.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effect; (ii) no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) [reserved]; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereof (except as set forth in Section 3.2(d)), provided that in no event shall such expiration date occur later than the L/C Facility Maturity Date, in each case, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuer; (v) each Letter of Credit shall be denominated in Dollars, Euro or an Alternative Currency; (vi) no Letter of Credit shall be issued if it would be illegal under any applicable law for the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favor; and (vii) no Letter of Credit shall be issued by a Letter of Credit Issuer after it has received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1.
(c) Upon at least two Business Days’ prior written notice to the Administrative Agent and the Letter of Credit Issuer (which the Administrative Agent shall promptly notify the applicable Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) The parties hereto agree that the Existing Letters of Credit shall be deemed to be Letters of Credit for all purposes under this Agreement, without any further action by the Borrower, the Letter of Credit Issuer or any other Person.
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(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the Letter of Credit Issuer in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of Credit;
(iv) unless otherwise agreed by the Administrative Agent and the applicable Letter of Credit Issuer, such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(v) unless otherwise agreed by the Administrative Agent and the applicable Letter of Credit Issuer, the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Borrower has entered into arrangements satisfactory to the Letter of Credit Issuer to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lender.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
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(h) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
Section 3.2 Letter of Credit Requests.
(a) Whenever the Borrower desires that a Letter of Credit be issued for its account or amended, it shall give the Administrative Agent and the Letter of Credit Issuer a Letter of Credit Request by no later than 1:00 p.m. (New York City time) at least two (or such lesser number as may be agreed upon by the Administrative Agent and the Letter of Credit Issuer) Business Days prior to the proposed date of issuance or amendment. Each notice shall be executed by the Borrower and shall be substantially in the form of Exhibit E (each a “Letter of Credit Request”).
(b) In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Request shall specify in form and detail satisfactory to the Letter of Credit Issuer: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the Stated Amount thereof in the relevant currency; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder and (G) such other matters as the Letter of Credit Issuer may reasonably require. In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Request shall specify in form and detail reasonably satisfactory to the Letter of Credit Issuer (A) the Letter of Credit to be amended; (B) the proposed date of amendment thereof (which shall be a Business Day); (C) the nature of the proposed amendment; and (D) such other matters as the Letter of Credit Issuer may reasonably require. Additionally, the Borrower shall furnish to the Letter of Credit Issuer and the Administrative Agent such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as the Letter of Credit Issuer or the Administrative Agent may reasonably require.
(c) Promptly after receipt of any Letter of Credit Request, the Letter of Credit Issuer will confirm with the Administrative Agent in writing that the Administrative Agent has received a copy of such Letter of Credit Request from the Borrower and, if not, the Letter of Credit Issuer will provide the Administrative Agent with a copy thereof. Unless the Letter of Credit Issuer has received written notice from any Revolving Credit Lender, the Administrative Agent or any Credit Party, at least one Business Day prior to the requested date of issuance or amendment of the applicable Letter of